Citation Nr: 1319445 Decision Date: 06/14/13 Archive Date: 06/21/13 DOCKET NO. 08-16 706 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE 1. Entitlement to service connection for degenerative joint disease of the left knee. 2. Entitlement to service connection for degenerative joint disease of the right knee. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The Veteran had active service from June 1965 to June 1968. This matter comes to the Board of Veterans' Appeals (Board) from a rating decision of the Atlanta, Georgia Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned in September 2012. A transcript of that hearing is of record. This case was remanded by the Board in February 2013 for further development. FINDINGS OF FACT 1. A left knee disability was not manifest during active service, and arthritis was not manifest to a compensable degree within one year of separation from active duty and is not otherwise attributable to active service. 2. A right knee disability was not manifest during active service, and arthritis was not manifest to a compensable degree within one year of separation from active duty and is not otherwise attributable to active service. CONCLUSIONS OF LAW 1. A left knee disability was not incurred in or aggravated by service, and arthritis may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. A right knee disability was not incurred in or aggravated by service, and arthritis may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in March 2006 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain. Although the letter provided adequate notice with respect to the evidence necessary to establish a claim for service connection, it did not provide notice of the type of evidence necessary to establish a disability rating or effective date for the disability on appeal. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Despite the inadequate notice, the Board finds no prejudice to the Veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced thereby). Simply put, as the preponderance of the evidence is against the claims for service connection, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. This matter was last remanded by the Board in February 2013 to obtain and associate with the file private treatment records and to afford the Veteran a VA examination. The Veteran was afforded an adequate VA examination in February 2013. Also, in February 2013 VA sent the Veteran a letter requesting that he submit names and contact information for providers who treated him for his knees. The Veteran, however, failed to respond and/or submit the proper authorization to allow VA to obtain any additional pertinent records. The Board finds that the instructions set forth in its February 2013 remand were substantially complied with, and that VA fulfilled its duty to assist. Moreover, during the September 2012 Board hearing, the undersigned explained the issues on appeal and asked questions designed to elicit evidence that may have been overlooked with regard to the claim. These actions provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(2) and consistent with the duty to assist. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). Accordingly, the Board will address the merits of the claim. Analysis The Veteran appeals the denial of entitlement to service connection for degenerative joint disease of the right and left knees. According to the Veteran, he had knee problems in service, and his current knee symptoms are similar to those that he experienced while on active duty. The Veteran asserts that while on active duty he served as a paratrooper and did 33 jumps during service. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. Service connection may also be granted for any injury 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). Certain chronic diseases, such as arthritis, may be service connected if incurred or aggravated by service, or if manifested to a degree of 10 percent disabling or more within one year after separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. If the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Based on the evidence of record, the Board finds that the evidence preponderates against entitlement to service connection for degenerative joint disease of the right and left knees. Service treatment records reveal no complaints, findings or diagnoses for the knees. At separation, the Veteran's lower extremities were normal and he specifically denied a history of a trick or locked knee. Arthritis is also not clinically shown to be compensably disabling within a year of separation from active duty. To the extent that the Veteran argues that his disability is related to service, objective evidence of knee problems are not shown in the record until 2005, which is over three decades following the Veteran's discharge from service. The passage of many years between discharge from active service and the medical documentation of a claim disability is a factor that weighs against a claim for service connection. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Board acknowledges that, in a May 2008 statement, Dr. C opined that the Veteran could possibly have degenerative joint disease related to his active duty and aggravated by the rigors and stresses of training and overuse of his knees. Dr. C noted that the Veteran served as a paratrooper who jumped out of planes for six years and landing on the ground and that his symptoms could definitely be related to his active service. The Board notes, however, that Dr. C's opinion is speculative at best given his use of the words "possibly" and "could." See Obert v. Brown, 5 Vet. App. 30 (1993) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus). As such, the Board renders the opinion of little probative value. Further, it is well to note that the appellant did not serve on active duty for six years. Rather, he served on active duty from June 1965 to June 1968. The United States Court of Appeals for Veterans Claims has held that a medical opinion based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). In contrast, the Board finds that the VA medical opinion, service treatment records, and historical record persuasive and assigns them great probative weight. The VA examiner in February 2013 opined that the Veteran's disability was not at least likely than not caused or related to service to include with airborne forces. The VA examiner reasoned that the Veteran's claims file is silent to any knee condition. The VA opinion was rendered by a medical professional with the expertise to opine on the matter at issue in this case. The examiner addressed the Veteran's contentions and based his opinions on a review of the claim folders as well as a complete physical examination. The opinion is reasoned and supported by and consistent with the historical record, and is afforded greater probative weight than the lay assertions of the Veteran that are presented in support of a claim for monetary benefits. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (While VA cannot ignore a veteran's testimony simply because he is an interested party; personal interest may, however, affect the credibility of the evidence). The Board also affords the opinion greater probative value than the opinion of Dr. C which is speculative at best. The Veteran is competent to report a knee problems. To the extent that the appellant claims a history of knee problems since separation, however, the Board finds such an assertion not credible. Simply put, if the Veteran truly was having knee problems since service, it is more believable to conclude that he would have sought treatment for the disorder prior to 2005. In sum, the most probative evidence of record is devoid of a showing that the Veteran's knee disability is related to service. Hence, entitlement to service connection for degenerative joint disease of the right and left knees is denied. In making this decision the Board acknowledges the fact that the appellant is a combat veteran. Under 38 U.S.C.A. § 1154(b), combat veterans are entitled to certain presumptions for direct service connection. In Collette v. Brown, 82 F.3d 389, 392-93 (Fed. Cir. 1996), the United States Court of Appeals for the Federal Circuit articulated a three-step sequential analysis to be reviewed when a combat veteran seeks benefits under the method of proof provided by 38 U.S.C.A. § 1154(b) . Initially, VA must determine whether the veteran has proffered "satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease." If a veteran produces credible evidence that would allow a reasonable fact-finder to conclude that the alleged injury or disease was incurred in service, then the veteran has produced "satisfactory evidence" to satisfy the first step under the statute. This determination requires the credibility of the veteran's evidence to be judged standing alone and not weighed against contrary evidence. In Caluza v. Brown, 7 Vet.App. 498, 510-11 (1995), the United States Court of Appeals for Veterans Claims found that, in determining whether documents submitted by a veteran constitute "satisfactory" evidence under 38 U.S.C.A. § 1154(b), VA may properly consider "internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the veteran." VA must then determine if the proffered evidence is "consistent with the circumstances, conditions, or hardships of such service," again without weighing the Veteran's evidence with contrary evidence. Collette, 82 F.3d at 392-93. If these two inquiries are met, VA "shall accept" the Veteran's evidence as sufficient proof of service connection, even if no official record of such incurrence exists. At this point, a factual presumption arises that the alleged injury or disease is service-connected. Id. Under the third Collette step VA weighs the evidence contrary to that which established the presumption of service connection. If VA meets its burden of presenting clear and convincing evidence to the contrary, the presumption of service connection is then rebutted. On review, the Board finds that the Veteran has not met the requirements of step one since he has not proffered satisfactory evidence of direct service incurrence. While the appellant has described the physical demands placed on his knees in-service, his lay report alone is not sufficient to conclude that he had left and right knee arthritis in-service. Simply put, his lay report addressing the demands of combat standing alone is not evidence to allow a reasonable fact finder to conclude that left and right knee arthritis was directly incurred in-service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), the specific issue in this case, arthritis of the left and right knee, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer)." Finally, in reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for degenerative joint disease of the left and right knees is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs