Citation Nr: 1315708 Decision Date: 05/13/13 Archive Date: 05/15/13 DOCKET NO. 06-03 521A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: Peter J. Meadows, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Scott Walker, Counsel INTRODUCTION The Veteran served on active duty from October 1966 to May 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified at a hearing before a Decision Review Officer at the RO in December 2005, and testified at a hearing before the undersigned Veterans Law Judge (VLJ) in February 2009. A copy of each transcript has been associated with the record. A May 2009 Board decision denied service connection for a left knee disability. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims. Subsequent to the filing of a Joint Motion for Partial Remand, the Court remanded the claim of service connection for a left knee disability in a February 2010 Order. The parties to the Joint Motion indicated that the Board provided an inadequate statement of reasons and bases in the May 2009 decision. Specifically, the parties found that VA did not obtain potentially relevant VA medical records, and did not discuss whether the Veteran's hearing testimony constituted competent medical evidence of a diagnosis of a left knee disability. The claim was remanded by the Board in January 2011 for further development. FINDING OF FACT A left knee disability was not manifest during service, was not manifest within one year of separation, and the current diagnosis of degenerative joint disease of the left knee, is not otherwise attributable to service. CONCLUSION OF LAW A left knee disability, to include degenerative joint disease, was not incurred in or aggravated by service and may not be presumed to have been incurred or aggravated therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. The Board has an obligation to provide reasons and bases supporting a decision. However, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The analysis will focus on the most salient and relevant evidence and on what that evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked any evidence not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record. Every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). VA has a duty to notify and a duty to assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ), of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice requirements apply to all five elements of a service-connection claim, including Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. The Board finds that VA's duty to notify has been more than satisfied. The Veteran was notified in May 2005 of the criteria for establishing service connection, the evidence required, and his and VA's respective duties for obtaining evidence. That letter addressed all notice elements and predated the initial adjudication of the claim in July 2005. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. Nothing more is required. As for the duty to assist, the Veteran's service medical records have been obtained. VA medical records associated with the claims file are dated from February 1975 to September 2006. The parties to the Joint Motion noted that the Veteran testified that he was treated for a left knee disability at VA in the 1980s presumably at the Temple or Austin VA Medical Center (VAMC), and that he was diagnosed with arthritis at that time. The parties noted that it was not clear whether the RO had obtained all of the VA medical records pertaining to the Veteran. Following the January 2011 Board remand, additional VA medical records were obtained and associated with the claim file. Therefore, the pertinent post-service medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Board finds that no additional evidence, which may aid the Veteran's claim or might be pertinent to the bases of the claim, has been submitted, identified, or remains outstanding, and the duty to assist requirement has been satisfied. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. Green v. Derwinski, 1 Vet. App. 121 (1991). Here, as directed by the Board in January 2011, a VA examination was provided in July 2012, with an addendum opinion provided in August 2012, to ascertain whether the Veteran has a current disability of the left knee which was etiologically-related to his service. When VA undertakes to provide an opinion, VA must ensure that the report is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The VA examination report is adequate, as the examiner included a thorough review of the file and history and provided findings relevant to the issue at hand. The Veteran's complaints and lay history were also considered and discussed, to include his account of an in-service accident in 1966, as was prior medical evidence of record. A rationale was provided with the opinion. Accordingly, the Board finds that VA's duty to assist in obtaining a VA opinion on the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4) (2012). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The Veteran claims that he has a disability of the left knee, and that the disability is related to an injury which occurred during active service. To prevail on the issue of service connection on the merits, there must be evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). In addition, certain chronic diseases, such as arthritis, may be presumed to have been incurred or aggravated during service if they became disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). If a chronic disease or injury is shown in service, subsequent manifestations of the same chronic disease or injury at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice. Rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b) (2012). The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). With regard to the Veteran's statements and hearing testimony, the Board must determine whether the claimed disability is the type of injury or disease for which lay evidence is competent evidence. If so, the Board must weigh that evidence against the other evidence of record, including evidence such as any in-service record documenting the injury or disease. At the outset, the Board notes that the evidence of record contains diagnoses of degenerative joint disease of the left knee, such as in an August 2012 VA examination report. Thus, the evidence shows the presence of a current disability. The Veteran's service medical records are silent as to any complaints, treatment, or diagnosis of any left knee disability. The Veteran did not report any injuries to his left knee during his April 1967 separation examination, which indicated that the lower extremities were normal, and neither a left knee injury nor disability was noted at that time. The VA medical records associated with the claims file, prior to an August 2012 VA examination, do not show any diagnosis of arthritis of the left knee. Instead, the records indicate complaints of left knee pain beginning in August 2000, without a definitive diagnosis. The Veteran testified in February 2009 that his left knee began giving him problems in 1967. He indicated that he could not recall a specific injury during his service, but he reported that he noticed his left knee was weak and led to occasional falls following service. He stated that he has had problems with his left knee since his military service, and that he was diagnosed with left knee arthritis in the 1980s by a VA examiner. The Veteran's attorney submitted a statement from a private provider, dated in November 2010. The provider indicated that he reviewed the claims file and interviewed the Veteran. The physician noted that the Veteran reported that he fell over six feet and injured his left knee during basic training. The provider stated that the Veteran provided credible evidence that he injured his knee, and that he had consistent medical problems with his knee since the injury in service. The physician noted that the Veteran reported that he had been recently examined at VA and was diagnosed with arthritis of the left knee. The provider concluded that, based on an interview and the evidence of record, but without an objective examination, it was highly likely that the Veteran's left knee disability had its origins during active service. There is no indication that the physician physically examined or treated the Veteran. No x-rays or any other diagnostic tests were included with the statement. Further, the provider did not provide a definitive diagnosis. Instead, the provider merely noted that the Veteran was told he had arthritis of the left knee. Consequently, the Board remanded the Veteran's claim for a comprehensive VA examination in January 2011. A VA examination was provided in August 2012. At that time, the examiner noted that, following a review of the claims file, there was no notation of any difficulty with either knee during active duty. After separation, in July 1972, an admission history and physical did not indicate any complaints of knee pain, and a statement indicated that there were no previous, serious medical problems. In April 1975, it was noted that the Veteran was seen at the VA facility, and it was specifically noted that there was no history of a knee injury, and no positive findings were demonstrated following an objective examination. Again, in June 1977, 10 years following discharge, a hospital discharge summary made no reference to the Veteran's left knee. It was further noted that records from Brooke Army Medical Center included daily notes of the Veteran's activities, to include playing basketball and softball, and the absence of any limp. During a VA orthopedic examination conducted in 2000, approximately 33 years after separation from service, an examination of the knees indicated full range of motion with no effusion, deformity, or instability. The Veteran reported that he injured his knee during active duty during basic training in 1966 and, since that time, experienced pain and loss of motion. The Veteran indicated that the injury resulted from a "backpack exercise," during which he was carried aloft by two men who dropped him onto the ground, approximately seven feet, on his back. From that time, according to the Veteran, he suffered from knee pain consistently along the lateral surface of the proximal tibia. He noted that the knee occasionally gave way, but he was unaware of swelling, heat, or erythema. He was uncertain when asked if he received treatment at the time of the injury. Following an objective examination, he was diagnosed with moderate degenerative joint disease of the left knee. This diagnosis was provided despite the fact that his x-rays were normal for his age and showed no significant degenerative changes, but was based instead on his complaints of increasing pain and decreasing range of motion. The examiner opined that it was not at least as likely as not that the Veteran's diagnosis was related to his period of active service. In support of that opinion, the examiner noted that there was no evidence of a knee injury, or complaints of knee pain, within the Veteran's service treatment records. Moreover, even assuming that the injury did occur, the examiner found that posttraumatic arthritis related to such an injury would have appeared by ten to fifteen years following the injury. There is no evidence to support that result, and therefore it was unlikely that his current diagnosis was related to his service. Instead, the examiner stated that the Veteran's diagnosis was most likely related to his age and family history. Medical evidence weighing for and against the Veteran's claim is contained within the record. When facing conflicting medical opinions, the Board must weigh the credibility and probative value of each opinion, and in so doing, the Board may favor one medical opinion over the other. Evans v. West, 12 Vet. App. 22 (1998); Owens v. Brown, 7 Vet. App. 429 (1995). The Board must account for the evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claim. Gabrielson v. Brown, 7 Vet. App. 36 (1994). In determining the weight assigned to this evidence, the Board also looks at factors such as the health care provider's knowledge and skill in analyzing the medical data. Guerrieri v. Brown, 4 Vet. App. 467 (1993); Black v. Brown, 10 Vet. App. 279 (1997). In this case, the Board affords little probative weight to the private opinion of November 2010. The private provider stated that the Veteran provided credible evidence that he injured his knee, and that he had consistent medical problems with his knee since the injury in service. Based on an interview and a review of the claims file, a positive nexus opinion was provided. However, there is no indication that the Veteran was examined, a definitive diagnosis was not provided, and a rationale to support that opinion, aside from the Veteran's reports of continuous symptomatology, was absent. Instead, the provider merely noted arthritis of the left knee by history, and did not address the lack of in-service complaints, or the fact that the Veteran's initial, documented symptoms appeared 33 years following his period of active duty. In contrast, the VA examiner discussed the Veteran's in-service and post-service medical records in detail, and provided an actual diagnosis of degenerative joint disease. A definitive opinion was provided, supported by medical principles and the evidence of record, followed by an interview and an objective examination. Therefore, the Board finds that this opinion carries much more probative value. Lay evidence is one type of evidence that must be considered, and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). That includes weighing the absence of contemporary medical evidence against lay statements. Acknowledgement is given to the Veteran's assertions that his left knee disability is linked to an active duty accident, and that his symptoms have been present since that time. He is deemed competent to report symptoms such as knee pain and limitation of motion. A laypersons is competent to diagnose a disability only if (1) the condition is simple to identify, such as a broken leg, (2) he is reporting a contemporaneous medical diagnosis, or (3) his description of symptoms at the time supports a later diagnosis by a medical professional. However, the Veteran is not competent to provide an opinion as to the cause of degenerative joint disease, as that is not a disability with an onset visible to a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds that the most probative evidence of record is against a finding that the Veteran's currently-diagnosed left knee disability had its onset in service, or is proximately due to or the result of any disease or injury incurred in or aggravated by service. Instead, the most probative evidence of record indicates that it is less likely than not that degenerative joint disease of the left knee is related to an in-service injury, or otherwise related to his period of active duty. The Board has fully considered the lay statements of record, and does not doubt that the Veteran suffers from left knee symptomatology. Nor does the Board doubt the severity of the Veteran's in-service accident. However, the most probative evidence of record does not indicate that his any currently-diagnosed left knee disability is related to his period of military service. Furthermore, the evidence does not show that arthritis manifested to a compensable degree within one year following separation from service. The Board finds that the preponderance of the evidence is against the claim. Therefore, service connection for a left knee disability is denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a left knee disability is denied. ____________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs