Citation Nr: 1321664 Decision Date: 07/05/13 Archive Date: 07/12/13 DOCKET NO. 11-19 817 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for left knee disability. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The Veteran had active service from November 1944 to July 1946 and from January 1951 to April 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the Veteran's petition to reopen his claim for service connection for a left knee disability. In a December 2012 decision, the Board granted reopening of the Veteran's claim and remanded it for further development. 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). FINDING OF FACT A chronic left knee disability was not shown to have become manifest in service and the Veteran's current left knee disability is not shown to be related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for left knee disability are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1). An August 2010 letter explained the evidence necessary to substantiate the claims and VA and the Veteran's responsibilities. The letter also informed the Veteran of his and VA's respective duties for obtaining evidence. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, the letter explained how a disability rating is determined and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). This letter was provided to the Veteran prior to the initial adjudication of his claim, pursuant to Pelegrini v. Principi, 18 Vet. App. 112 (2004). Accordingly, no further notice is required. With regard to the duty to assist, the claims file contains the service treatment records, VA treatment records, the reports of a May 2013 VA examination and the assertions of the Veteran and his representative. The Board has found nothing to suggest that there is any outstanding available evidence with respect to the Veteran's claim. No further action is required to comply with the duty to notify and assist the Veteran in developing the facts pertinent to his claim. II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. Layno v. Brown, 6 Vet. App. 465 (1994). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, a medical opinion was not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In certain instances, 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, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran's service treatment records do not show any diagnosis or treatment of left knee problems. At his July 1946 separation examination from the first period of service, the extremities were found to be normal aside from pes planus. Similarly, at a November 1950 examination, prior to entrance into his second period of service, no significant abnormalities of the spine and extremities were found. In a July 1947 claim, the Veteran reported that he injured his left knee and leg in Okinawa in May 1946 and that he was seen in sick bay at that time. In an August 1948 letter, the Veteran's mother indicated that the Veteran's health had been bad ever since he had returned home after service. She noted that a doctor in Okinawa had told him that there was an extra growth on the bone of his leg but that if an operation was done, the Veteran would never be able to walk again. She reported that oftentimes he suffered terribly with the leg. In a March 2006 letter, the Veteran indicated that he hurt his knee while in Okinawa during his first tour of duty. He reported that he was told that someday the knee might require surgery. In a May 2010 statement, the Veteran indicated that the doctor in Okinawa during service told him that his knee needed an operation but did not perform it because it could have made the knee worse. The Veteran reported that he had pain in the knee at times and sometimes the knee would give way. In an August 2010 statement, the Veteran reported that he injured his knee during service while working in the laundry. He went to sick bay and the examining physician took an X-ray and said that some day, he would have trouble with the knee or that he would not be able to walk or get around. The Veteran reported that the knee still gave him trouble. He indicated that he had to be careful with his knee as it would pop out at times and he experienced pain and stiffness. In his September 2010 notice of disagreement, the Veteran indicated that he had been seeing a "Dr. Fells" just for pain medication for his knee. In a February 2013 letter, the Veteran's wife reported that the Veteran's knee buckled sometimes unexpectedly and she was concerned that he could fall as a result. She noted that the Veteran generally did not like going to the hospital or to a doctor's office and she thought that this is why he had not complained earlier about the problem with his left knee. Also, he had been told that surgery could make the problem worse. At a May 2013 VA examination, the Veteran again reported his leg injury during service. He indicated that he was moving a laundry basket from the washer to the dryer and twisted his left knee. He then sat on the ground, feeling pain in his kneecap. He got up after about 15 minutes and went for medical attention. An X-ray was taken and he was told that he had a ligament problem that made the bone move. He was placed on restrictions for bending for two days and then was released. The Veteran had had no other medical care since that time. The examiner noted that the Veteran's separation examination showed no profiles and that the Veteran did not have any symptoms. The examiner found that the Veteran's history reflected a probable patellar subluxation rather than a dislocation. Range of motion testing showed 135 degrees flexion and 0 degrees extension without evidence of painful motion. Stability testing of the knee was normal. It was noted that the Veteran regularly used a cane. The examiner noted that the Veteran's gait was normal without the cane. X-rays of the knee showed degenerative arthritis. The examiner noted that the Veteran's history regarding the mechanism of the in-service injury and the treatment he received strongly suggested a mild patellar subluxation. The examiner's current examination showed minimal findings of patellar crepitance and no instability. The examiner noted that the Veteran's X-ray was outstanding for his age. There was no history of reinjury during service after the original accident in 1945 and the exit examination in 1952 was normal. The Veteran had then not received any medical care for the knee post service. The examiner found that the left knee disability was less likely than not incurred in or caused by the Veteran's in-service injury. The examiner commented that the Veteran reported two days of alternative work after the injury with no additional treatment profiles or symptoms on exit examination in 1952. The Veteran performed work post-injury and discharge with no restrictions including as foreman in a shoe factory (26 years), farm work (3 years) and as a mechanic (5 years). The left knee patella subluxation was an isolated incident and resolved. The Veteran's osteoarthritis was not related to his in-service left knee injury and X-ray findings showed that this condition was normal for a person of the Veteran's advanced age and activity level. The Board finds that the Veteran's report of injuring his knee during service is credible. Thus, a left knee injury during service has been established. The Veteran has also been diagnosed with a current left knee disability, arthritis. This arthritis was not shown during service or during the first post-service year, however. Thus, presumptive service connection for such arthritis is not warranted. 38 C.F.R. § 3.307, 3.309. Also, a nexus between the injury in service and the current left knee disability is not established. In this regard, the May 2013 VA examiner, after reviewing the claims file and examining the Veteran, found that the left knee disability was less likely than not incurred in or caused by the Veteran's in-service injury. The examiner commented that the Veteran related that he had only to do two days of alternative work after the injury; that he was then not shown to have been put on any additional treatment profiles; that he did not exhibit any symptoms on exit examination in 1952; and that he performed work post-injury and discharge with no restrictions including as foreman in a shoe factory (26 years), farm work (3 years) and as a mechanic (5 years). Thus, overall, the examiner found that left knee patella subluxation was an isolated incident and resolved. Additionally, the examiner found that the Veteran's current osteoarthritis was not related to his in-service left knee injury, noting that the X-ray findings showed that the Veteran had a normal level of arthritis for someone of his advanced age and activity level. The Veteran essentially alleges that he has continued to have problems with his left knee since his injury in service and is competent to assert such continuity of symptomatology. Additionally, the assertion amounts to some evidence of the presence of a medical nexus. However, given that the May 2013 VA examiner specifically analyzed the mechanism of the Veteran's initial injury, along with the specific, current medical state of the Veteran's left knee and then determined that the two were less likely than not related; and given that there is no other medical opinion of record indicating a relationship between the left knee injury in service and the current left knee disability, the weight of the evidence is against a finding of a nexus between the two. The Board is sympathetic to the Veteran having more and more difficulty with his left knee. However, the Board is required by the controlling regulations to make a decision based on the evidence of record. In this case, given the clear findings of the May 2013 VA examiner, the preponderance of the evidence is against the claim and it must be denied. ORDER Service connection for left knee disability is denied. ____________________________________________ KELLI KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs