Citation Nr: 1320640	
Decision Date: 06/26/13    Archive Date: 07/05/13

DOCKET NO.  05-16 645	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to service connection for a right knee disorder, claimed as residuals of a right knee strain.  


REPRESENTATION

Appellant represented by:	Virginia Girard-Brady, Attorney


ATTORNEY FOR THE BOARD

C. Ferguson, Counsel


INTRODUCTION

The Veteran had active service from May to December 1981.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.  The Board has reviewed the Veteran's physical claims file, as well as the electronic file on the "Virtual VA" system, to ensure a complete review of the evidence in this case.  
  
The Board previously denied the claim in August 2008.  The Veteran appealed to the Veterans Claims Court (Court).  In December 2009, the Court Clerk granted a Joint Motion for Remand (JMR), vacated the August 2008 Board decision, and remanded the case for compliance with the terms of the joint motion. 

After additional evidentiary development was accomplished, the Board again denied the claim in June 2012.  The Veteran again appealed the June 2012 decision to the Court.  In December 2012, the Court Clerk again granted a JMR, vacated the June 2012 Board decision, and remanded the case for compliance with the terms of the joint motion.  The case now returns to the Board.

The Board also received additional evidence and argument from the Veteran in March 2013, which was accompanied by waiver.  38 C.F.R. §§ 19.9, 20.1304(c) (2012).  Accordingly, the Board will consider the new evidence in the first instance in conjunction with the issue on appeal.        
 

FINDINGS OF FACT

1.  The in-service right knee complaints were not shown to be chronic.  Right knee pathology was not identified until many years after service.  

2.  The current right knee disorder is unrelated to service, to include any injury or event therein. 



CONCLUSION OF LAW

A chronic right knee disorder, claimed as residuals of a right knee strain, was not incurred in or aggravated by active service.  38 U.S.C.A. §§ 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012).  

Service connection may be established under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes.  For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.

Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned.  The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013).

In this case, the Veteran has been diagnosed with chronic right knee strain.  That disorder is not listed as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the "chronic" in service and "continuous" post-service symptom presumptive provisions of 38 C.F.R. § 3.303(b) only apply to "chronic" diseases at 3.309(a)).

Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from 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; 38 C.F.R. §§ 3.307, 3.309(a).  

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.  In this case, as above, knee strain is not listed in 38 C.F.R. §§ 3.307, 3.309(a); therefore, the one-year presumption does not apply.  

Finally, service connection may also be established for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  This has been interpreted as a three-element test based on nexus: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service.  See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009).  

In this decision, the Board has considered the lay evidence as it pertains to the issue.  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); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  

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").  

"Competent medical evidence" means that which is 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 lay evidence" is any evidence not requiring that the proponent have specialized education, training or experience, but is provided by a person who has the knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994).  

A veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses.  Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation).  

The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms").  

In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment.  Caluza v. Brown, 7 Vet. App. 498 (1995).  

With respect to evaluating the medical evidence, generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file.  Prejean v. West, 13 Vet. App. 444, 448-9 (2000).  

Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data.  Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data).  The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record.  Miller v. West, 11 Vet. App. 345, 348 (1998).

Medical evidence that is speculative, general or inconclusive in nature cannot support a claim.  Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996).  A physician's statement framed in terms such as "may" or "could" is not probative.  See Warren v. Brown, 6 Vet. App. 4, 6 (1993).

A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment.  See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis).

The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Board has reviewed all of 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, the extensive evidence of record.  Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim.

As noted above, there is ample evidence of record showing that the Veteran has a current chronic right knee disorder.  When he underwent a VA medical examination in connection with the appeal in July 2010, the examiner diagnosed chronic strain of the right knee with a possible loose body present resulting in complaints of locking of the knee.  As a current diagnosis of a chronic right knee disorder is established, the Board will next consider whether the record supports a finding of in-service incurrence.  

The Veteran's service treatment records reflect complaints, treatment, and diagnosis of a right knee disorder.  In October 1981, he reported to sick call for emergency care and treatment with complaint of right knee pain after straining his right knee the day before while repairing a tire.  He reported hearing a "pop" while getting up, stiffness, and nonspecific pain.   

On physical examination, the right knee showed no effusion or ecchymoses, the collateral and cruciate ligament test was normal, and the McMurray's test was negative.  After physical examination, the clinician diagnosed right knee strain and instructed the Veteran to use crutches for five days, take aspirin for five days, and follow up for treatment as needed.  The Veteran was also given a march waiver and placed on a profile (temporary restriction) for five days. 

Three days later, he returned to emergency care and treatment with continuing complaints of right knee pain.  He indicated experiencing persistent right knee pain.  Upon physical examination, the clinician noted that the right knee was unchanged from the prior examination, negative for effusion, stable, and was tender to palpation and during range of motion.  X-rays were within normal limits.  The clinician diagnosed right knee sprain and instructed the Veteran to continue on crutches, take aspirin, elevate the knee, apply heat, and to rest as much as possible.  He was returned to duty thereafter. 

On the November 1981 Report of Medical History completed approximately one month later when the Veteran was administratively discharged from service, he wrote that his health was good with the exception of a twisted knee.  He also checked "Yes" when asked if he then had or previously had had a bone, joint, or other deformity, as well as when asked if he then had or previously had had a trick or locked knee.  

In the portion of the report for physician's summary and elaboration of all pertinent data, the clinician wrote that the Veteran's trick knee/joint deformity referred to a right knee traumatic effusion in October 1981 that had been treated with support and aspirin for the pain.  At the November 1981 discharge examination, the right knee was swollen secondary to strain, and follow-up was negative. 

Although a current right knee disability is demonstrated and there is documented complaint, diagnosis and treatment for right knee symptomatology during service, the weight of the evidence is against finding that the Veteran's currently-diagnosed chronic right knee disorder had its onset during service or is otherwise causally or etiologically related to service.  

As stated above, the separation examination report noted negative follow-up findings on the right knee strain.  The first allegation of right knee problems due to the in-service right knee symptomatology was made when the Veteran filed the current claim seeking disability compensation benefits in October 2003, approximately 22 years after separation from active service.  

At that time, the Veteran was asked to list all the treatment he received for the right knee before, during, and after service.  In response, he listed only the in-service medical treatment received in October and November 1981.  He made no mention of any post-service medical treatment for the right knee.  See October 2003 VA Form 21-526.  In fact, the earliest evidence of medical treatment for the right knee is dated in 2005, approximately 24 years after separation from active service.  

Although not determinative, the multi-year gap (i.e., 22 years or more) between separation from active duty service (1981) and initial complaint of a right knee disorder is significant and weighs against the claim.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where Veteran failed to account for lengthy time period between service and initial symptoms of disability). 
     
In this regard, the Board has considered the Veteran's written statements asserting that he has had right knee symptoms since service; however, the assertion, while competent, is not credible because he has provided inconsistent statements regarding the history of treatment for right knee problems after service during the course of this appeal, has denied having any physical problems at various times when seeking medical treatment, and has related the onset of the knee problems to a time after service, which weighs against his credibility.  

For example, on the October 2003 VA Form 21-526, the Veteran wrote that he had received medical treatment for the right knee in October and November 1981 and made no mention of any post-service medical treatment for the right knee despite having been asked to identify any treatment received before, during, and after service for the right knee.  He also specifically checked "No" when asked if he had recently been hospitalized or received outpatient or home-based care for the knee.    

Next, when the Veteran filed the notice of disagreement (NOD) in October 2004, he wrote that the claim was denied, in part, because his "post military treatment was mostly in prison."  The October 2004 NOD is the first mention of post-service medical treatment for the right knee and contradicts his October 2003 statements that identified no post-service medical treatment for the right knee and specifically denied having recently received medical treatment for the right knee.  

Further, when the Veteran later provided authorization to release his medical records in July 2005 from the Department of Corrections for the period from October 1982 to July 2005, he wrote that he was treated for several conditions during the period, which may or may not have included treatment for the right knee.  In this statement, he expressed uncertainty regarding whether he recalled being treated for right knee symptomatology while imprisoned during the years following service.  

While records from that period were unable to be located and are not available for review, it is likely that the Veteran would have clearly recalled whether he received medical treatment for the right knee during the his imprisonment if he had experienced ongoing symptoms since service, as he has asserted, particularly in light of the fact that he clearly recalled being treated for several other medical conditions.  

The fact that he reported uncertainty regarding whether he ever received any medical treatment for the right knee during the 23 year period from October 1982 to July 2005 when providing authorization to VA to obtain the records is significant and contradicts the October 2004 NOD where he definitively stated that he was treated for the right knee during the period.

Also, the available prison medical records do not support the finding that the Veteran had ongoing right knee problems since service.  For example, in June 2004, the Veteran told a treating medical provider that he had no acute physical complaints.  Similarly, in August 2005, he denied having any medical problems.  

The Board observes that the Veteran wrote on a personal health history form completed in June 2005 that "occasionally" the right knee locked up and was painful.  This evidence further contradicts his assertion that he has had "ongoing" right knee symptomatology since service and is deemed particularly credible because his statements were made to medical providers for the purpose of obtaining treatment.  

Also, on the June 2005 personal health history form, the Veteran related the onset of right knee symptomatology to a time after service.  He wrote that he had experienced occasional locking and pain in the right knee for the past 20 years, which would have been since 1985 and years after service separation.  This statement contradicts the assertion of right knee symptoms since service.  

Although the Veteran has alleged that there was poor record keeping by prison medical examiners and that prison doctors do not treat seriously any condition by an inmate unless he is bleeding or unconscious, the Board finds that the allegation is not supported by the record.  See October 2004 NOD and April 2010 VA Form 21-4142.  

The available prison treatment records document the medical treatment the Veteran has received for a number of physical complaints during his incarceration such as high blood pressure, toothache, irritable bowel syndrome, hemorrhoids, and the need for prescription eye glasses.  The disorders for which he received medical treatment in prison are not shown to have been so severe as to result in bleeding or unconsciousness or to have not been treated seriously.  

For example, when the Veteran complained of right knee problems in June 2005, he was physically evaluated, and the right knee was shown to be within normal limits.  Later, when he complained of stress on his knee when climbing stairs in October 2005, a knee brace was requested.  This evidence contradicts his assertions that there was poor record keeping of treatment for the right knee or that the right knee condition, while present, was not treated seriously during his imprisonment.  

It also contradicts his January 2012 statement asserting that the prison would not treat the right knee because he sustained the injury in service rather than in prison.  The Board finds the prison medical records to be more credible and of far greater probative value than the Veteran's unsubstantiated lay assertions.

The Board has also considered the lay statements from the Veteran's brother and mother.  In the March 2011 statement from his brother, he wrote that the Veteran was using crutches when he returned home from service and tolerated the discomfort because their parents could not afford hospitalization and did not have the finances for medical treatment.  His brother added that, in hindsight, he believed that the Veteran's mobility then took a downward turn.  In the January 2013 statement from the Veteran's mother, she similarly recalled that he was on crutches when he was discharged from service and could not use his right leg for "quite some time."  

Because the service separation examination report notes that the Veteran then had a swollen right knee, it is plausible that the Veteran used crutches when he returned home from service; therefore, the lay statements regarding his initial use of crutches after returning from service are consistent with the record and credible.  However, neither his brother nor his mother specifically asserted that they had first-hand knowledge that he had ongoing right knee symptomatology from service until the present time.  

The Veteran's brother merely asserted that he believed that the Veteran's mobility took a downward turn after returning from service but did not reference any continued symptomatology involving the right knee from service to the present for which he had first-hand knowledge.  While his mother did note that he could not use the right leg for "quite some time" after service, the statement is vague and does not specifically allege that he continued to have right knee symptoms from service to the present.  

Furthermore, and significantly, the lay assertions of ongoing right knee symptoms since service are not consistent with other, more credible evidence of record.  As explained above, the first complaint of right knee problems allegedly related to service was not made until the Veteran filed the claim in October 2003, and the first evidence of treatment for right knee problems is dated in 2005.  

The assertion that the Veteran has had ongoing right knee symptomatology since service is not consistent with other, more credible evidence in the record.  As discussed above, he denied having any medical complaints at various times to medical providers, has provided inconsistent accounts of his history of treatment for right knee problems, and has once related the onset of his right knee symptomatology to a time after service.  This evidence is of greater probative value than the vague lay statements from his brother and mother.      

Moreover, the competent medical opinion evidence does not relate the Veteran's right knee disorder, which is found to have first manifested many years after service, to his period of active duty, despite his contentions to the contrary.  After considering the relevant medical history and complaints as documented in the record and reported by the Veteran, and considering the physical findings shown on examination, the July 2010 VA medical examiner opined that the Veteran's right knee disorder was "less likely than not" related to service.  

In support of the conclusion, the examiner noted the Veteran's in-service treatment for a right knee sprain and right knee strain in October and November of 1981.  She also noted the first instance of right knee complaints after service, which occurred in June 2005, and showed normal examination of the knee. 

The VA medical examiner explained that there was no evidence of a chronic right knee disorder diagnosed in service and no evidence of a chronic right knee disorder following discharge from service until approximately 24 years after discharge.  Thus, the VA medical examiner noted that there was a lack of documentation demonstrating a chronic right knee disorder occurred on active duty or following active duty. 

The Board notes that the July 2010 examiner considered the Veteran's relevant medical history and current complaints as documented in the claims file and reported by the Veteran at the examination, as well as the physical findings shown on examination.  The examiner provided a sound rationale for the conclusion that is consistent with the record.  There is no contrary medical opinion in the record.  In consideration of the foregoing, the Board finds that the July 2010 VA medical examination and medical opinion are adequate and of great probative value.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).
 
While the Veteran has recently argued that the July 2010 VA examination was inadequate because the examiner did not properly consider his competent lay statements regarding ongoing right knee symptomatology since service when rendering the medical opinion, the Board does not find the argument persuasive.  As discussed above, he has provided inconsistent statements during the course of this appeal regarding the onset of, and history of treatment for, right knee symptoms and the assertion of ongoing right knee symptomatology is inconsistent with other, more credible evidence of record.  

Therefore, the Board does not find the Veteran's statements asserting ongoing right knee symptomatology since service to be credible evidence, and there is no need for further medical examination or medical opinion for consideration of his lay account of right knee symptomatology since service in this case.

Thus, in summary, the evidence shows that the Veteran is currently diagnosed with a chronic right knee disorder and was treated for right knee symptoms during service; however, there is no nexus relationship between the Veteran's current chronic right knee disorder and service.  His assertion that he has experienced ongoing right knee symptomatology since service is not credible when weighed against other, more credible evidence of record.  

A chronic right knee disorder was not shown for many years after service, and the only competent medical opinion evidence does not link the right knee disorder to service.  For these reasons, the Board finds that the preponderance of the evidence is against the claim for service connection of a chronic right knee disorder, and the benefit-of-the-doubt rule is not for application; therefore, the appeal is denied.  

Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

Proper notice from VA must inform the claimant of any information and 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.  Quartuccio v. Principi, 16 Vet. App. 183 (2002).  This notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

When VCAA notice is delinquent or erroneous, the "rule of prejudicial error" applies.  See 38 U.S.C.A. § 7261(b)(2) (West 2002).  In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.  

Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in October 2003 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter.  The letter informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence.  Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content.

With respect to the Dingess requirements, in July 2006, the RO provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date.  With that letter, the RO effectively satisfied the remaining notice requirements with respect to the issue on appeal.  

Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b).  

Next, VA has a duty to assist a veteran in the development of the claim.  This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary.  See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). 

In determining whether a medical examination be provided or medical opinion obtained, there are four factors to consider: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing an in-service event, injury, or disease, or manifestations during the presumptive period; (3) an indication that the disability or symptoms may be associated with service; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim.  

With respect to the third factor, the types of evidence that "indicate" that a current disorder "may be associated" with service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).  

After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  


First, the Board notes that the claims file contains all available evidence pertinent to the claim.  VA has requested records identified throughout the claims process.  The Veteran was given appropriate notice of the responsibility to provide VA with any treatment records pertinent to the claim and the record contains sufficient evidence to make a decision on the claim.  

In addition, the Veteran's complete service treatment records are in the record.  Available post-service treatment records (i.e., prison treatment records) are associated with the record.  There are no additional pertinent treatment records found in the Virtual VA file.    

As noted in the March 2011 Board remand, the Veteran has been incarcerated nearly continuously since the early 1980s; however, only prison medical records dated from 2005 to 2008 have been associated with the claims file.  In a June 2010 letter from a prison employee, it was noted that volume II of his medical file was reviewed for right knee complaints.  The employee indicated that she did not know where volume I was located, but suggested that it may be located at a closed records facility. 

As such, the Board remanded the Veteran's claim in March 2011 to obtain volume I of his prison medical records.  After several attempts via fax and telephone calls to multiple prison facilities, as well as inquiries to the Veteran and his attorney, it was concluded that no additional prison medical records could be found from approximately early 1980 to 2005.  See reports of contact and copies of faxed documents dated April 2011 and June 2011. 

In an April 2011 letter, the Veteran was advised that all records of medical treatment from the prison facilities had been requested; however, the older records had not yet been obtained and were reported to be archived at another facility.  He was asked to provide the requested information within 30 days.  

In response, the Veteran stated that he did not have a copy of the identified records and would submit them to the office if they were later obtained.  He then asked VA to notify them if the records were unable to be obtained and cited to 38 C.F.R. § 3.159(e).  See April 2011 letter.  After being notified that the missing records had previously been forwarded and were no longer in the possession of the facility, the RO issued a SSOC in December 2011 and explained that no additional medical records could be found related for the period from 1982 to the present.       

In light of the foregoing actions, the Board finds that further efforts to obtain the additional prison treatment records would be futile.  Additionally, the duty to notify the Veteran of VA's inability to obtain records under 38 C.F.R. § 3.159(e) has been satisfied.  The April 2011 letter from the RO adequately identified the records VA was unable to obtain and explained the efforts to obtain the Veteran's prison medical records.  

The RO notified the Veteran that a decision may be made on the claim after 30 days if he did not send the information or evidence.  He stated that he did not have the identified records and asked that they be notified if the records were unable to be obtained.  He was so notified in the December 2011 SSOC.  Moreover, his reference to 38 C.F.R. § 3.159(e) in the April 2011 letter demonstrated actual knowledge of duty to notify when VA is unable to obtain the records and the provisions related thereto.  See Dalton v. Nicholson, 21 Vet. App. 23, 30 (2007) (Court was convinced that appellant had demonstrated actual knowledge of the information and evidence necessary to establish the claim).  

In consideration of the foregoing, the Board finds that there has been substantial compliance with the prior remand directive.  See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). 

Further, the Veteran was afforded with a medical examination in connection with the claim in July 2010.  The examiner interviewed the Veteran and considered the reported history of right knee injury and symptomatology during service, reported symptomatology after service, and current symptomatology.  The examiner also considered the physical findings and, thereafter, provided a medical opinion regarding the likelihood that the Veteran's currently-diagnosed chronic right knee disorder was causally related to service.  

The medical examiner had sufficient facts and data on which to base a medical opinion, and the medical opinion was supported by adequate rationale.  Because the Veteran's assertion of ongoing right knee symptomatology since service is not credible, the examiner's reference to the lack of documentation of right knee symptoms for 24 years after service in providing the rationale for the medical opinion does not render the medical opinion inadequate.  

For these reasons, the Board finds that the medical examination provided and medical opinion obtained are adequate, and no further medical examination or medical opinion is needed.  

Neither the Veteran nor the attorney has made the RO or the Board aware of any other evidence relevant to the appeal that needs to be obtained.  Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in the appeal and no further development is required to comply with the duty to assist him in developing the facts pertinent to the claim.  

No further notice or assistance is required to fulfill VA's duty to assist in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). 


ORDER

Service connection for a right knee disorder, claimed as residuals of a right knee strain, is denied. 



____________________________________________
L. HOWELL
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs