Citation Nr: 1316528 Decision Date: 05/20/13 Archive Date: 05/29/13 DOCKET NO. 08-36 226 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1979 to September 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Jurisdiction is currently with the RO in Los Angeles, California. The claim was originally before the Board and remanded in December 2012 to obtain an addendum opinion. The requested development having been completed, this claim is once again before the Board. A review of the Veteran's Virtual VA electronic claims file revealed VA treatment records dated February 2010 to March 2013. In his substantive appeal, the Veteran requested a Board hearing at the RO. While he was scheduled for a hearing in August 2012, he failed to report for the hearing. Therefore, the request for a Board hearing is deemed withdrawn. See 38 C.F.R. § 20.704 (2012). FINDING OF FACT A chronic left knee disability was not shown in service or for many years thereafter, and no present left knee disability is otherwise shown to be related to service. CONCLUSION OF LAW The criteria for service connection for a left knee disability are not met. 38 U.S.C.A. §§ 1101, 1103, 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.301, 3.303, 3.306, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in pre-rating correspondence dated in July 2007 and August 2007 of the information and evidence needed to substantiate and complete his claims. VA fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate the claims, to include service treatment records, VA outpatient treatment records, private treatment records, Social Security Administration (SSA) records, and as warranted by law, providing VA examinations. There is no evidence that any VA error in notifying or assisting the appellant reasonably affects the fairness of this adjudication. Indeed, the appellant has not suggested that such an error, prejudicial or otherwise, exists. Hence, the case is ready for adjudication. Legal Criteria Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a presently existing disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)); Hickson v. West, 12 Vet. App. 247, 253 (1999). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007). Certain chronic diseases, such as arthritis, may be presumed to have been incurred in service if manifested to a compensable degree within one year from discharge from service. 38 U.S.C.A. §§ 1011, 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). With chronic diseases shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however, remote, are service connected, unless clearly attributable to intercurrent causes. For a showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the disease entity is established, there is no requirement of evidentiary showing of continuity. If the condition noted during service (or in the presumptive period) is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned, then generally a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall resolve all reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102. Background The Veteran contends that he is entitled to service connection for a left knee disability, as he believes that it had its onset in service. No left knee disability was indicated on the Veteran's July 1979 pre-induction examination. The Veteran's service treatment records reflect that he complained of left knee pain in May 1981. While he was assessed with chondromalacia, it was also indicated that the Veteran fractured his patella in approximately 1974. In September 1981, the Veteran complained of left knee pain, and again indicated earlier left knee injury approximately 6 years prior. There was tenderness to palpation and grinding on the movement of the knee cap. He was assigned with possible chondromalacia. Later in September 1981, an assessment of patellar pain syndrome, possible secondary to an old undocumented injury, was indicated. While no left knee disability was noted on the August 1982 discharge examination, the Veteran endorsed a "trick or locked knee" on his August 1982 report of medical history. Following service, the Veteran's VA outpatient treatment records show that he was treated for left knee pain. In March 2007, the Veteran complained of chronic pain in both knees. An impression of bilateral knee pain, probably osteoarthritis, was indicated. A May 2007 MRI report reflects an impression of bipartite patella with diffuse lateral patella facet chondromalacia. In July 2008, the Veteran reported with bilateral knee pain. It was noted that an MRI showed patellar facet chondromalacia. In September 2008, the Veteran reported continued bilateral knee pain. He reported that his knee pain began 20 years ago. It was noted that the Veteran's bilateral knee pain was due to patellofemoral syndrome resulting from a combination of chondromalacia patella and quadriceps/patellar tendinitis. In November 2008, it was noted that the Veteran's chronic knee pain had worsened since a recent fall from a ladder. A September 2009 VA outpatient treatment report reflects that the Veteran presented with patellofemoral syndrome. The Veteran's SSA records reflect that he was afforded an internal medicine consultation in August 2007. The Veteran reported that he had been having problems with both knees since 1982. He had difficulty walking stairs and with prolonged standing. After a physical examination, an impression of lateral knee pain was indicated. These records reflect that the Veteran was found to be disabled and eligible for benefits in June 2008 with a primary diagnosis of disorders of the muscle ligament and fascia and a secondary diagnosis of osteoarthritis. The record reflects that the Veteran was afforded a VA examination in September 2011 to determine the etiology of any current left knee disability. After physical examination and diagnostic testing, the examiner indicated that there no diagnosis because there was no pathology to render a diagnosis. As a result, no opinion on the etiology of the claimed disability was provided. In March 2013, the Veteran was provided with an addendum opinion to the September 2011 VA examination. The examiner reviewed the Veteran's medical records, to include relevant notations in his service treatment records and VA outpatient treatment records showing treatment and diagnoses of a left knee disability. It was stated that, while there was evidence that the Veteran had sustained a left patellar fracture prior to entry into military service, the evidence also showed that this condition had been successfully treated and healed without sequelae, as shown on his August 1982 separation examination. Further, the examiner discussed the in-service complaints of left knee pain and stated that these instances were not related to any trauma and were merely acute, as the treatment administered was only conservative. The examiner noted that the Veteran had checked the box for "trick or locked knee" on his August 1982 report of medical history, but that there was no accompanying medical support for this. Also, the examiner noted that in a September 1981 service treatment record, in which the Veteran was diagnosed with patellar pain syndrome, he was found to have no complaints in the patellar region and that this diagnosis was later noted as only being a possible diagnosis, with no subsequent confirmation. The Veteran's May 2007 MRI showing bilateral patellar chondromalacia was reviewed, but the examiner noted that this impression was not reported on any subsequent x-ray reports. A November 2012 x-ray was noted as showing tricompartmental osteoarthritis, but the examiner stated that this type of arthritis was normal for the Veteran's age. The examiner offered opinions regarding both direct service connection and aggravation of the Veteran's left knee disability. With regard to direct service connection, the examiner opined that the Veteran's in-service complaints of knee pain did not result from traumatic injuries and were acute in nature. The arthritis with which the Veteran is currently diagnosed is normal for the Veteran's age and not related to the pain reported in military service. With regard to aggravation, the examiner opined that, although the Veteran had a preexisting injury prior to service, the evidence in the Veteran's service treatment records, namely the exit examination showing that the prior injury had resolved, showed that the Veteran's knee was not aggravated at all. The examiner did not relate the complaints of knee pain in service to the prior patellar fracture before military service. Analysis The Board notes that the above-cited evidence reflects current diagnoses of left knee chondromalacia and osteoarthritis. However, the evidence does not support a finding that there exists a medical a nexus between this disability and service. Initially, the Board notes that the suggests that the Veteran sustained a fracture of the left patella due to an injury prior to service. As no left knee impairment was found upon his examination for service entrance, however, he is presumed to have been in sound condition at that time as far as the left knee is concerned. See 38 U.S.C.A. §§ 1111. As noted, the earliest objective medical evidence of any disability is in 2007, approximately 25 years after the Veteran's service. The Board also notes that the passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In addition, the diagnoses of arthritis is well outside of the one year presumptive period. Moreover, there is no competent evidence or opinion even suggesting that there exists a medical nexus between any currently diagnosed left knee disability and service. None of the treatment records of record reflect any such comment to that effect, and neither the Veteran nor his representative has presented or identified any such existing medical evidence or opinion. The Board acknowledges that the Veteran's treatment records document a left knee disability with an onset in service. However, this notation appears to be only the examiner recording the Veteran's own reported medical history, without comment. As such, this notation does not constitute competent evidence of the required nexus. The mere transcription of medical history does not transform the information into competent medical evidence merely because the transcriber happens to be a medical professional. See Grover v. West, 12 Vet. App. 109, 112 (1999); Leshore v. Brown, 8 Vet. App. 406, 409 (1995). The Board acknowledges the Veteran's contentions as to left knee pain with an onset in service or shortly thereafter, and continuous symptoms since service. The Board notes that the Veteran is competent to offer evidence as to facts within his personal knowledge, such as the occurrence of an in-service injury, and his own symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465, 469 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). As indicated, the Veteran has asserted continuity of left knee symptoms since service. However, such assertions must be considered in light of the medical and other evidence of record. Cf. Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). While the Veteran specifically complained of left knee problems in service, these incidents were never attributed to a chronic left knee condition and were merely treated conservatively as acute conditions. There are no complaints of this disability for many years following the Veteran's discharge from service. Finally, there is no competent probative medical evidence establishing a relationship between the chondromalacia and osteoarthritis diagnosed decades after service and the complaints of pain during service. As such, the Board finds that the Veteran's assertions as to onset continuity of symptoms are outweighed by the competent, probative evidence of record. For all the foregoing reasons, service connection for a left knee disability must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as no competent, persuasive evidence supports the claims, that doctrine is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53- 56. ORDER Entitlement to service connection for a left knee disability is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs