Citation Nr: 1315602 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 08-20 583 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran had active service from October 1950 to September 1952, followed by an additional period of service in the Army Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which in pertinent part, denied service connection for a left knee disability. The Veteran testified before the undersigned Veterans Law Judge at a hearing held at the RO in March 2012. Thereafter, in June 2012 and February 2013 the Board remanded the claim for additional development, which has been completed. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT The most probative evidence indicates the Veteran's current left knee disability is not related to service. CONCLUSION OF LAW The requirements for establishing entitlement to service connection for a left knee disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The notice requirements were accomplished in a letter sent in September 2005. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). An April 2006 letter provided notice of the type of evidence necessary to establish a disability rating or effective date for the claimed disability under consideration, pursuant to the recent holding in Dingess v. Nicholson, 19 Vet App 473 (2006). Both letters were issued prior to the decision on appeal. The Veteran was afforded a March 2012 Travel Board hearing before the undersigned Veterans Law Judge. The United States Court of Appeals for Veterans Claims has held that, under 38 C.F.R. § 3.103(c)(2), a VA officer who chairs a hearing has the duty to explain the issues and to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). However, the Veteran has not contended, and the evidence does not otherwise show, that the undersigned Veterans Law Judge committed prejudicial error, either by failing to adequately apprise the Veteran of the issue presented or by neglecting to suggest the submission of helpful evidence that may otherwise have been overlooked. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.103(c)(2); Bryant, 28 Vet. App. at 296. On the contrary, the hearing transcript reflects that the Veterans Law Judge identified the issues and also elicited testimony from the Veteran regarding his theories as to why service connection was warranted for his claimed left knee disorder. The Veteran's testimony alerted the Board to the need for additional evidentiary development, which was thereafter accomplished to the extent possible pursuant to the August 2012 and February 2013 remands. Therefore, the above Veterans Law Judge not only succeeded in explaining the relevant issues "in terms of the scope of the claims for benefits," but also fully articulated "the outstanding issues material to substantiating the claims." Bryant, 23 Vet. App. at 497. In any event, the Board observes that, during the pendency of his appeal, the Veteran has displayed actual knowledge of the bases for the prior denials of his service connection claim as well as the particular elements that have been found lacking in connection with that claim. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (explaining that actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim). Thus, no further action pursuant to Bryant or 38 C.F.R. §3.103(c)(2) is necessary. The Board also finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained. Relevant to VA's duty to assist, the RO made multiple attempts to obtain the Veteran's service treatment records through the National Personnel Records Center (NPRC), but was informed by that facility that such records were presumed to have been destroyed in a July 1973 fire. Consequently, the RO contacted the Veteran and elicited information in an attempt to reconstruct his service medical data. That information was relayed to the NPRC, which responded with copies of sick call reports from three occasions in April 1952. The Veteran's remaining service treatment records were deemed permanently lost. Accordingly, the RO issued an October 2006 formal finding that those records were unavailable. Consequently, the Board finds that VA met its obligation to search for alternative records that might support the Veteran's case. Cuevas v. Principi, 3 Vet. App. 542 (1992). Moreover, the Board finds that additional efforts to obtain the Veteran's service treatment records would be futile and are therefore unwarranted. The claimant was provided the opportunity to present pertinent evidence. The Virtual VA file and available private and VA treatment records have been obtained. In addition, he has been provided with VA examinations in connection with his present claim. He has not indicated there are any additional records that VA should seek to obtain on his behalf. Therefore, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claims, and no further assistance to develop evidence is required. Service Connection The Veteran contends that he has a left knee disability that was incurred in service. Specifically, the Veteran asserts that he injured his left knee during combat service when an explosion from a mortar or artillery round threw him to the ground. He has indicated that while he initially tried to ignore the left knee pain it has continued. He also indicated in a January 2007 written statement that he hurt his left knee during field training exercises in 1951, which resulted in a 48-hour period of pain and swelling in the affected joint. After 48 hours, the pain and swelling of gradually subsided. The Veteran's account of combat-related left knee injury is supported by his service personnel records, which confirm that he received the combat infantry badge. Given that objective recognition of the Veteran's combat service, the Board will consider his claim for service connection under the evidentiary standards set forth in 38 U.S.C.A. § 1154(b). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Moreover, where a Veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). When, as in the instant case, there is evidence that the Veteran engaged in combat, satisfactory lay or other evidence of an injury sustained in the line of such duty shall be accepted as sufficient proof of in-service incurrence if the evidence is consistent with the circumstances of service, even when there is no official record of service incurrence of the injury. 38 U.S.C.A. § 1154(b) (West 2002). However, competent evidence demonstrating a present disability or a nexus between present a disability and some remote injury or disease of active service is still required. See Cohen (Douglas) v. Brown, 10 Vet. App. 128, 138 (1997) ("[s]ection 1154(b) provides a factual basis upon which a determination can be made that a particular disease or injury was incurred or aggravated in service but not a basis to link etiologically the condition in service to the current condition"). The Board also observes that where, as here, service records are unavailable, VA has a heightened duty to provide reasons and bases for its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The absence of service records, however, does not obviate the need for probative evidence of current disability and a link to active duty. See Russo v. Brown, 9 Vet. App. 46 (1996). The Board has reviewed all the evidence in the appellant's claims file and electronic Virtual VA file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In this case, the Veteran's only available service treatment records - a handful of sick leave reports dated April 9, 1952; April 11, 1952; and April 13, 1952 - are devoid of any complaints or clinical findings of left knee problems. However, the Board considers the Veteran's assertions of active duty left knee injury to be consistent with the circumstances of his documented combat service. Thus, affording the Veteran the benefit of the doubt, the Board accepts his account of such in-service injuries, notwithstanding the lack of official confirmation. 38 U.S.C.A. § 1154(b) (West 2002); Cohen, supra. Nevertheless, in order to prevail in his claims for service connection, he must still demonstrate an etiological link between the in-service injuries and current left knee disability. In written statements and Board testimony, the Veteran reported that following the in-service left knee injury a clinician recommended surgical removal of the cartilage, but he refused and instead resumed his duties with his unit. The Veteran attested to chronic left knee symptoms that persisted on a continuous basis since service and progressively worsened over time. However, the Veteran denied seeking treatment for the left knee during his Reserve service or for many years thereafter. After service, a VA treatment record in June 2005 noted complaints of clicking in the left knee without pain. He related a history of an in-service injury to the left knee for which he was treated during service. In December 2006, he was seen for occasional left knee pain. He reported injuring his left knee in service. A psychiatric treatment note in January 2009 also recorded the Veteran's report of a knee injury incurred in Korea during combat. In July 2010 the Veteran underwent a VA examination to address the whether his current left knee disorder was related to service. The Veteran related onset of left knee pain after he injured his knee in active duty. The pain had continued post-service discharge and he currently described intermittent mild pain that was progressively worse. The examiner noted crepitus and tenderness in the left knee. The examiner related a contradictory history of the Veteran having no history of trauma. The examiner noted that prior x-rays revealed degenerative changes consistent with a diagnosis of left knee arthritis. The examiner diagnosed left knee osteoarthritis/degenerative joint disease and opined that the condition was less likely as not caused by or the result of in-service injuries. The examiner explained that the Veteran exhibited normal age-related degeneration of the left knee, as it was symmetrical to the right knee. Accordingly, these changes were most likely normal age-related degenerative changes. However, no reference to the history of injury as reported in the lay statements and testimony was made. The Board remanded the claim for the VA examiner to consider the Veteran's assertions of a left knee combat injury and his account of a separate in-service left knee injury incurred during field training exercises. The record thereafter shows that the Veteran was afforded a July 2012 VA joints examination in which he reiterated his account of in-service left knee injuries. The examiner opined that those purported in-service injuries had not resulted in any current left knee disorders, and further concluded that a left knee diagnosis was improper because there was no evidence on physical examination showing left knee pathology and his x-rays were normal. As the VA examiner declined to consider the x-ray evidence of left knee disability, as previously noted in the July 2010 VA examination report, the opinion was found to be inadequate for rating purposes and the Board remanded the claim to obtain an addendum opinion. In a March 2013 addendum opinion, the examiner who examined the Veteran in July 2012 acknowledged the diagnosis of left knee osteoarthritis, the Veteran's report of in-service knee trauma, and his current complaints of intermittent knee pain and popping, and opined that the Veteran's left knee disability was not caused by or the result of injuries incurred in active duty service. The examiner explained that the Veteran's in-service left knee injuries were soft tissue injuries because the evidence failed to show any type of intra-articular damage while on active duty such as persistent instability, knee locking, or knee catching from the time of injury. If the Veteran had developed traumatic arthritis due to the in-service injuries, he would have been symptomatic within 2 years of the left knee trauma. Soft tissue injuries would not cause, contribute to or enhance the progression of the currently diagnosed osteoarthritis. Osteoarthritis was most likely the result of age. That examiner's findings were based not only on the Veteran's lay statements and the recently submitted VA treatment records but also on the other pertinent evidence of record, to include previous VA examination findings. The examiner conducted comprehensive clinical examination of the Veteran in July 2012 and evidentiary review, thereby demonstrating his familiarity with the Veteran's pertinent medical and lay history. Additionally, the examiner provided a definitively negative nexus opinion, which not only addressed pertinent facts and medical principles but also clearly explained why the Veteran's left knee problems were unrelated to the injuries incurred in service. The examiner's conclusion is fully explained, is consistent with the competent and credible evidence of record, and is unequivocal in its finding that the Veteran's left knee disability was not incurred in service. Prejean v. West, 13 Vet. App. 444 (2000). Moreover, the Board observes that the conclusions reached by the 2013 and 2010 VA examiners were essentially identical. Indeed, both sets of examiners concurred as to the lack of any nexus between the Veteran's active service and his current left knee problems and instead attributed the left knee degenerative changes to aging. In this regard the record shows that the VA examiner in July 2010 indicated upon reviewing x-ray findings, that the Veteran exhibited normal age-related degeneration of the left knee as it was symmetrical to the right knee. Furthermore, there are no countervailing medical opinions of record and, thus, no probative basis to question those negative nexus findings. The Board recognizes that as a lay person, the Veteran is competent to report a history of in-service and post-service left knee symptoms, which are within the realm of his personal experience. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Indeed, that is why his account of such symptomatology was a crucial element for consideration by the VA examiners. In this case, the diagnosis of degenerative changes of the left knee was based on results of clinical testing. Therefore, the disability is not a simple medical condition that a lay person is competent to identify as a lay person is not qualified through education, training, or experience to interpret radiographs. The Veteran has not demonstrated that he has the expertise to comment on complicated medical issues, such as the nature and etiology of his current left knee problems. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). That is particularly significant where, as here, the Veteran has been diagnosed with left knee osteoarthritis many years after his discharge from the military. The inherent complexity of the current condition makes it difficult to determine whether such disability is related to service. Moreover, whether the symptoms the Veteran reportedly experienced in service or following service are in any way related to his current disability is a matter that also requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the Veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Thus, the Veteran's opinion as to the etiology of his left knee osteoarthritis is not competent medical evidence, and the Board accords significantly greater probative weight to the opinion of the VA examiner who conducted the July 2012 examination and provided the March 2013 addendum. Moreover, despite the Veteran's current assertions of continuous left knee symptoms since service, he has reported foregoing treatment for many decades after active duty discharge to include during his Reserve service. Nevertheless, the Board has reason to question the reliability of such reported symptoms where, as here, the Veteran has not explained his delay in seeking relevant treatment, nor argued that those symptoms were continuous prior to pursuing his current claim. Under such circumstances, the Board considers the absence of relevant post-service complaints and clinical findings to be more probative than the Veteran's current reports of continuous left knee symptoms, which were raised in direct support of his appeal. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991); Pond v. West, 12 Vet. App. 341 (1999) (self-interest may affect the credibility of testimony); Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (Board may reject such statements of the Veteran if rebutted by the overall weight of the evidence). In light of the foregoing, the Board finds that, while the Veteran's reports of in-service left knee injuries are consistent with the terms of his combat service and are therefore deemed credible, the probative evidence of record weighs against the finding of a nexus between those in-service injuries and his currently diagnosed left knee osteoarthritis. Thus, while cognizant that arthritis need not manifest in service in order to establish service connection under current VA law, the Board finds that, given the particular evidence presented in this case, service connection is not warranted on a direct basis. Further, as there is no competent evidence indicating that the Veteran suffered from arthritis of the left knee within one year following discharge from service, service connection on a presumptive basis is also not warranted. See 38 C.F.R. §§ 3.307, 3.309. In summary, the most probative evidence of record indicates that the Veteran's current left knee disability is not related service, and there is no competent evidence of arthritis within one year following discharge from service. Thus, the Board finds that the preponderance of the evidence is against the claim for service connection for a left knee disability, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a left knee disability is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs