Citation Nr: 1321075 Decision Date: 07/01/13 Archive Date: 07/12/13 DOCKET NO. 12-25 899 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a bilateral knee disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C.L. Krasinski, Counsel INTRODUCTION The Veteran, the appellant in this case, had active service from April 1954 to March 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the St. Petersburg, Florida, Regional Office (RO), which denied service connection for a bilateral knee disability. The Veteran requested a hearing before the Board. A hearing was scheduled in April 2013, but he failed to report to the hearing without explanation. Accordingly, the Board will proceed as if the hearing request had been withdrawn. See 38 C.F.R. § 20.704(d) (2012). A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran did not sustain an injury or disease of the either knee during service. 2. The Veteran did not experience chronic symptoms of disability of either knee during service. 3. The Veteran did not experience continuous symptoms of disability of either knee in the years after service. 4. A bilateral knee disability of arthritis was not manifested to a degree of ten percent within one year of service separation. 5. The Veteran's bilateral knee disability, diagnosed as arthritis, is not caused by any in-service event, and is not related to service. CONCLUSION OF LAW A bilateral knee disability to include degenerative joint disease was not incurred in active military service, nor may such a disability be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the 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). VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The Board finds that the VCAA notice requirements have been satisfied by a letter dated in January 2010. The VCAA letter informed the Veteran of the evidence and information needed to substantiate a claim for service connection and informed the Veteran of which information and evidence he was to provide to VA and which information and evidence VA would attempt to obtain on his behalf. VA informed the Veteran it had to obtain any records held by any federal agency. These letters also informed the Veteran that on his behalf VA would make reasonable efforts to obtain records that were not held by a federal agency, such as records from private doctors and hospitals. Finally, the letter told the Veteran that he could obtain private records himself and submit them to VA. The VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection was awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the January 2010 letter explained the type of evidence necessary to establish service connection and the type of evidence necessary to establish a disability rating and effective date for the claims on appeal. VA has a duty to assist a veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's service treatment records were obtained and are associated with the claims folder. VA treatment records dated in 1956, 1966, and from 2011 to 2012 are associated with the claims folder. The Veteran submitted private medical records in support of his claim. In February 2010, VA contacted the Veteran and asked him if he wanted the RO to conduct additional development for additional private medical records. The Veteran indicated that he did not wish the RO to conduct further development, and that he had submitted all that is necessary. VA has not afforded the Veteran a medical examination or nexus opinion relating to his claim for service connection for a bilateral knee disability. See 38 U.S.C.A. § 5103A(d)(2) and 38 C.F.R. § 3.159(c)(4)(i). As outlined in McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation claims, VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. The Board finds that such a VA examination and medical opinion are not necessary to render a decision under the circumstances of this case. A VA examination under the standards of McLendon is not warranted in this case because, as will be discussed in detail below, the weight of the evidence shows that there was no in-service injury or disease of either knee during service. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (where the Board makes a finding that lay evidence regarding an in-service event or injury is not credible, a VA examination is not required). Additionally, the weight of the credible evidence demonstrates no chronic knee symptoms in service, no continuous knee symptoms since service, and there is no evidence of a diagnosis of degenerative joint disease within the presumptive one year time period to establish arthritis symptoms during service or during the applicable presumptive period. For these reasons, the Board finds that referral of this claim for a VA examination or to obtain a medical opinion would be a useless act. The duty to assist is not invoked, even under McLendon, as here the evidence does not establish that an event, injury, or disease occurred in service or that arthritis manifested during the applicable presumptive period. Because "no reasonable possibility exists that such assistance would aid in substantiating the claim," a remand for further development is not warranted. 38 U.S.C.A. § 5103A(a)(2). For these reasons, the Board finds that the VCAA duties to notify and assist the Veteran have been met, so that no further notice or assistance to the Veteran is required to fulfill VA's duties. 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). Service Connection Laws and Regulations Service connection will be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires competent evidence showing, (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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). In this case, arthritis or degenerative joint disease is listed among the "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis become manifest to a degree of 10 percent or more within one year after the date of separation from such 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; 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. Id. With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both 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"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102 (2012). Service Connection Analysis The Veteran contends that he currently has a bilateral knee disability that was incurred in service. He now asserts that when he served in the Army from 1954 to 1956 during basic training on a 35 mile hike he injured his left knee, that dry knee was diagnosed, the knee was iced, and he was restricted for two days. The Veteran now states that he continued to have problems with the left knee, and that he iced it and took aspirin. The Veteran indicates that five months later in Germany he had another 35 mile march and his right knee did the same thing that his left knee did. He iced the right knee. The Veteran now states that he continued to have trouble with both knees and he iced them. The Veteran asserts that he treated himself after service from 1956 to 1974, and he had worn a brace on the left knee since 1956. The Veteran indicates that he received medical treatment for the knees from private doctors from 1956 to 2009. See the Veteran's statements dated in April 2010 and August 2012. Based upon a review of all the lay and medical evidence, the Board finds the weight of the competent and credible evidence shows that the Veteran did not sustain a left or right knee injury or disease during service; did not experience chronic symptoms of disability of either knee during service; did not experience continuous symptoms of disability of either knee in the years after service; and arthritis of the knees was not manifested to a degree of ten percent within one year of service separation to meet any of the presumptive service connection criteria. 38 C.F.R. §§ 3.303(b), 3.309(a). The Veteran is competent to report an observable symptoms such as pain. See Jandreau; supra. However, the Board finds that the Veteran's recent statements made for VA disability compensation purposes have limited credibility and, therefore, limited probative value, because the Veteran first made these statements over 50 years after service separation and the statements are inconsistent with, and outweighed by, the other lay and medical evidence of record. On the question of knee injury or disease during service, the service treatment records indicate that examination of the lower extremities was normal upon enlistment examination in March 1954 and again upon service separation examination in March 1956. The service treatment records do not document any knee injuries or disease, or even knee complaints, findings, diagnosis, or treatment of a disorder of either knee during service. On the questions of whether the Veteran sustained a knee injury or disease in service and whether knee symptoms were chronic in service, the service treatment records reflect that the Veteran sought treatment for various disorders or symptoms, including nerve injury to the finger, prostatitis and epididymitis, hand laceration, and pharyngitis. In light of the various visits for treatment and hospitalization, in the context of service treatment records that appear to be complete, the Board finds that, had the Veteran sustained a knee injury been suffering from knee symptoms during service, such complaints would have been reflected in the treatment records. See Kahana v. Shinseki, 24 Vet. App. 428, 439 (2011) (citing Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (Lance, J., concurring) (VA may use silence in the service treatment records as evidence contradictory to a veteran's assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred). This evidence shows that a knee injury or disease did not occur during service and that symptoms of a knee disorder were not chronic in service. With regard to post-service symptoms, the Veteran filed a claim for disability compensation benefits in April 1956 for six different disabilities, but did not file a claim for a knee disability or even mention symptoms of a knee disorder at that time. This suggests to the Board that there was no pertinent knee symptomatology at that time. While inaction regarding filing a claim is not necessarily indicative of the absence of symptomatology, where, as here, a veteran takes specific action regarding filing multiple other claims, it becomes reasonable to expect that the veteran is presenting all issues for which he is experiencing symptoms that he believes are related to service. The Veteran demonstrated that he understood the procedure for filing a claim for VA disability compensation, and he followed that procedure in other instances where he believed he was entitled to those benefits. In such circumstances, it is more reasonable to expect a complete reporting than for certain symptomatology to be omitted. Thus, the Veteran's inaction regarding a claim for a knee disorder, when viewed in the context of his action regarding other claims for compensation, may reasonably be interpreted as indicative of the Veteran's belief that he did not sustain a knee injury in service and did not have knee symptomatology at the time he filed the claim. The Veteran was afforded VA examinations soon after service in June 1956 and again in June 1961. The VA examination reports do not document any history of in-service knee injury, current complaints, clinical findings, or diagnoses pertinent to the knees. In the reported medical history given by the Veteran just three months after service, he did not report any history of knee injury or mention any complaints pertinent to the knees. Clinical examination of the knees on both VA examinations revealed no findings or disability of either knee, including no arthritis of either knee. Such evidence tends to show that a knee injury or disease did not occur in service and also that there were no chronic or continuous symptoms. VA hospital records dated in February 1966 show that the Veteran was hospitalized for cellulitis overlaying the right knee, but do not document any complaints or findings actually pertinent to either knee but was located over the knee. Cellulitis is an acute bacterial infection of the skin and subcutaneous tissue rather than joints. A bilateral knee disability was not diagnosed. A February 1966 x-ray examination of the left and right knees showed normal joints and no bony changes. Other evidence that supports a finding that the symptoms of knee disorder were not continuous since service separation include the fact that the Veteran first sought treatment for a left knee disability in 1996, almost 40 years after service separation. A May 1996 private medical record from Dr. Hollmann indicates that the Veteran had a probable meniscal tear in the left knee. Private medical records by Dr. Stockhammer indicate that the Veteran was treated for left knee pain in March 2007. Private records dated in November 2009 note that the Veteran had a long history of moderate left knee pain. Degenerative joint disease of the knee was diagnosed and it was noted that the Veteran a severe limitation in his ability to walk. VA treatment records dated in 2011 and 2012 document complaints of left knee pain. Such histories are notably absent for reference to in-service knee injury or chronic knee symptoms in service or continuous knee symptoms since service. The Board finds that the service treatment records and VA and private examination reports, which include histories made for treatment purposes, are more contemporaneous and more probative than the Veteran's lay statements made recently, 50 years after service, that were first made at and after filing the claim for VA compensation. The Veteran's claim dated in April 1956 and the June 1956 VA examination report are probative and weigh against a finding of continuous symptoms of a bilateral knee disability after service. The service separation examination report and the 1956 VA examination report do not document any complaints or symptoms. The April 1956 claim for VA compensation indicates that the Veteran asserted that he had six different disabilities that were incurred in service but he did not mention a bilateral knee disability. The June 1956 VA examination report does not document any complaints pertinent to the knees. Had the Veteran been suffering from chronic knee pain or other knee symptoms, such complaints would have been reflected by the service separation examination report, or the VA examination report, and the Veteran likely would have mentioned them or claimed service connection for them when filing claims for other disorders. The VA examination report specifically asked the Veteran for a history of such complaints. The Board finds that the lack of contemporaneous in-service complaints or treatment relating to the knees, and the lack of a report of a history of chronic symptoms or findings of a bilateral knee disability at the time of the Veteran's separation and soon after service establish that the Veteran did not have chronic knee symptoms in service and soon after service. As indicated, at the March 1956 service separation examination and at the post-service June 1956 VA examination, the Veteran's lower extremities were clinically evaluated as normal. Following service separation in March 1956, the evidence of record shows no complaints, diagnosis, or treatment for any knee disability until 1996, almost 40 years after service discharge. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor that tends to weigh against a claim for service connection). The absence of post-service complaints, findings, diagnosis, or treatment after service for many years until 1996 is one factor, considered in addition to the other factors stated in this decision, which tend to weigh against a finding of either chronic knee symptoms in service or continuous symptoms of knee disability after service separation. See Buchanan, 451 F.3d at 1337 (holding that the Board may weigh the absence of contemporaneous medical evidence as one factor in determining credibility of lay evidence, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence). While the Veteran is competent to state that he had knee symptoms at any time, including in service, the Board finds that the Veteran's more recent assertions of chronic knee symptoms in service and continuous knee symptoms since service, first made in the context of the January 2010 claim for service connection (VA disability compensation) for a bilateral knee disability, are outweighed by the other, more contemporaneous, lay and medical evidence of record, and are not credible. See Charles v. Principi, 16 Vet. App. 370 (2002). The recent statements of chronic knee symptoms in service and continuous post-service knee symptoms are inconsistent with both the histories and the findings in the service treatment records, a VA examination conducted in June 1956 soon after service, including the Veteran's own reported medical history at the June 1956 VA examination, an absence of complaints or treatment for decades after service, and the histories and symptoms credibly reported by the Veteran during post-service VA and private treatment. The Board finds that the weight of the competent and credible evidence establishes that the Veteran did not sustain an injury or disease of the knees during service, did not experience chronic knee symptoms in service, and did not experience continuous post service symptoms of a bilateral knee disability to include arthritis. See 38 C.F.R. § 3.303(b). Therefore, the criteria for presumptive service connection pursuant to 38 C.F.R. § 3.303(b) for chronic in service symptoms and continuous post service symptoms are not met. The Board finds that the weight of the competent and credible evidence establishes that the claimed degenerative joint disease of the knee did not manifest within one year of service separation and first manifested many years after service separation. The first mention or diagnosis of degenerative joint disease of the knee is in private treatment records dated in November 2009. Such findings are to be considered in the context of the other evidence showing no in-service injury or disease, and no chronic or continuous symptoms. For this reason, presumptive service connection pursuant to 38 C.F.R. § 3.309(a) for a chronic disease manifested to 10 percent within one year from service separation is not warranted. Finally, the Board finds that the weight of the evidence demonstrates that the bilateral knee disability is not caused by any in-service event or injury and is not otherwise related to service by competent. There is no medical evidence of record which medically relates the bilateral knee disability to active service. The Veteran himself has attempted to relate his bilateral knee disability to his active service and to the in-service marches or hikes. As noted, the Veteran, as a lay person, is competent to describe observable symptoms such as pain. Although lay persons are competent to provide opinions on some medical issues, see Kahana, 24 Vet. App. at 435, as to the specific issue in this case, an opinion as to the etiology and onset of a knee disability as complex as arthritis falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1377 n.4 (lay persons not competent to diagnose cancer). Some medical issues require specialized training for a determination as to diagnosis and causation; therefore such issues are not susceptible of lay opinions on etiology. Lay testimony on the question of relating the current knee disability to service is not competent in the present case because the Veteran is not competent to state that an orthopedic or joint disability was incurred in service. See Davidson v. Shinseki, 581 F.3d 1313, 316 (Fed. Cir. 2009); Kahana (lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent). A diagnosis of arthritis and medical opinion relating the arthritis to service requires clinical or diagnostic testing such as x-ray examination, and these tests are not found within the record during or immediately following his service period, as well as a knowledge of the likely progression of arthritis, including progression following trauma or injury. Additionally, an opinion of etiology would require knowledge of the complexities of the musculoskeletal system and the various causes of a knee disability and would involve objective clinical testing that the Veteran is not competent to perform. Moreover, as the weight of the evidence demonstrates no knee injury or disease during service, such a statement purporting to relate a current knee disability to service would be speculative as it would necessarily be based on an inaccurate factual assumption that a knee injury or disease occurred during service. The Court has held on a number of occasions that a medical opinion premised upon an unsubstantiated account of a claimant is of no probative value. See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). There is no competent medical evidence of record indicating that the current knee disability was caused or aggravated by injury or other event in service. The record contains many medical treatment and medical examination notations regarding the musculoskeletal system but at no time did a physician or other medical professional express an opinion regarding a link between the current knee disability and symptoms and any injury or event in service. For these reasons, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claim for service connection for a bilateral knee disorder, including arthritis, as a presumptive disease and on a direct basis, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for a bilateral knee disorder is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs