Citation Nr: 1317044 Decision Date: 05/24/13 Archive Date: 05/31/13 DOCKET NO. 09-09 596 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for degenerative joint disease of the right knee. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD M. Mills, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1975 to May 1979. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in June 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. Jurisdiction over the claim currently resides with the RO in Louisville, Kentucky. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDING OF FACT Degenerative joint disease of the right knee was not manifest during service or manifest to a compensable degree within one year of service separation. Any current degenerative joint disease of the right knee is not causally related to his active service or any incident therein. CONCLUSION OF LAW Degenerative joint disease of the right knee was not incurred in service, nor may arthritis be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1). A December 2006 VCAA letter explained what evidence was required to substantiate his claim for service connection for a right knee disorder. This letter also informed the Veteran of his and VA's respective duties for obtaining evidence. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, the VCAA notice letter from VA was provided prior to initial adjudication of the Veteran's claim and explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). With regard to the duty to assist, the claims file contains service treatment records, reports of post-service treatment, Social Security Administration (SSA) records, and reports of VA examinations. See 38 U.S.C.A. § 5103A(a)-(d). The Veteran underwent a VA examination in November 2012 to obtain medical evidence as to the nature and likely etiology of the claimed disability. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The November 2012 VA examination report reflects that the examiner solicited symptoms from the Veteran, examined the Veteran, and provided a diagnosis and reasoned opinion consistent with the record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Therefore, the examination report is adequate for rating of the Veteran's disability under the applicable rating criteria. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Essentially, all available evidence that could substantiate the claim has been obtained. There is no indication in the claims file that there are additional available relevant records that have not yet been obtained. Law and Regulations Veterans are entitled to compensation from the VA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C.A. § 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, including arthritis, may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2012). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a) (2012). If the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). The theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a), see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When a claimed disability is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during service. See Combee v. Brown, 34 Fed.3d 1039 (Fed. Cir. 1994). Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d. 1372 (2007); see Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). In claims for VA benefits, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Merits of the Claim The Veteran contends that he currently suffers from a right knee disorder, which he alleges is the result of competitive running during service. A review of the Veteran's service treatment records show no in-service complaints, treatment, or indication of a right knee disorder. The September 1978 reenlistment examination disclosed that the lower extremities were normal. At his March 1979 separation examination, clinical evaluation of the Veteran's lower extremities and musculoskeletal system was normal. Subsequent evidence is similarly silent for an indication of a chronic disability of the right knee for many years thereafter. In a March 2007 Report of Contact, the Veteran indicated that his right knee has tightness and swelling with loss of range of motion. He alleged that this was caused by running in service. The Veteran also indicated that he did not receive treatment for this disorder during service. A review of post-service medical history shows the first indication of a right knee disorder in July 2007, with a notation of degenerative joint disease of the right knee. In connection with his claim, the Veteran was afforded a VA medical examination in November 2012. He reported that he worked as telephone repair for over eleven years climbing poles. At that time he denied any history of injury, surgery, previous treatment, or evaluation of the right knee. X-ray studies showed there was degenerative arthritis of the right knee. After a physical examination of the Veteran and reviewing the claims folder, the examiner opined that the claimed condition was less likely as not incurred in or caused by the claimed in-service injury, event or, illness. He noted that there was no medical evidence that running causes arthritis in joints. He further explained that there was no history of injury, complaint, or treatment in service for a knee condition or injury. Although a chronic disability of the right knee, including arthritis, was not present in service, within the first post-service year, or for many years thereafter, service connection may nonetheless be granted for any injury or disease or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Thus, the Board has carefully reviewed the record for evidence establishing that any current arthritis of the right knee is causally related to the Veteran's active service or any incident therein, including the Veteran's time spent competitively running. After a careful review of the record, the Board finds that service connection is not warranted for degenerative joint disease of the right knee. Significantly, at the time of the Veteran's March 1979 separation examination, clinical evaluation of the lower extremities and musculoskeletal was normal. The first clinical documentation of the onset of a chronic knee disorder is dated July 2007, some 28 years after service separation. The Court has determined that a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). We also note that arthritis was not noted, observed or diagnosed during service or within one year of separation. Rather, the examinations were normal or silent as to pathology. Since the records were silent as to any knee pathology, it necessarily follows that there were no characteristic manifestations of an arthritic disease process of the knee during service. 38 C.F.R. § 3.303(b). The Board has considered the Veteran's statements to the effect that he developed a right knee disorder as a result of running in service. The Board finds that the reported history, when weighed against the evidence of record, does not provide a basis upon which to grant the claim. Although the Veteran has identified running as the cause of his current right knee disorder, he has not submitted any competent evidence of a nexus to service. The Board finds that the November 2012 VA examination opinion is more probative than the lay statements of record. The VA examiner considered the entire record on appeal, including the history reported by the Veteran, medical records, and concluded that the Veteran's degenerative joint disease of the right knee was consistent with his age and work history and not related to his active service. Moreover, the examiner stated that medical evidence does not show that running causes degenerative joint disease. To the extent that he has reported that Marines do not complain, such argument is unconvincing in light of the normal clinical findings in 1978 and at separation. To the extent that he attempts to establish a remote etiology, we find that he is not competent in this particular case. The causation of arthritis is a medically complex issue. Furthermore, there are no Jandreau exceptions as to etiology. Jandreau v. Nicholson, 492 F.3d 1372 (2007). To the extent that he reports that he has a post service diagnosis of arthritis, that is competent as it is confirmed in the record. In addition, the Veteran does not allege and the evidence does not show continuity of symptoms related to the right knee since separation from service. The March 1979 separation examination disclosed that the lower extremities and musculoskeletal systems were normal, and the Veteran denied a medical history relevant to this disorder at the November 2012 VA examination. More importantly, there were no recorded in-service manifestations during service. Thus, section 3.303(b) would not assist him. The Board notes the Veteran's competent reports of post-service right knee pain. However, there is no evidence of record to suggest that symptoms of the right knee have been present continuously since service. Given the absence of complaint or treatment until many years after service, and the absence of any credible evidence showing continuity of symptomatology since service, the Board finds that the evidence weighs against the Veteran's claim. The right knee disorder was not incurred in or aggravated by service, and the weight of the competent evidence does not establish a nexus between the post-service diagnosis and active service. As such, the Veteran's claim for service connection for a right knee disorder must be denied. The preponderance of the evidence is against the claim, and there is no doubt to be resolved. 38 U.S.C.A. § 5107(b), Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Service connection for degenerative joint disease of the right knee is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs