Citation Nr: 1320117 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 07-34 042 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for degenerative joint disease of the right knee with total arthroplasty. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. H. Stubbs, Counsel INTRODUCTION The Veteran served on active duty from May 1961 to May 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. This appeal was previously before the Board in August 2011. The Board remanded the claim so that treatment records could be requested. The case has been returned to the Board for further appellate consideration. The issues of entitlement to service connection for a psychiatric disorder, and to reopen an issue of entitlement to compensation under 38 U.S.C.A. § 1151 for left humerus fracture and dislocation have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDING OF FACT It has not been shown by competent and probative evidence to at least equipoise that the Veteran incurred a right knee disability in service or that arthritis of the right knee manifested to a compensable degree within any applicable post-service year. CONCLUSION OF LAW Service connection for a right knee disability is not established. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Under the Veterans Claims Assistance Act of 2000 (VCAA), when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), 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. A VCAA letter dated in March 2007 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187. The Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claims. This letter informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. Furthermore, the letter described how appropriate disability ratings and effective dates were assigned. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and available, relevant VA and private medical records are in the claims file. The Board notes that the Veteran was sent a letter in March 2007, which requested that he notify VA of all VA and private treatment that he has received for his knee conditions since his separation from service and informed him to submit an Authorization and Consent to Release Information form for all private treatment he has received. In April 2012, the Veteran was sent a letter noting that any treatment records from 1972 to 1974 from the St. Cloud VA medical center (MC) were unavailable and requesting that he furnish any copies he may have in his possession. Additionally, a Formal Finding of Unavailability was issued in April 2012. The St. Cloud VAMC indicated that the Veteran's treatment records (specific dates were not indicated) were transferred to the Sioux Falls healthcare system in 1998 and 20005. The Sioux Falls healthcare system indicated that they did not have any treatment records from 1972 to 1974. Additionally, the Board notes that in August 2007 L.K. from Murray County Medical Center indicated that the Veteran had reported he was treated by Dr. R.P. in the early 1970s. L.K. noted that Dr. R.P. had unfortunately died several years ago and she was unable to find any records of the Veteran's visit. The x-ray department was also unable to find any records of his visit. Therefore, the Board finds that all available records identified by the Veteran as relating to these claims have been obtained, to the extent possible. The record contains sufficient evidence to make a decision on the claims. VA has fulfilled its duty to assist. With regard to claims for service connection, 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. 38 C.F.R. § 3.159(c)(4)(i). The Veteran was provided a VA examination for these claims in September 2007. The examiner reviewed the claims file, conducted the appropriate diagnostic tests and studies, and noted the Veteran's assertions. The Board finds this examination report and opinion to be thorough, based on an accurate understanding of the Veteran's history, and otherwise sufficient upon which to base a decision with regard to these claims. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Laws and Regulations Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. see Savage v. Gober, 10 Vet. App. 488. at 495-96 (1997); see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). I n fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Certain diseases, to include arthritis, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. Factual Background and Analysis The Veteran claims entitlement to service connection for right knee degenerative joint disease due to an injury he incurred in service. In a June 2007 statement, the Veteran reported that he was inspecting an airplane in the snow when he stepped out onto the wing, slipped on 3 inches of snow, and fell onto his right knee. He stated that his knee was swollen and he was limping, but that he was merely treated with Ibuprofen and a wrap. He stated that this incident happened in 1963, and that he kept his knee wrapped for two weeks until the swelling went down. His knee would then swell off and on for the next ten years. Then in the 1970s his knee began to swell and "get hot" and the symptoms were more recurrent. He sought treatment at that time. His private physician sent him to the VA, and he stated he received treatment at St. Cloud VAMC in the early 1970s. He reported that he had fluid removed from his knee and that it was better for a short time afterward. Then in the 1990s his knee was swollen all the time. He continued to have his knee drained until March 2007 when he underwent knee surgery. Service treatment records note that the Veteran's right leg was treated for an abrasion. The wound was cleaned and redressed with Bacitracin ointment and sterile dressing for at least three days. There are no further complaints of right leg or right knee pain, injury or treatment. On his May 1965 separation evaluation he had a normal clinical evaluation of his lower extremities. As noted above, there are no treatment records from the Veteran's reported treatment in the early 1970s. His private treating physician is deceased and his records are unavailable. The VA treatment records were sought, but the Sioux Falls healthcare system indicated there were not treatment records from 1972 to 1974 in their possession. A VA treatment record from August 1997 is the earliest treatment record available. At that time the Veteran was undergoing an in-patient chemical dependency treatment program. As part of his initial assessment he provided a medical history. He reported he injured his left heel in 1971 when he was pulled off of a roof, and that his right knee was injured by a horse in 1980. In April 1998, he was noted to have prior treatment for bilateral knee pain and effusion. During treatment for alcohol dependence in August 2001, the Veteran reported a military history of service as a sheet metal repairer. He denied "any physical or emotional problems related to the military experience." In March 2004, the Veteran reported to treatment care providers that he slid off a plane in 1962 and he now suffers from joint discomfort when he walks. He also noted his right ankle had been dislocated several times. In February 2005, a VA treatment provider noted that the Veteran worked in roofing prior to his retirement in 2001. He retired due to his shoulder and knees. In August 2006, the Veteran reported his medical history to a mental health care provider. He described drinking daily in service, and working with aircraft but did not report his knee injury. He reported that he began working for a commercial roofing company after service and continued drinking daily. He fell while on the job and was "seriously injured." He was given the option of going to Business School, after which he moved to Florida and sold business machines. He eventually started his own full-time roofing business in 1980. Subsequent to his right knee surgery in March 2007, the Veteran fell off of the roof of his shed and broke his right leg. The August 2007 letter from Murray County Medical Center documented the Veteran's reported history of an initial knee injury in 1963 in service. L.K. indicated that she had found an entry that the Veteran was referred to a physician at Sioux Falls for a right knee injury in 1981, "but I believe this was for a secondary injury to the right knee." In August 2007, the Veteran and his wife had an informal conference with a Decision Review Officer. A report of the conference is of record. The Veteran reported he injured his knee in service falling off a plane and that his knee has hurt ever since. He reported he was first treated in the 1980s. The Veteran's wife also reported that the Veteran has had knee problems since service. While the Board was unable to locate a marriage license, the Veteran indicated on his formal claim that they were married in 1968, and a birth certificate for their first child is from 1967. In September 2007, the Veteran was afforded a VA joint examination. The Veteran reported an injury to his right knee in service after falling off an airplane. He stated that his knee "started to bother him in approximately 1974, when he was doing a lot of work on concrete and started having progressing symptoms in the 1980s and 1990s. The examiner noted that the Veteran had long history of working as a roofer. The examiner reviewed the claims file, including the Veteran's service treatment records. He noted the Veteran's in-service treatment for a right knee abrasion, and the separation examination which noted normal clinical evaluation of the lower extremities and no defects or diagnoses. The examiner also noted that a February 1999 x-ray revealed advanced degenerative joint disease, and that the private treatment care provider noted referral for right knee treatment in 1981. The examiner noted the Veteran suffered a superficial injury in service in July 1963, and that there was no other treatment to substantiate a serious knee injury of any type. The examiner noted the Veteran's contention that he did not have symptoms until 1974 when he began working on concrete, and that his symptoms progressed in the 1980s and 1990s. The examiner noted that there was no objective evidence that the injury in service progressed into a right total knee arthroplasty in 2007 as there are no treatment records for more than 30 years. The examiner opined that it is less likely as not that his current knee problems are due to his minor knee injury documented in his service treatment records. In adjudicating a claim, the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Board acknowledges that the Veteran is competent to give evidence about what he experiences. See Layno v. Brown, 6 Vet. App. 465 (1994). Competency of evidence, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). See also Buchanan, supra (The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. If the Board concludes that the lay evidence presented by a veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence.) The Board has considered the lay assertions of the Veteran and his wife regarding his in-service injury and his report of continuing symptoms thereafter. As noted, he has reported ongoing swelling of his right knee in service after his 1962/1963 fall, yet there are no service treatment records regarding treatment for his injury and he had a normal clinical evaluation upon separation in 1965. Additionally, although he reports that he has had ongoing problems with his right knee, he has also indicated he did not seek treatment until 1974. Most significantly, he also conversely told the VA examiner that his symptoms began ("started to bother him") in 1974, as opposed to having continuous or recurring symptoms since the in-service injury. While the Veteran reported to mental health treatment care providers that he injured his right knee due to a horse-injury in 1980 and that he had a "serious" injury after an on-the-job fall sometime prior to 1972, he has never directly repeated that he suffered these injuries to VA during the course of this claim or to the VA examiner. Likewise, the Veteran's wife did not report these additional injuries during the informal conference. The available records indicate that the Veteran has had serious alcohol use for a long period of time. The Board finds this significant as medical records indicate that he is a fall risk, and he indeed fell and broke his leg in 2008, and fell during hospital treatment in 2001. He reported to mental health treatment providers that he was drinking daily while working as a roofer, and during the time period when he seriously injured himself in a fall in the early 1970s. Given the multiple discrepancies in the Veteran's statements, and the Veteran's failure to disclose pertinent details of his medical history to the VA examiner, the Board finds that the statements of the Veteran and his wife regarding a continuity of symptomatology since service are not credible. Thus, the record does not include: service treatment records document complaints of, treatment for, or a diagnosis of a right knee injury (as opposed to a right leg abrasion); credible statements of continuity of symptomatology; or a medical nexus between the Veteran current knee disorder and his military service. In addition, the VA examiner found that it was unlikely that his current knee disability is related to military service. Additionally, the evidence of record does not include a diagnosis of arthritis to a compensable degree within one year of discharge from service. For these reasons, the Board concludes that entitlement to service connection for right knee degenerative joint disease with total arthroplasty is not warranted. ORDER Entitlement to right knee degenerative joint disease with total arthroplasty is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs