Citation Nr: 1320043 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 10-02 900 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Rutkin, Joshua M. INTRODUCTION The Veteran served on active duty from February 1977 to February 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDING OF FACT The Veteran's right knee disorders did not manifest during active military service or within one year of discharge, and are not related to a disease, injury, or event during service. CONCLUSION OF LAW A right knee disability was not incurred in or aggravated by active service, and the criteria for presumptive service connection have not been satisfied. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Introductory Matters In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the United States Court of Appeals for the Federal Circuit (Federal Circuit) (as noted by citations to "Fed. Cir.") and the United States Court of Appeals for Veterans Claims (Court) (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d) (West 2002); see also 38 C.F.R. § 19.7 (2012) (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). II. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002), sets forth VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In order to satisfy its duty to notify the claimant under the VCAA, the United States Court of Appeals for Veterans Claims (Court) held that VA 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. Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). All notice under the VCAA should generally be provided prior to an initial decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, a delay in timing of the notice is "cured," and therefore harmless, when a fully compliant VCAA notification letter is followed by readjudication of the claim (such as through issuing a statement of the case or supplemental statement of the case) after the claimant has had an opportunity to submit additional evidence. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006). A claim of entitlement to service connection consists of five elements: (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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006). The Court has held that notification of what evidence is necessary to substantiate the claim under 38 U.S.C.A. § 5103(a) requires notice of these five elements. See id. at 486; Quartuccio, 16 Vet. App. at 187. Prior to the initial rating decision in this matter, a July 2008 letter notified the Veteran of all five elements of service connection, gave examples of the types of evidence he could submit in support of his claim, and informed him of his and VA's respective responsibilities for obtaining relevant records and other evidence on his behalf. Therefore, the duty to notify is satisfied. See id. VA's duty to assist under the VCAA includes helping the claimant to obtain service treatment records and other pertinent records, as well as providing an examination or obtaining a medical opinion when such is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Veteran's service treatment records and VA medical examination reports are in the claims file. He has not identified any treatment at VA and there is no other indication of relevant VA treatment records that may exist. Private medical records submitted by the Veteran have also been associated with the file. The Veteran has alleged in his January 2010 substantive appeal (VA Form 9) and elsewhere that there are missing service treatment records pertaining to a knee injury, and that he had been treated at the 757th Medical Detachment in Schwäbisch Gmünd, Germany around April 1978, and at the 5th General Hospital in Stuttgart, Germany during the period from June 1978 to July 1978. However, service treatment records issued from these facilities are in the claims file, as well as service treatment records dating from January 1978 to November 1978, in addition to numerous treatment records spanning the entire period of the Veteran's active service from 1977 to 1981. None of these records mention a knee injury, and there is no other indication of any missing service treatment records. Moreover, the claims file includes a September 2008 response to a request for records from the National Personnel Records Center (NPRC) that all available service treatment records had been mailed to the RO. Importantly, the Veteran clarified in a January 2011 statement that he was never hospitalized during service for a knee injury or knee problems. Thus, there was no need to make a specific request for clinical records of inpatient treatment. In sum, the service treatment records associated with the file appear to be complete in every respect. In support of his contention that there are missing service treatment records, the Veteran submitted statements from family members asserting that he had injured his right foot in service, and argued in his July 2009 Notice of Disagreement (NOD) that if there were missing service treatment records pertaining to his right foot injury, then it could be inferred that there were also missing service treatment records with regard to his right knee, in light of his allegation that he injured his right knee in service. However, this argument only supports the contrary conclusion, as there are in fact service treatment records dated in March 1977 showing that he sprained his right ankle and was issued crutches. Thus, there is no credible evidence of any missing service treatment records pertaining to the right knee when such records are otherwise complete. In a January 2012 letter, the Veteran was notified of VA's inability to obtain outstanding treatment records pertaining to the knee from the facilities he identified in Schwäbisch Gmünd and Stuttgart, Germany, and provided an opportunity to submit such records himself. The file shows that the Veteran called the RO in January 2012 and stated that he had no additional records from these facilities. A January 2012 memorandum was also issued for the file making a formal finding that inpatient clinical records from these facilities were not available, setting forth the efforts that had been made to obtain them, and concluding that further efforts would be futile. The Veteran has not identified any other records or items of evidence that remain outstanding. Thus, the duty to obtain relevant records on the Veteran's behalf is satisfied. See 38 C.F.R. § 3.159(c). The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a). In McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006), the Court held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. As will be explained below, there is no credible evidence of a disease, injury, or event during active service relevant to the incurrence or aggravation of a right knee disability. Thus, the second McLendon element is not satisfied. Although there are opinions of record from the Veteran's private treatment physician suggesting that the Veteran may have been predisposed to the early development of arthritis of the right knee due to repeated impacts to and stress on the knee during physical training exercises, these opinions are premised on the assumption that the Veteran in fact sustained such impacts. As the Veteran's statements with regard to treatment for a knee disorder in service are not credible, it is similarly not credible that he sustained repeated impacts or stress to his knee during service. Indeed, as discussed below, the physician's opinion assumed that the Veteran had in fact received treatment for his right knee during service. A medical opinion based on an inaccurate factual premise has no probative value, and thus this opinion does not satisfy the second McLendon element. Reonal v. Brown, 5 Vet. App. 458 (1993). Moreover, while speculative opinions can be sufficient to constitute evidence of an indication that a current disability may be related to service, when the record clearly shows, as here, that a nonspeculative opinion cannot be rendered based on the available evidence, a VA opinion is not warranted as there is no reasonable possibility that such an opinion could further support the Veteran's claim or possess any more probative value than the opinion by the Veteran's private treating physician. In other words, there is no adequate explanation that could be provided in support of a nonspeculative opinion as to a relationship to service in the absence of any credible evidence of injury to the knee during service or any knee problems until many years after separation from service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that the probative value of a medical opinion comes from its reasoning, and therefore is not entitled to any weight if it contains only data and conclusions). Under 38 C.F.R. § 3.102, in order for the benefit-of-the-doubt rule to apply, there must be some "positive" evidence supporting the claim such that the doubt is "within the range of probability as distinguished from pure speculation or remote possibility." See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (holding that medical evidence that is speculative, general or inconclusive in nature cannot support a claim). The evidence currently available does not allow for an adequately supported medical opinion that could meet this standard. Thus, the third McLendon element is not satisfied. Similarly, the fourth McLendon element is not satisfied in that the record clearly shows that the Veteran did not experience any knee problems until many years after service, including a finding of normal lower extremities in the February 1987 reserve examination report. Thus, as a matter of logic, a nonspeculative opinion cannot be made merely based on the Veteran's unsupported, and generally not credible, allegation of repeated stress to his knee during physical training, especially in the absence of credible evidence of any knee symptoms or pathology at the time. Accordingly, there is sufficient evidence to decide the claim within the Board's competence, and thus no need for a VA opinion. See Colvin v. Derwinski, Vet. App. 171, 175 (1991) (holding that the Board is not competent to substitute its own opinion for that of a medical expert). Accordingly, the McLendon elements are not satisfied and a VA examination is not warranted. McLendon, 20 Vet. App. at 83. In sum, VA's duty to notify and assist under the VCAA has been satisfied. The Veteran has had ample opportunity to participate in the development of his claim. See Arneson v. Shinseki, 24 Vet. App. 379, 389 (2011) (citing Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that any error depriving a claimant of "a meaningful opportunity to participate effectively in the processing of his or her claim . . . . must be considered prejudicial")). As shown above, any defect in the notice or assistance provided did not affect the outcome of this claim or compromise the "essential fairness of the adjudication." See Mayfield v. Nicholson, 19 Vet. App. 103, 116 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Thus, any error in the notice or assistance provided was harmless, and no prejudice exists. See Shinseki v. Sanders 556 U.S. 396, 407, 410 (2009) (holding that the "rule of prejudicial error" requires a case-by-case determination as to whether the error in question was harmless, and that it is the burden of the claimant to show that the error was harmful by at least providing an explanation as to how the error caused harm); see also 38 U.S.C.A. § 7261(b)(2) (West 2002). Accordingly, the Board may proceed with appellate review. III. Analysis The Board has thoroughly reviewed all the evidence in the claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C.A. § 7104 (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, it need not discuss each piece of evidence. See id. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995) The standard of proof to be applied in decisions on claims for veterans' benefits is the benefit-of-the-doubt rule set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must weigh against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Board must assess the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). This evaluation generally involves a three-step inquiry. First, the Board must determine whether the evidence is competent. See, e.g. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Second, the Board must determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). Third, the Board must assess the probative value and weight of the evidence in light of the entire record. Gonzales, 218 F.3d at 1380-81. As observed by the Federal Circuit, lay evidence must "demonstrate some competence." See King v. Shinseki, 700 F.3d, 1339, 1345 (Fed. Cir. 2012) (citing 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.307(b)) (internal quotation marks omitted). The Board may therefore discount the probative value of lay evidence if it finds such evidence not to be competent. See id. (affirming the Court's finding that the Board did not improperly discount the probative value of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration). However, the Board may not "categorically" require medical evidence or disregard lay evidence without first assessing its competence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (holding that it was error in a cause-of-death claim to find "categorically" that a medical opinion was required to prove a nexus between the Veteran's service-connected mental disorder and his drowning death, and likewise to reject categorically the claimant's testimony on this issue as not competent simply because she was a lay person); see also Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011) (holding that the Board erred in categorically rejecting lay evidence without analyzing and weighing it). Importantly, lay statements submitted by or on behalf of a claimant can be competent with respect to both the diagnosis and the etiology or cause of a disability. See Davidson, 581 F.3d at 1316. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. See 38 C.F.R. § 3.159(a)(2); Layno, 6 Vet. App. at 469 (holding that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise). Lay evidence is competent if it is provided by a person who has first-hand knowledge of facts or circumstances, or conveys matters that can be observed and described by a lay person. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that appellant was competent to testify as to factual matters of which he had first-hand knowledge, such as experiencing pain in his right hip and thigh in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy). For example, the Court has held that a lay person is competent to diagnose a disease with "unique and readily identifiable features" such as varicose veins. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Similarly, the Court has found a lay person competent to identify tinnitus and flat feet, which are disorders that can be identified based on lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). However, lay testimony is not competent with respect to determinations that are "medical in nature" or require medical knowledge due to their complexity. See Barr, 21 Vet. App. at 309. For example, the Court held that a claimant was not competent to determine whether he had rheumatic fever, which was a more medically complex condition. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The Federal Circuit has held that lay evidence may be competent and sufficient to establish a diagnosis of a condition in the following circumstances: (1) when the condition is simple, such as a broken leg, as opposed to when the condition is more complex, such as a form of cancer; (2) when the layperson is reporting a contemporaneous medical diagnosis, or; (3) when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372, 1377 & n4 (Fed. Cir. 2007). Competent medical evidence, as distinguished from lay evidence, is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a)(1). Competent medical evidence may include statements conveying sound medical principles found in medical treatises. Id. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. Id. The competency of evidence differs from the weight assigned to the evidence, which varies according to its credibility, probative value, and relationship to other items of evidence. See Layno, 6 Vet. App. at 469 (holding that the weight and credibility of testimony, as distinguished from its competency, is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted); accord Rucker v. Brown, 10 Vet. App. 67, 74 1997); see also Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the "authority to discount the weight and probity of evidence in the light of its own inherent characteristics in its relationship to other items of evidence"); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (stating that "although interest may affect the credibility of testimony, it does not affect competency to testify."). The Board discounts the weight of evidence it finds not to be credible. See Washington, 19 Vet. App. at 368 (noting that the witness's credibility affects the weight to be given to his testimony). In determining whether statements submitted by a veteran are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. at 711, aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). Further, the Federal Circuit has held that while the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record."). Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of the other factors. See Cartright, 2 Vet. App. at 25; accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . ."). Service connection may be established for a disability resulting from disease 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 be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In interpreting sections 1110 and 1131 of the statute and section 3.303(a) of the regulations, the Federal Circuit held that a three-element test must be satisfied in order to establish entitlement to service connection. Walker v. Shinseki, 708 F.3d 1331, 1333 (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004))). Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement). Id. However, claims for certain chronic diseases-namely those listed in 38 C.F.R. § 3.309(a)-benefit from a somewhat more relaxed evidentiary standard under 38 C.F.R. § 3.303(b). See Walker, 708 F.3d at 1339 (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases"). Specifically, when a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes"). 38 C.F.R. § 3.303(b). In order to establish the existence of a chronic disease in service, the evidence must show 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." Id. Thus, the mere manifestation during service of potentially relevant symptoms (such as joint pain in a claim for arthritis or abnormal heart action in a claim for heart disease) does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned. Id. If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim. Id. The Federal Circuit noted that the requirement of showing a continuity of symptomatology after service under subsection 3.303(b) is a distinct and lesser evidentiary burden than the nexus element of the three-part test discussed above: "The primary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the 'nexus' requirement of the three-element test, whereas the former benefits from presumptive service connection . . . or service connection via continuity of symptomatology" (emphasis added). Walker, 708 F.3d at 1338-1339. Thus, showing a continuity of symptomatology after service is an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation" for chronic diseases. Id. at 1338; see also id. at 1336 (observing that section 3.303(b) provides a "second route by which a veteran can establish service connection for a chronic disease"). A continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during the] presumptive period." Id. at 1338. Not all diseases that may be considered "chronic" from a medical standpoint qualify for the more relaxed evidentiary standard under section 3.303(b). Rather, the Federal Circuit held that this subsection only applies to the specific chronic diseases listed in 38 C.F.R. § 3.309(a). Id. Thus, if the claimed disability is not one of the chronic diseases enumerated in section 3.309(a), then the more relaxed continuity-of-symptomatology standard does not apply, and "the 'nexus' requirement of the three-element test" must be satisfied in order to establish entitlement to service connection benefits. Id. Because the Veteran has been diagnosed with arthritis of the right knee, and arthritis is defined as a chronic disease in section 3.309(a), the provisions of subsection 3.303(b) for chronic disabilities apply, and the claim may be established by evidence of a continuity of symptomatology after service. See Walker, 708 F.3d at 1338-1339. The Veteran's right knee arthritis is also eligible for presumptive service connection. Specifically, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, service connection for osteoarthritis may be established on a presumptive basis by showing that the 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. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307; 3.309(a). However, this presumption may be rebutted if there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(d). The Veteran has been diagnosed with severe degenerative patellofemoral compartment disease of the right knee with a lateral subluxation of the patella, joint space narrowing, marginal spurring, chondral erosion, and a moderate to large joint effusion, according to a July 2005 private MRI study report. The Veteran argues that his current right knee disorders are related to repeated impacts and strain on his right knee during active service as an Infantryman. Specifically, as reflected in a June 2009 private treatment record authored by an L. Kreighauser, MD, the Veteran contends that he had "multiple injuries" to his knee during active service, and received medical treatment for right knee problems several times. He reported that in physical training exercises he had to drop quickly to the ground and would usually land on his right knee, and also had to crawl on his knees. The Veteran has not stated, and the evidence does not otherwise show, that he served in combat or that his right knee disorder is due to a combat-related injury. In the June 2009 treatment record, Doctor Kreighauser stated that "this type of physical activity and stress on the knee could certainly predispose a person to get premature arthritis in the knee joint similar to someone who has had multiple injuries to [his] knee playing sports." The physician further noted that the Veteran reported having service treatment records showing that he was seen several times for injuries to his right knee. The physician stated that this "type of history . . . could be a significant factor in [the Veteran's] developing advanced arthritis in his right knee at a young age." The service treatment records reflect treatment for a number of conditions, including a back injury, a right ankle injury, and a shoulder injury, but make no mention of a right knee injury or knee symptoms. According to a February 1981 "Disposition Form," a separation examination was not performed as the Veteran's health records had been reviewed and it was determined that such an examination was not required. Thus, the service treatment records do not show that the Veteran injured his knee during service or that a knee disorder manifested at that time. Nevertheless, the Veteran stated in his July 2009 NOD and January 2010 substantive appeal (VA Form 9), that he was treated for right knee problems during service. Treatment records dated after the Veteran's period of active service do not otherwise indicate that a right knee disorder manifested in service, but rather show that it did not manifest until at least several years after service separation. A February 1987 Army Reserve examination, dated six years after the Veteran's February 1981 discharge, shows that his lower extremities, which would include his knees, were found to be normal on clinical evaluation. In the accompanying report of medical history, he denied a history of a "trick" or locked knee, and did not otherwise report a history of knee problems. The earliest evidence of right knee problems is a July 2005 private treatment record, according to which the Veteran reported right knee pain that had been "ongoing for years." He denied "any known injury," but stated that he had been involved in a car accident about six years earlier. He did not mention knee problems during active service. There are no earlier records of treatment for the Veteran's right knee, and the Veteran has not stated that he received treatment for his right knee as a civilian prior to this date. Moreover, there is no additional information or evidence relevant to this claim. Given the silence in the service treatment records with regard to a right knee injury, the findings of normal lower extremities in the February 1987 reserve examination report, and the lack of any evidence of right knee pathology or problems after service until the July 2005 private treatment record, at which time the Veteran denied a history of known injuries to the knee, his allegation that he was treated for right knee problems during active service is not credible. See Caluza, 7 Vet. App. at 511 (holding that when determining whether lay evidence is satisfactory, the Board may properly consider, among other things, its plausibility and consistency with other evidence submitted on behalf of the Veteran); Madden, 125 F.3d at 1480 (observing that "lay evidence which is in fundamental conflict with other lay evidence and is, for that reason, found not credible in a given case, is surely suspect."). In this regard, the Court has held that silence in the service treatment records can constitute "contradictory" evidence weighing against the credibility of a claimant's testimony. Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring). In order to infer from this silence that a claimed disability did not manifest during active service, the Board must find that the service treatment records are complete "in relevant part," and that the claimed "injury, disease, or related symptoms would ordinarily have been recorded had they occurred." Id. (citing Fed.R.Evid. 803(7) (the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded)). The Court noted that in making this determination, the Board may be required to consider the limits of its own competence on medical issues. Id.; see also Colvin v. Derwinski, Vet. App. 171, 175 (1991) (holding that the Board is not competent to substitute its own opinion for that of a medical expert). For example, in Kahana, the Court held that the Board could not make an independent determination that an injury to the anterior cruciate ligament (ACL) would have been documented in the service treatment records without supporting medical evidence. See id.at 434 (majority opinion). As discussed above in the section addressing VA's duty to assist under the VCAA, the Veteran's service treatment records appear to be complete in every respect. They span the entire period of his active service and show that he was treated for a number of medical conditions during this time, including orthopedic complaints, and yet make no mention of any right knee injury or symptoms despite his allegation that he was treated several times for right knee problems. It is within the Board's competence to find it implausible that a report of a right knee injury, right knee pain, or other symptoms would not once be noted in the service treatment records when the Veteran alleges that he received treatment for his right knee on multiple occasions during service. This finding is reinforced by subsequent evidence showing that the Veteran's lower extremities were found to be normal in the February 1987 reserve examination report, that he denied a history of a "trick" or locked knee in the accompanying report of medical history, and that he denied a known history of knee injuries when he sought treatment in July 2005 for his right knee symptoms. Thus, taken together, the silence in the service treatment records and the conflicting post-service treatment records show that the Veteran's allegation of receiving treatment for his right knee during service is not credible. See id.; see also See Caluza, 7 Vet. App. at 511; Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). Further, because the credible evidence shows that the Veteran was not treated for right knee symptoms during service, it follows that he did not experience such symptoms during service, as the existence of such symptoms and the fact of treatment for them are one and the same in terms of his allegations. In other words, he does not claim that he experienced right knee symptoms in service but did not seek treatment for them. Thus, the preponderance of the evidence shows that right knee symptoms or pathology of the knee did not manifest during active service. Therefore, an acute or chronic right knee condition did not manifest during active service. The Veteran has never stated, and there is no evidence otherwise suggesting, that he experienced a continuity of right knee problems ever since active service. Accordingly, in the absence of credible evidence of a chronic right knee disorder during active service or a continuity of symptoms in subsequent years, service connection under subsection 3.303(b) is not warranted. See Walker, 708 F.3d at 1338-1339. Service connection is also not warranted under subsection 3.303(a). Specifically, the preponderance of the evidence weighs against a relationship between the Veteran's current right knee disorder and his allegation of repeated impacts and strain on his right knee during active service as an Infantryman, presumably during physical training exercises. Although Dr. Kreighauser opined that this type of stress "could certainly predispose a person to get premature arthritis in the knee joint," he did not provide an opinion as to the likelihood that the Veteran's right knee disorders were related to stress that occurred over twenty years prior to the first diagnosis of right knee pathology. Moreover, to the extent the physician applied this stated medical principle to the Veteran's case, it was apparently premised on the belief that the Veteran was treated several times for "multiple injuries" to his right knee during service. In this regard, Dr. Kreighauser stated that this "type of history . . . could be a significant factor in [the Veteran's] developing advanced arthritis in his right knee at a young age." As the Veteran's allegation of being treated for right knee injuries during service is not credible, Dr. Kreighauser's opinion lacks probative value, as it appears to be almost entirely based on this alleged history. See Reonal v. Brown, 5 Vet. App. 458 (1993) (holding that a physician's opinion based on an inaccurate factual premise has no probative value). Thus, the only evidence supporting the Veteran's claim is Dr. Kreighauser's general observation that repeated stress to the right knee "could certainly predispose a person to get premature arthritis in the knee joint." This evidence is not sufficient to trigger application of the benefit-of-the-doubt rule, as it is not specific to the Veteran's case or history and does not take into account the nature and extent of any such impacts or the time that elapsed between the Veteran's separation from service and the earliest diagnosis of arthritis over twenty years later. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that the probative value of a medical opinion comes from its reasoning, and is not entitled to any weight if it contains only data and conclusions). Moreover, the phrase "could certainly predispose" underscores the speculative nature of such a determination. In order for the benefit-of-the-doubt rule to apply, there must be some "positive" evidence supporting the claim such that the doubt is "within the range of probability as distinguished from pure speculation or remote possibility." 38 C.F.R. § 3.102; see Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996) (holding that a "generic statement about the possibility of a link" to service is "too general and inconclusive" to be probative (emphasis in original)); Obert v. Brown, 5 Vet. App. 30, 33 (1993) (holding that a physician's statement that the Veteran "may have been having some symptoms of his multiple sclerosis for many years prior to the date of diagnosis" was speculative and thus not sufficient by itself to support the claim (emphasis in original); see also Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992) (holding that evidence that does little more than suggest a possibility that the Veteran's illnesses might have been caused by in-service radiation exposure is insufficient to establish service connection). As discussed above, given the absence of credible evidence of any right knee problems during service, and in light of the amount of time that elapsed between service and the earliest evidence of right knee pathology over twenty years later, a VA opinion is not warranted, as it is clear that even if a favorable opinion were rendered, it would by necessity be equally as speculative as Dr. Kreighauser's opinion (irrespective of whatever language was used to express it in terms of likelihood), and thus would not further support the claim. See id. Weighing against a relationship between the Veteran's current right knee disorder and any impacts or strain on his right knee during service is the fact that there is no credible evidence that he experienced any right knee pain or symptoms during service, or that right knee pathology manifested at the time. Further weighing against a relationship to service is the long amount of time that elapsed between the Veteran's February 1981 discharge and the earliest evidence of right knee pathology in July 2005, which is dated over twenty years after the Veteran's separation from active service. Notably, although the Veteran stated at this time that his right knee pain had been "ongoing for years," he did not report a history of right knee problems during service or suggest that such pain had been present for decades, and denied a history of any known injuries to the knee. This long period of time between the Veteran's period of active service and the earliest credible evidence of a right knee disorder weighs against a relationship to service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that a proper consideration for the trier of fact is the amount of time that has elapsed since military service, and that evidence of a prolonged period without medical complaint can be considered, along with other factors concerning the Veteran's health and medical treatment during and after military service, as evidence of whether a condition was incurred in service). The Veteran's opinion that his right knee disorders were caused or aggravated by repeated impacts to his knee during active service does not constitute competent evidence, as this is a determination that is too complex to be made based on lay observation alone given the long period of time that passed between active service and the earliest evidence of right knee problems, without credible evidence of right knee problems during service or in the intervening years. See Jandreau, 492 F. 3d at 1376-77; Barr, 21 Vet. App. at 309. For the reasons discussed above, the preponderance of the evidence weighs against such a relationship. Accordingly, in addition to the fact that a chronicity in service or a continuity of symptomatology after service has not been established, the nexus element of the three-part test under Shedden is not satisfied. See 38 C.F.R. § 3.303; Shedden, 381 F.3d at 1166-67. Therefore service connection on a direct basis is not warranted. See 38 C.F.R. § 3.303; Walker, 708 F.3d at 1338-1339; Shedden, 381 F.3d at 1166-67. Because the preponderance of the evidence shows that the Veteran's right knee arthritis did not manifest within one year of service separation, service connection on a presumptive basis is also not warranted. See 38 C.F.R. §§ 3.307, 3.309. In sum, the preponderance of the evidence is against the Veteran's claim. Consequently, the benefit-of-the-doubt rule does not apply, and service connection for a right knee disability is denied. See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. ORDER Entitlement to service connection for a right knee disability is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs