Citation Nr: 1320524	
Decision Date: 06/26/13    Archive Date: 07/05/13

DOCKET NO.  09-20 674	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina



THE ISSUE

Entitlement to service connection for a left knee disability.



REPRESENTATION

Appellant represented by:	American Legion



ATTORNEY FOR THE BOARD

J. Chapman, Associate Counsel




INTRODUCTION

The appellant is a Veteran who served on active duty from September 1962 to September 1965.  This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Columbia, South Carolina Department of Veterans Affairs (VA) Regional Office (RO).  


FINDING OF FACT

A left knee disability was not manifested in service, left knee arthritis was not manifested in the first year following the Veteran's discharge from active duty, and the Veteran's current left knee disability is not shown to be related to his service.


CONCLUSION OF LAW

Service connection for a left knee disability is not warranted.  38 U.S.C.A. §§ 1110, 1112, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012).  


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  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(a).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

VCAA notice requirements apply to all five elements of a service connection claim:  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 of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007).  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

The Veteran was advised of VA's duties to notify and assist in the development of his claim prior to its initial adjudication.  An August 2008 letter explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing.  It also informed the appellant of disability rating and effective date criteria.  He has had ample opportunity to respond/supplement the record, and has not alleged that notice in this case was less than adequate.

The Veteran's service treatment records (STRs) and pertinent post-service treatment records have been secured.  The RO did not arrange for a VA examination/opinion with respect to this claim.  The Board has considered whether an examination is necessary.  Absent any competent (medical) evidence suggesting that the Veteran's left knee disability may be associated with his service, an examination to secure a medical nexus opinion is not necessary, as even the low standard in McLendon v. Nicholson, 20 Vet. App. 27 (2006), is not met.  See 38 C.F.R. § 3.159(c)(4); Duenas v. Principi, 18 Vet. App. 512, 516 (2004).  The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide this matter, and that no further development of the evidentiary record is necessary.  See generally 38 C.F.R. § 3.159(c)(4).  The Veteran has not identified any evidence that remains outstanding.  VA's duty to assist is met.  



Legal Criteria, Factual Background, and Analysis

Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. §§  1110, 1131; 38 C.F.R.     § 3.303. Service connection may be granted for any disease initially 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).  

Certain chronic diseases (including arthritis), may be service connected on a presumptive basis if manifested to a compensable degree within a prescribed period of time (one year for arthritis) following discharge from service.  38 U.S.C.A.          § 1112; 38 C.F.R. §§ 3.307, 3.309.

To substantiate a claim of service connection, there must be evidence of the claimed disability; evidence of incurrence or aggravation of a disease or injury in service; and evidence of a nexus between the disease or injury in service and the current disability.  See Shedden v. Principi, 381 F.3d 1163, 1166-1167 (Fed. Cir. 2004).  The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a).
 
When there is an approximate balance of positive and negative 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.  When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).
 
The Board has reviewed all of the evidence in the Veteran's claims file and in the "Virtual VA" electronic records storage system.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail every piece of evidence of record.  See Gonzales v. West, 218 F. 3d 1378, 1380-81 (Fed. Cir. 2009).  Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows or fails to show as to the claim. 

The Veteran contends that his left knee disability is related to service.  His claim indicates it began in 1995.  His STRs are silent as to knee injury, complaints, or treatment.  On September 1965 service separation examination, his lower extremities were normal on clinical evaluation.  In an associated report of medical history, the Veteran specifically denied swollen or painful joints, arthritis or rheumatism, or a "trick"/locked knee.

Postservice VA treatment records beginning in June 2007 show complaints of left knee pain and popping.  A June 2007 MRI revealed mild degenerative joint disease (DJD).  The records are silent regarding the etiology of the disability.  

Medical records received from the Social Security Administration (SSA) include a May 2005 record showing assessments of osteoarthritis and gout.  Osteoarthrosis is noted as a secondary disability in the disability determination.  Otherwise, the records are generally unremarkable regarding the left knee.

It is not in dispute that the Veteran now has a disability of the left knee, to include arthritis.  Such disability has been diagnosed and treated, including by VA, since at least 2005.  However, a left knee disability was not manifested in service and arthritis of the knee is not shown to have been manifested in the Veteran's first postservice year.  The Veteran does not allege otherwise; in fact, his claim states it began in 1995 (some 30 years after service).  Hence, service connection for such disability on the basis that it became manifest in service and has persisted, or on a presumptive basis (for knee arthritis as a chronic disease under 38 U.S.C.A. § 1112) is not warranted.

What remains for consideration is whether or not the Veteran's left knee disability may somehow otherwise be related to his service.  Although laypersons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), whether or not a chronic disease with an insidious onset such as arthritis may be related to service that ended more than 40 years prior to the initial diagnosis is a medical question that requires medical expertise.  See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007).  The Veteran is a layperson and has not presented any competent (medical opinion/textual) evidence in support of his theory that his left knee arthritis is related to his service/activities therein.  Consequently, his opinion in this matter is not competent evidence.  

In fact, there is no competent evidence that shows or suggests that the Veteran's left knee disability/arthritis may be related to his service.  Without any competent evidence of a nexus between the Veteran's left knee disability and his service, the preponderance of the evidence is against the claim of service connection for a left knee disability.  Therefore, the appeal in this matter must be denied.


ORDER

Service connection for a left knee disability is denied.


____________________________________________
GEORGE R. SENYK
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs