Citation Nr: 1317863 Decision Date: 05/31/13 Archive Date: 06/06/13 DOCKET NO. 10-17 131 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a bilateral knee disorder. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active duty service from August 1977 to April 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which, in pertinent part, denied service connection for a bilateral knee disorder. The Board has not only reviewed the Veteran's physical claims file, but also the file on Virtual VA, to ensure a total review of the available evidence. This case was previously before the Board in October 2012, wherein it was remanded in order for the RO to obtain private medical records on behalf of the Veteran. The case was returned to the Board for appellate consideration. The Board finds that there has been substantial compliance with the directives of the October 2012 remand, as the RO obtained and considered the additional private treatment records (a supplemental statement of the case was issued in March 2013). As such, an additional remand to comply with such directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran did not engage in combat with the enemy during service. 2. The Veteran experienced right knee injury during service in 1984, with symptoms of swelling and fluid on the patella during service. 3. The Veteran experienced continuous post-service symptoms of right knee disability that were later diagnosed as plica and degenerative arthritis. 4. The Veteran did not sustain a disease or injury of the left knee during service. 5. The Veteran does not have a current left knee disability. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for plica and degenerative arthritis of the right knee are met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 2. The criteria for service connection for a left knee disorder are not met. 38 U.S.C.A. §§ 1110, 1131, 1154, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In this case, the agency of original jurisdiction (AOJ) issued a notice letter, dated in October 2006, to the Veteran. This letter explained the evidence necessary to substantiate the Veteran's claim for service connection, as well as the legal criteria for entitlement to such benefits. The letter also informed him of his and VA's respective duties for obtaining evidence. The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist a veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). In October 2006, the Veteran submitted a completed Authorization and Consent to Release Information to VA, via a VA Form 21-4142, for treatment records from Fort Carson MEDDAC (Medical Department Activity) from 1989 to 1992. The RO submitted a request for such records in April 2007, and an April 2007 response letter from Fort Carson indicated the Veteran's name is not in the database. Nonetheless, review of the Veteran's service treatment records associated with the claims file includes the referenced treatment records from Fort Carson; thus, the Board finds that VA's duty to assist the Veteran with obtaining these records has been satisfied. See 38 C.F.R. § 3.159(e). The Veteran has not been examined by VA in connection with his claim for service connection of a bilateral knee disorder; however, no examination or nexus opinion is required regarding the right knee because there is competent medical evidence of record to decide the claim, and the full benefit sought on appeal (service connection) is being granted. See 38 U.S.C.A. § 5103A(a)(2) (West 2002) (VA "is not required to provide assistance to a claimant . . . if no reasonable possibility exists that such assistance would aid in substantiating the claim"); 38 C.F.R. § 3.159(d) (VA to discontinue assistance where there is "no reasonable possibility that further assistance would substantiate the claim"); McClendon v. Nicholson, 20 Vet App. 79, 81 (2006). The weight of the evidence demonstrates no left knee injury, disease, or event during service; therefore, no examination or nexus opinion is required, and any opinion would be speculative, as there is no injury, disease, or event during service to which such a currently diagnosed disorder could be related. For this reason, a remand to provide the Veteran with a medical examination and/or obtain a medical opinion is not required with respect to the claim for service connection of a left knee disorder. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (where the Board makes a finding that lay evidence regarding an in-service event or injury is not credible, a VA examination is not required). The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claims. For these reasons, the Board finds that the VCAA duties to notify and assist have been met. Legal Criteria for Service Connection It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). In this case, the Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by a veteran or on his or her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). When there is an approximate balance in the 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. Service connection may be granted for disability or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 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). Service connection for a disability on the basis of the merits of such claim requires (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In addition, the law provides that, where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from 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. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. The Veteran has been diagnosed with a "chronic disease" of arthritis (of the right knee) listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies to the claim of service connection for a right knee disorder. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran has been diagnosed with degenerative arthritis of the right knee. Nonetheless, the Veteran does not have arthritis of the left knee or any "chronic disease" of the left knee under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply to the claim for service connection for left knee disorder. 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. See 38 U.S.C.A. § 1153(a) (West 2002); 38 C.F.R. § 3.303(a); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) and Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Service Connection for Right Knee Disorder The Veteran asserts that he sustained a right knee injury while on active duty. He contends his current right knee disability is due to the injury suffered in service. In his notice of disagreement submitted in February 2008, he referenced a 20 year history of knee problems, impliedly suggesting service onset. In this Veteran's case, the evidence does not show, nor does the Veteran allege, that he engaged in combat with the enemy during active service. The Board also finds that there is no objective evidence that the Veteran "engaged in combat with the enemy." For this reason, 38 U.S.C.A. § 1154(b) is not applicable in this case. After a review of all the evidence, lay and medical, the Board finds that the evidence demonstrates that around August 1984 during service the Veteran sustained a right knee injury, and was treated for fluid over the right knee cap. The Veteran had an orthopedic evaluation for effusion to the interior to the patella knee cap. See 38 C.F.R. § 3.303(a). The Board also finds that the evidence is at least in equipoise as to whether the Veteran experienced symptoms of right knee disorder after service that resulted in a current right knee disability. The Veteran is competent to report certain symptoms related his right knee disability. Private treatment and hospitalization records show that he was treated for complaints of pain and swelling related to his right knee and a diagnosis of degenerative arthritis and plica of the right knee following arthroscopic surgery in February 2006. Additionally, a December 2004 MRI report indicates that the radiography of the Veteran's right knee was suggestive of remote trauma to the patellofemoral joint with development of degenerative changes. Resolving reasonable doubt in the Veteran's favor, the Board finds that the symptoms of plica and degenerative arthritis of the right knee have been continuous since service separation. While there is an absence of evidence noting complaints or treatment of right knee disability in the years following service separation, the Veteran has reported that his right knee symptoms started in service and have continued to the present. See Layno v. Brown, 6 Vet. App. 465 (1994). In seeking post-service treatment for his right knee, the Veteran reported experiencing an in-service fall and injury to the patella, followed by episodic swelling after service. Because the Veteran's statements regarding in-service and post-service right knee symptoms, treatment, and diagnosis are not shown to be inconsistent, the Board finds them to be credible. Similarly, the Veteran is considered competent to report the onset and continuation of his symptomatology. See Jandreau, supra. Because continuity of symptomatology since service is demonstrated, the 38 C.F.R. § 3.303(b) criteria for presumptive service connection for degenerative arthritis of the right knee have been met. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. With the resolution of reasonable doubt in the Veteran's favor, service connection for plica and degenerative arthritis of the right knee is granted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service Connection for Left Knee Disorder The Veteran asserts generally that service connection is warranted for a left knee disorder, although he provides no specifics as to the circumstances warranting service connection. As noted, in his notice of disagreement he referenced a 20 year history of unspecified knee problems, impliedly suggesting service onset. As previously mentioned, the Veteran does not allege, and a review of his official military documentation contained in his claims file does not otherwise indicate, that he engaged in combat against enemy forces as contemplated by VA regulations. After a review of all the evidence, lay and medical, the Board finds that the weight of the evidence demonstrates that the Veteran did not sustain a disease or injury of the left knee during service, and did not have symptoms of a left knee disorder in service. In this case, the service treatment records do not show any complaints, treatment, or diagnoses related to a left knee disorder. See 38 C.F.R. § 3.303(a). The Veteran has not even asserted that he sustained a left knee injury in service. On the claim form, he did not answer the question as to when the disability began or where he had been treated for a left knee disorder, but only indicated to see the medical records. The medical records are negative for evidence of left knee injury, complaints, findings, or diagnosis of disability during service. The service treatment records, which appear complete, do show a right knee injury and treatment, as well as treatment various other disorders, but are notably absent for evidence of left knee disorder or symptoms. See Kahana v. Shinseki, 24 Vet. App. 428, 439 (2011) (citing Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (Lance, J., concurring) (VA may use silence in the service treatment records as evidence contradictory to a veteran's assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred). The Board also finds that the weight of the evidence demonstrates that the Veteran does not currently have a disability of the left knee. The evidence demonstrates that after service the Veteran did not experience symptoms of a left knee disorder. The Veteran is competent to report certain symptoms related his claimed disability; however, the Board finds that his vague assertions of current left knee disability are not credible. The Veteran has not made any complaints, nor sought treatment, related to an alleged left knee disorder for many years since service separation in 1992. Although VA and private treatment records show that more recently he was treated for complaints of pain related to his left knee, symptoms such as pain, by itself and without an underlying medical condition, do not constitute a disability for VA disability compensation purposes. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). For these reasons, the Board finds that the weight of the evidence demonstrates that the Veteran does not have a left knee disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability"). As the preponderance of the evidence of record is against a finding that the Veteran has a left knee disability, the claim must be denied, and there is no reasonable doubt to be resolved in the Veteran's favor. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for plica and degenerative arthritis of the right knee is granted. Service connection for a left knee disorder is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs