Citation Nr: 1315746 Decision Date: 05/14/13 Archive Date: 05/15/13 DOCKET NO. 09-46 900A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from April 1970 to November 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the New Orleans, Louisiana Department of Veterans Affairs (VA) Regional Office (RO). In October 2012 a videoconference hearing was held before the undersigned; a transcript of the hearing is associated with the claims file. At the hearing the Veteran was granted a 60 day abeyance period for the submission of additional evidence. In May 2013 (i.e., more than 6 months later) the Veteran submitted (via fax) a 2008 treatment record showing that the Veteran had a diagnosis of arthralgia. As this is cumulative evidence (the record already showed he had such diagnosis in 2008), it does not require referral to the RO for initial consideration. FINDING OF FACT A right knee injury in service is not shown; a right knee disability was not manifested in service; and the preponderance of the evidence is against a finding that the Veteran's current right knee disability is related to his service. CONCLUSION OF LAW Service connection for a right knee disability is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative 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); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his claim prior to its initial adjudication. A February 2008 letter explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing, and also informed him of disability rating and effective date criteria. He has had ample opportunity to respond/supplement the record, and has not alleged that notice in this case was less than adequate. The Veteran's service treatment records (STRs) and pertinent postservice treatment records have been secured. The RO arranged for a VA examination in August 2008. The examiner did not offer an opinion regarding the etiology of the Veteran's right knee disability (one was not sought). The Board has considered whether another examination (to secure a nexus opinion) is necessary. As there is no credible evidence in the record suggesting that a right knee disability might be related to the Veteran's service, the Board finds that even the low threshold standard(regarding when an examination to secure a nexus opinion is necessary) endorsed by the U.S. Court of Appeals for Veterans Claims (Court) in McLendon v. Nicholson, 20 Vet. App.83(2006) is not met, and a VA nexus examination is not necessary. [In this regard, the Board observes that at the videoconference hearing the Veteran's representative requested an examination to secure a nexus opinion. The undersigned advised that for an examination to be ordered the Veteran would have to submit evidence indicating that his knee disability might be related to service. The only evidence submitted was a copy of a record showing that in 2008 the Veteran had a diagnosis of arthralgia (but no mention of nexus). As was noted above this is cumulative evidence. It does not trigger a duty to provide an examination.] The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially 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). Certain chronic diseases (including arthritis), may be service connected on a presumptive basis if manifested to a compensable degree within a specified period of time following discharge from service (one year for arthritis). 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. To substantiate a claim of service connection, there must be evidence of a current claimed disability; evidence of incurrence or aggravation of a disease or injury in service; and evidence of a nexus between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1153, 1166-1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board has reviewed all of the evidence in the Veteran's claims file and in the "Virtual VA" electronic records storage system. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail every piece of evidence of record. See Gonzales v. West, 218 F. 3d 1378, 1380-81 (Fed. Cir. 2009). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows or fails to show as to the claim. The Veteran contends that he dropped a concrete stone on his right knee cap during service, sustaining an injury that resulted in his current right knee disability (claimed to be arthritis). The Veteran's service treatment records (STRs) are silent for injury, complaints, treatment, or diagnoses related to the knee. They do include reports of treatment for various complaints (including genitourinary, ankle and finger) while he was deployed in Vietnam. On November 1971 service separation examination, the Veteran's lower extremities were normal on clinical evaluation; his report of medical history at the time was silent as to right knee injury and right knee disability. The Veteran's initial claim for VA disability benefits (for an eye disability) was filed in 1971. At that time there was no mention of a right knee disability. VA treatment records from 2008 to 2011 note complaints of knee arthralgia and pain. X-rays of the right knee in January, March, and July 2008 were interpreted as showing a normal right knee. On August 2008 VA examination of the joints, the Veteran again reported that he developed right knee pain after a piece of concrete fell onto his knee. He stated that he was seen in a clinic for this injury and given crutches. Physical examination revealed crepitus, tenderness, painful movement, and instability of the right knee. The examiner noted that X-rays showed no bony, joint, or soft tissue abnormality; a normal right knee. The diagnosis was chondromalacia with degenerative medial meniscus. The examiner did not comment regarding the etiology of the disability. In a statement received in June 2009 the Veteran's wife stated that he hurt his knee in service with a large brick. At the October 2012 videoconference hearing the Veteran testified that he has had problems with his knee since service. He stated that he has had no postservice knee injuries. Regarding his alleged injury in service, he testified that he served on an island in Vietnam where there was no hospital, and he was treated by a medic unit (given crutches for two weeks, given pain medication, and placed on light duty). He explained that he did not report the injury or his knee pain on service separation examination because he was anxious to be discharged and did not want to remain for treatment. He also testified that he has not received a medical opinion that relates his current knee problem to an incident in service. As is noted above, he requested, and was given, an abeyance period for submission of evidence that would relate his right knee disability to service. His only submission since (in May 2013) is a record indicating that he was seen for arthralgia in 2008 (there were already records to that effect associated with the claims file). It is not in dispute that the Veteran has a right knee disability. On August 2008 VA examination, chondromalacia with degenerative medial meniscus was diagnosed. The record also shows a diagnosis of right knee arthralgia. [Notably, X-rays have failed to confirm the Veteran's specifically claimed disability entity of right knee arthritis.] However, the Veteran's STRs, including his service separation examination and medical history reports, contain no mention of a right knee injury, or of a right knee disability, complaints, treratment; and on service separation examination his lower extremities were found to be normal on clinical examination. The only evidence indicating that the Veteran sustained a right knee injury in service consists of his own account and a statement from his current wife. The Board notes that his wife is not shown to have any first hnad knowledge of events during the Veteran's service (as following service -based on evidence in the record- he was first married to someone else, then single for a period of time before he married his current spouse). As her statement is clearly based on his accounts, its probative value depends on their credibility. While the Veteran's account of a right knee injury in service from a brick falling on it is not inherently implausible, weighing all evidence bearing on the credibility of the account, the Board finds it lacks credibility and consequently probative value. In essence, the Veteran asserts that he sustained a right knee injury in service and has had continuing problems with the knee ever since. The record provides no corroboration for the account, and what evidence there is in the matter contradicts his account. First of all, there is that the Veteran's STRs contain no mention of a right knee injury or treatment for such injury. While the Veteran seeks to explain this away by relating that he served in a remote location in Vietnam with no access to broad medical services, in fact the record shows spanning the time of his deployment in Vietnam he was seen for multiple complaints (including for injuries to an ankle and a finger, and repeat genitourinary infections). Logically, if interspersed among these problems was a knee injury that required crutches for ambulation, pain medication, and a period of light duty profile it likewise would have been recorded in the STRs. Furthermore, while the Veteran's explanation that he did not mention a right knee injury in his separation examination history because he did not want to delay service discharge for treatment is not implausible, there remains the fact that his lower extremities (with right knee) were normal on clinical evaluation on service separation examination (suggesting that if an injury had occurred, it had resolved). In addition, it is noteworthy that the Veteran filed his initial claim for VA disability benefits (which was denied) soon after his discharge from service, in 1971. That claim was for an eye disability only. Logically, if at that time he had an ongoing problem with his right knee due to an injury in service, he would have included it in his claim. That he did not weighs against his allegations of postservice continuity of knee symptoms. Finally, it is noteworthy that the initial documentation of a history of right knee injury in service is in 2008 (more than 35 years after service) treatment records, when the Veteran had initiated the claim at issue, suggesting that the account is self-serving, which weighs against his credibility. See Pond v. West, 12 Vet. App. 341 (1999). And the length of the postservice interval before the claim was made itself is a factor for consideration. Considering all the factors discussed above, the Board finds the Veteran's accounts of a right knee injury in service, manifestation of a right knee disability in service, and manifestation of right knee symptoms continuously since service not credible, and therefore of no probative value. Where that leaves the Veteran's claim is that while he has satisfied the initial threshold requirement for establishing service connection (evidence of the disability claimed -albeit not specifically arthritis of the right knee), he has failed to meet a second critical element for establishing service connection (credible evidence of a disease or injury in service). Therefore, the analysis does not need to proceed any further. The Board notes that without credible evidence of the alleged injury in service there cannot be no probative evidence of a nexus between the current disability and such injury. Accordingly, the Board finds that the preponderance of the evidence is against this claim. Therefore, the appeal in this matter must be denied. ORDER Service connection for a right knee disability is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs