Citation Nr: 1321655 Decision Date: 07/05/13 Archive Date: 07/12/13 DOCKET NO. 11-04 286 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a chronic bilateral knee disability, to include arthritis, status-post bilateral total knee arthroplasty (TKA). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse, Mrs. R.S. ATTORNEY FOR THE BOARD Bernard T. DoMinh, Counsel INTRODUCTION The Veteran served on active duty from April 1954 to March 1956. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by the Detroit, Michigan, Regional Office (RO) of the Department of Veterans Affairs (VA) which, inter alia, denied the Veteran's claim of entitlement to service connection for a chronic bilateral knee disability, to include arthritis and status-post bilateral TKA. The Veteran and his spouse, accompanied by his representative, appeared at the RO to present evidence and oral testimony in support of his claim, first in May 2011 before a Decision Review Officer (DRO), and again approximately one year later in May 2012 before the undersigned traveling Veterans Law Judge. Transcripts of both hearings have been obtained and associated with the Veteran's claims file for the Board's review and consideration. In August 2012, the Board remanded the current issue on appeal to the RO via the Appeals Management Center (AMC) in Washington, D.C., for additional evidentiary and procedural development. Thereafter, the denial of service connection for a bilateral knee disability was confirmed in a June 2013 rating decision/supplemental statement of the case. The case was returned to the Board in June 2013 and the Veteran now continues his appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002) and 38 C.F.R. § 20.900(c) (2012). FINDINGS OF FACT A chronic bilateral knee disability, to include arthritis and status-post bilateral TKA, did not have its onset during active military service. CONCLUSION OF LAW A chronic bilateral knee disability was not incurred, nor is one presumed to have been incurred in active duty. 38 U.S.C.A. §§ 1110, 1111, 1112, 1113, 1131, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION In accordance with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). With respect to the service connection claim decided herein, generally, the notice requirements of a service connection claim have five elements: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must also: (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. See 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). 38 C.F.R. § 3.159(b) was revised and the requirement that VA request that the claimant provide any evidence in his possession that pertains to the claim was removed from the regulation. The bilateral knee disability claim on appeal stems from the Veteran's application for VA compensation, which was filed in July 2008. In response, a VCAA notice letter addressing the applicability of the VCAA to this specific claim and of VA's obligations to the Veteran in developing this claim was dispatched to the Veteran in November 2008, which addressed the matter and satisfied the above-described mandates, as well as the requirements that the Veteran be informed of how VA calculates degree of disability and assigns an effective date for the disability, as prescribed in Dingess v. Nicholson, 19 Vet. App. 473 (2006). As fully compliant notice preceded the initial adjudication of the Veteran's claim for service connection for a chronic bilateral knee disability in the September 2009 rating decision currently on appeal, there was no defect in the timing of this notice. VA also has a duty to assist the Veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim"). This duty includes assisting the Veteran in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant). VA informed the Veteran of its duty to assist in obtaining records and supportive evidence. The Board observes that the Veteran's private and VA clinical records dated for the period from 1969 to 2013 have been obtained and associated with the claims file or are otherwise viewable in the Virtual VA electronic database. Also, a copy of an August 1993 decision of the Social Security Administration (SSA) awarding the Veteran SSA disability benefits on the basis of being disabled as of January 1992 due to bilateral knee impairment has been obtained and associated with the claims file. In response to VA's query for additional SSA records, the SSA informed VA in an October 2009 letter that the Veteran's medical records in SSA's possession have been destroyed. Otherwise, the Veteran has been afforded ample opportunity to submit evidence in support of his claim or notify the Board of any additional relevant evidence that is not presently associated with his claims file. In this regard, pursuant to the Board's remand of August 2012, VA attempted in good faith to obtain all of the Veteran's relevant post-service medical records from treatment sources that he had identified. The Board notes that the Veteran has stated at his May 2012 hearing that no medical records of his treatment prior to 1985 were available as his medical caregivers have since retired or died and their records destroyed. The Board finds that the RO/AMC has at least substantially complied with the Board's remand instructions of August 2012. Therefore, a remand for further corrective action in this regard is not warranted. Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the Decision Review Officer or Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). During their respective May 2011 DRO hearing and May 2012 Board hearing, the DRO and the undersigned Veterans Law Judge's questions and the Veteran's oral testimonies focused on the elements necessary to substantiate, inter alia, the Veteran's claim for service connection for a bilateral knee disability. The DRO and the Veterans Law Judge, furthermore, have clarified the issue on appeal. Thus, the Board finds that the DRO and Veterans Law Judge presiding over their respective May 2011 and May 2012 hearings have substantially fulfilled their obligations as required under 38 C.F.R. § 3.103(c)(2). Bryant, supra. In June 2013, the Veteran was provided with a VA examination to address his bilateral knee disability claim, during which the examining VA clinician had opportunity to review the Veteran's pertinent medical history, perform an examination, consider the Veteran's lay history, and provide a nexus opinion regarding the onset of his chronic bilateral knee disability in the context of this clinical and lay history. Therefore, the Board finds this examination to be adequate for purposes of adjudicating the claim decided herein. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007; Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran's service treatment records are unavailable for consideration. A VA formal finding memorandum dated in September 2009 establishes as a factual matter that no service treatment records or reports generated by the Veteran's service department for the Surgeon General's Office relating to his period of active duty were obtainable, despite exhaustive efforts by VA to locate them, including providing the Veteran with an NA Form 13055 and offering him the opportunity to provide VA with copies of any service records in his possession or otherwise help VA search for any records that may exist. The Veteran's unavailable service records are all presumed to have been destroyed in the 1973 fire at the National Personnel Records Center (NPRC) in St. Louis, Missouri. As the Veteran's service treatment records are deemed to have been lost, the Board has a heightened obligation to consider carefully the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The Board is ultimately satisfied that the evidence is sufficiently developed for appellate adjudication and that no further development is necessary with respect to the claim for VA compensation for a chronic back disability. The Veteran is represented in the current appeal and has received ample assistance from VA in the development of his claim and, as previously noted, has had opportunity to submit additional evidence in support of the claim up to the time when the case was received by the Board in June 2013. Based on the foregoing, the Board finds that VA fulfilled its VCAA duties to notify and to assist the Veteran in the evidentiary development of his service connection claim decided herein, and thus no additional assistance or notification is required. The Veteran has suffered no prejudice that would warrant a remand, and his procedural rights have not been abridged. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board will therefore proceed with the adjudication of the bilateral knee disability claim on appeal. The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant). Service connection involves many factors, but basically means that the facts, shown by the evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if pre-existing such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. 38 C.F.R. § 3.303(a). With chronic disability or disease shown as such in service (or within the presumptive period under 38 C.F.R. § 3.307 for arthritis/degenerative joint disease of the knee) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any complaints of knee pain or treatment for a knee injury during service will permit service connection for a chronic knee disability, first shown as a clear-cut clinical entity, at some later date. 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established, there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may be granted for any disease diagnosed after discharge from active duty when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102 (2012). As previously stated, because the Veteran's service medical records are missing and presumed destroyed, VA has a heightened obligation to consider carefully the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The Veteran's DD-214 Form shows that he served in the United States Army during the Korean War Era as a light vehicle driver. Although foreign service was indicated, the DD-214 does not indicate that he served in combat or was otherwise serving under combat conditions. As relevant, in written statements and at the hearings of record, the Veteran and his spouse testified that the Veteran sustained a bilateral knee injury during active service after he tripped over a foot locker and fell onto both knees against a hard floor, causing his left knee to "split open." The Veteran reported that he was treated at the infirmary and was off duty for several weeks before eventually returning to full duty. He also states that he strained his knees during service as a light vehicle operator, having to constantly climb in and out of jeeps. He claims that he has had continuity of bilateral knee symptoms ever since this alleged injury, which continued after his separation from service in 1956 and gradually worsened over time. He reported that his post-service career was as a factory employee at American Seating, but that he was in an office and did not spend much time on his feet. He stated that he was prescribed pain medication for his knee symptoms but that his knees eventually became so bothersome that he sought treatment for them in 1985 from his private physician. He was diagnosed with bilateral knee arthritis that progressively worsened, eventually necessitating treatment with surgery and placement of a prosthetic joint in each knee. The Veteran's service medical records are unavailable and presumed destroyed. Private medical records include a general medical examination dated in 1969 that shows that his lower extremities were normal. Private medical records dated in June 1985 show that the Veteran reported a history of right knee pain of insidious onset three years earlier. According to this report, a private physician who treated the Veteran earlier in December 1984 attributed the right knee pain to the Veteran's occupation at a factory as his work involved prolonged standing on hard cement floors. Arthroscopy in 1985 revealed what was characterized as an old anterior cruciate ligament (ACL) injury of his right knee of unknown etiology. Examination of his left knee in June 1985 was negative except for complaints of discomfort along the medial joint line, which the treating physician believed was typical of early medial joint space arthritis. By April 1993, the Veteran was diagnosed as having severe bilateral osteoarthritis of his knees. SSA decision of August 1993 reflects that he was deemed to have been disabled for SSA purposes as of January 1992 due to bilateral osteoarthritis of his knees. In 2000, the Veteran underwent bilateral TKA. In December 2011, the Veteran's right knee prosthesis wore out, necessitating surgical revision of the old TKA and replacement with a new prosthetic. In his claim that was received by VA in July 2008, the Veteran reported that he was employed at American Seating (a factory) for a period of almost 40 years, from August 1953 to January 1992, and that he was also employed during this period as a supermarket grocery clerk from October 1965 to 1984. In June 2013, the Veteran was examined by a VA clinician, who had opportunity to review the Veteran's pertinent medical history contained in his claims file and examine his bilateral knee disability in detail. The examiner noted the Veteran's age and his allegation of bilateral knee injury in service in 1955, although no objective contemporaneous medical evidence was available to substantiate this history. Following examination and review of the record, the Veteran was diagnosed with bilateral osteoarthritis of his knees and was noted to be status-post bilateral TKA. The examining clinician presented a nexus opinion that it was less likely than not (less than 50 percent probability) that the Veteran's chronic bilateral osteoarthritis of his knees was incurred in active duty or caused by his claimed in-service injury. The stated rationale, in pertinent part, was as follows: There is no substantive evidence to support [the conclusion that]. . . the veteran's [reported history of] injury to his knees while in the military led to the development of osteoarthritis that he [now] suffers [from] today. Regardless of any appreciable injury to his knees that may have occurred while in the military ([and] I believe the veteran is a good historian), there is no evidence of a chronicity of a knee [disability] from 1955 (reported date of injury) and 1985 when more definitive treatment was done for [his] complaint of knee pain. There is a report of questionable "old ACL injury" seen on arthroscope in 1985 but it is an unknown etiology. None of the clinical notes submitted by the veteran mention that his knee [disabilities] may be related to injury while in the military [approximately 30] years previous. [The Veteran reported that he] worked for almost 40 years in a factory environment where he admittedly worked for many hours standing and walking. This activity was compounded by his working part-time for [a] grocery [store] stocking shelves for 25 years which required standing, squatting and kneeling. There is a statement on a clinical record from [a private physician] addressing the trouble in [the Veteran's] right knee that started in 1982 "from being on floor alot [sic]; standing on concrete floors." The veteran's bilateral knee conditions are more likely the result of aging combined with the repetitive stressors to his knees from his [post-service] work environments. In view of the foregoing discussion of the pertinent evidence, the Board concludes that the weight of the objective clinical evidence is against the Veteran's claim of entitlement to service connection for a chronic bilateral knee disability on a direct or presumptive basis. Although there is no documentation of treatment for a knee injury or knee complaints in service, the Board will concede as true that the Veteran sustained a bilateral injury to his knees during active duty as he described above, based on the VA clinician's opinion that the Veteran is a good medical historian. However, there is nevertheless no objective clinical documentation of treatment for knee symptoms for nearly three decades afterwards, not until around 1984 - 1985; there is clear clinical evidence of supervening repetitive stress injury to his knees associated with his post-service career as an employee at a factory and at a supermarket, where he spent much of his 40 years of employment on his feet on a hard concrete surface or was engaged in repetitive standing, stooping, and kneeling while stocking grocery store shelves; and there is no objective nexus opinion linking his current bilateral knee diagnosis to military service. The Board finds that the account of the Veteran and his spouse regarding continuity of his knee symptoms after service is contradicted by the objective clinical record, which shows no such history; the historical account of the Veteran and his spouse in this regard is therefore deemed not credible for purposes of establishing a link between the Veteran's current knee diagnoses and military service. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Specifically, the private treatment records from 1985 do not indicate onset of the Veteran's knee pain any earlier than three years prior (i.e., 1982), according to his then-reported history, and these private medical records specifically attribute his knee symptoms to his prolonged standing on cement floors at his post-service place of employment. Although the Veteran testified in May 2012 that he only worked in office-like conditions at his factory, his recorded statements to his treating physicians in 1985 are deemed to be more credible regarding time of onset of his knee symptoms and the physical conditions of his employment as they were presented at the time in the context of his desire for obtaining medical treatment and were not motivated by a desire for VA compensation through linking his knee complaints with active service. Although lay persons are competent to provide opinions on some medical issues, the specific matter here (degenerative arthritic disease of the knees) falls outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The orthopedic disability at issue is not the type of disorder that is readily amenable to mere lay diagnosis or probative comment regarding its etiology, as the evidence shows they are verifiable only through medical imaging and clinical examination by an orthopedic specialist to assess and diagnose them properly. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); & Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Although the Board readily acknowledges that Veteran is competent to report symptoms of his perceived knee pain, and the Veteran's spouse is competent to report the Veteran's observable outward displays of knee symptoms, there is no indication that they are competent to etiologically link any such symptoms that the Veteran may have had in service to his current knee diagnoses, which the objective clinical record does not demonstrate to have had its onset any earlier than 1982, over 25 years after his discharge from active duty in 1956. Neither the Veteran nor his spouse have been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that they received any special training or acquired any medical expertise in evaluating orthopedic disabilities. King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). Thus, this lay evidence does not constitute competent medical evidence and lacks probative value. In view of the foregoing discussion, the Board must deny the Veteran's appeal for service connection for a chronic bilateral knee disability as the preponderance of the evidence is against allowing his claim. Because the evidence in this case is not approximately balanced with respect to the merits of this claim, the benefit-of-the-doubt doctrine is not for application, notwithstanding VA's heightened obligation to consider it carefully in the absence of the Veteran's service records. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); O'Hare v. Derwinski, 1 Vet. App. 365 (1991). ORDER Service connection for a chronic bilateral knee disability, including arthritis and status-post bilateral TKA, is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs