Citation Nr: 1321797 Decision Date: 07/08/13 Archive Date: 07/18/13 DOCKET NO. 09-30 000 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: Cathy L. Greiner, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from October 1966 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Huntington, West Virginia, Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2011, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. The Board remanded the issue on appeal for additional development in May 2011. FINDING OF FACT A right knee disability was not manifest during active service and is not shown to have developed as a result of an established event, injury, or disease during active service. CONCLUSION OF LAW A right knee disability was not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION 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). The Veteran was notified of the duties to assist and of the information and evidence necessary to substantiate his claim by correspondence dated in June 2008. The notice requirements pertinent to the issue addressed in this decision have been met and all identified and authorized records relevant to the matter have been requested or obtained. The available record includes service medical records, VA treatment and examination reports, private treatment records, and the Veteran's statements and testimony in support of his claim. The development requested on remand in May 2011 has been substantially completed. There is no evidence of any additional existing pertinent records. The Board finds that further attempts to obtain additional evidence would be futile. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. VA medical opinions obtained in this case are adequate as they are predicated on a substantial review of the record and medical findings and consider the Veteran's complaints and symptoms. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4) (2012). The available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA law and regulations and to adjudicate the claim would not cause any prejudice to the appellant. Service Connection Service connection may be granted for a disability resulting from injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). A veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2012). The presumption of soundness attaches only where there has been an induction medical examination and where a disability for which service connection is sought was not detected at the time of such examination. Only such conditions as are recorded in examination reports are noted and a history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of those conditions. Crowe v. Brown, 7 Vet. App. 238 (1994). A preexisting injury or disease will be considered to have been aggravated by active service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Aggravation may not be conceded where the disability underwent no increase in severity during service. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2012). Service connection can be granted for certain chronic diseases, including arthritis, if manifest to a degree of 10 percent or more within one year of separation from active service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology is required only where the condition noted during service is not shown to be chronic or when 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) (2012). Continuity of symptomatology applies to those conditions explicitly recognized as chronic. 38 C.F.R. § 3.309(a) (2012); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) 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 disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). A Veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). Medical evidence is required to demonstrate a relationship between a current disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person's observations would be competent. Clyburn v. West, 12 Vet. App. 296 (1999). Whether lay evidence is competent and sufficient in a particular case is an issue of fact and lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (sometimes 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) Lay evidence presented by a Veteran concerning his continuity of symptoms after service may be considered credible, and ultimately competent, regardless of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (2006). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). In determining whether evidence submitted by a veteran is credible VA may consider internal consistency, facial plausibility, and consistency with other evidence. Caluza v. Brown, 7 Vet. App. 498 (1995). VA can consider bias in lay evidence and conflicting statements of a veteran in weighing credibility. Buchanan v. Nicholson, 451 F.3d 1331 (2006). VA may favor one medical opinion over another, provided an adequate reason for doing so is provided. Owens v. Brown, 7 Vet. App. 429 (1995). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102 (2012). The pertinent evidence of record shows that the Veteran, in written statements and testimony before the Board, contends that his current right knee problems were caused or permanently worsened during his period of active service. While he acknowledges that he fractured his right knee playing baseball as an adolescent, he maintains that preexisting condition was not disabling on entry. The Veteran further asserts that his in-service right knee pain and related symptoms first manifested after he began performing Advanced Individual Training exercises, which caused his right knee joint to buckle. Additionally, he contends that, following his service discharge, his right knee symptoms worsened to the point that in the mid-1970s he required treatment from a private orthopedic physician who ran electrical current through his knee on a semi-weekly basis to relieve pain. He asserts that he has continued to experience right knee pain and instability and that he takes prescription medication to treat those symptoms. The Veteran's service medical records show that at his August 1966 pre-induction examination he reported a history of right knee weakness arising from a fractured patella that he had incurred when he was 12 years old. An examination revealed no clinical abnormalities of the lower extremities. He was found to be fit for active service. A January 1967 X-ray examination report noted he had a history of a right patella fracture three years earlier and that he complained of right knee giving way. The examiner noted the study revealed a normal right knee. A July 1968 report of medical history noted a history of a fracture right knee in 1963 with no complications. The Veteran denied any history of arthritis or rheumatism, bone, joint, or other deformity, lameness, or "trick" or locked knee. His July 1968 separation examination revealed no clinical abnormalities of the lower extremities. Private medical records dated in August 1984 show the Veteran sought private orthopedic treatment for episodic right knee pain without history of trauma. A one centimeter right leg shortness was noted. Range of motion revealed a few degrees of hyperextension on the right. Instability testing was normal and pivot shift testing was negative. An X-ray examination was negative. The examiner's diagnosis was inflammation and the examiner doubted there was a posterior horn tear. A December 1984 report noted the Veteran sustained an injury to his right knee when he arose from his couch and felt his knee jump out of place. He reported several subsequent episodes that were noted to be indicative of locking. A February 1985 right knee arthrogram revealed a torn medial meniscus for which the Veteran subsequently underwent arthroscopic meniscectomy. An arthroscopic operation in December 1987 include post-operative diagnoses of torn lateral meniscus and torn medial meniscal rim. The record thereafter shows that the Veteran was provided an August 2008 VA examination in which he reported a history of pre-service and in-service right knee problems. He stated that his current symptoms included chronic pain and giving way. Clinical examination revealed shortening of the right leg, relative to the left, but was negative for any other significant abnormalities. The examiner stated that, if the Veteran in fact had a right knee condition that preexisted military service, it was less likely than not that the preexisting condition had been aggravated in service. The examiner provided no rationale for that opinion and provided no comments as to the private orthopedic records documenting the Veteran's treatment and surgery for right knee pain and instability. VA examination in October 2012 included a diagnosis of right knee osteoarthritis. X-ray studies revealed no acute abnormalities. The examiner noted the claims file was reviewed and found that it was less likely than not that a right knee disability was incurred in or caused by the claimed in-service injury, event, or illness and that the claimed condition which clearly and unmistakably existed prior to service and was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. It was noted the Veteran had a history of a fractured right patella in 1959 and that his medical examination upon separation from service was normal for the right lower extremity. There were significant lower extremity abnormal findings including a positive bounce home test indicating he may have had a torn medial meniscus, a shortened right leg, left leg atrophy, and findings of mild arthritis symptoms in 2011. However, the examiner stated there was no evidence that any current ligamentous laxity and right knee arthritis, right leg shortness, and left leg atrophy were caused by any aspect of active service. The examiner noted that there was no evidence of medical treatment for a knee condition in the service treatment records, that his separation physical examination was negative, and that there was no record of treatment between his discharge in 1968 and his electric stimulation treatment in the 1970s. Based upon the evidence of record, the Board finds that the Veteran's right knee disability was not manifest during active service and is not shown to have developed as a result of an established event, injury, or disease during active service. A pre-existing right knee defect related to the Veteran's right patella fracture at approximately age thirteen is shown by uncontested and clear and unmistakable evidence. In fact, the Veteran's report of a history of a right patella fracture was noted upon enlistment examination. Although the service treatment records show he subsequently complained of the right knee giving way in January 1967, an X-ray examination at that time revealed a normal right knee and no medical treatment was provided during service. The October 2012 VA examiner found the Veteran's right knee condition clearly and unmistakably existed prior to service and clearly and unmistakably was not aggravated beyond its natural progression by an in-service injury, event, or illness. That opinion is found to be persuasive and based upon adequate rationale. It was specifically noted that the Veteran's separation physical examination was negative and that there was no evidence of right knee treatment for several years after service. The October 2012 VA examiner's opinions are shown to have been based upon a thorough examination, a thorough review of the evidence of record, and adequate consideration of the Veteran's statements. While the Veteran is competent to provide evidence as to observations and some medical matters, his statements are, at most, conclusory assertions of a nexus between his post-service manifestations of right knee disabilities and service. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (2006). As questions of as to the onset or aggravation of an orthopedic disorder and any relationship to an incident during service are complex etiological questions akin to the type of medical matters which laypersons are not competent to provide, his statements are insufficient to establish service connection. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (Board must determine whether the claimed disability is a type of disability for which a lay person is competent to provide etiology or nexus evidence). The Veteran is not found to be competent to state that his present right knee disabilities are the result of an aggravation of his pre-service right knee injury during active service. The Board finds the preponderance of the evidence in this case is against the claim for entitlement to service connection for a right knee disability. The persuasive medical opinions in this case show that the Veteran's present right knee disabilities did not develop as a result of active service, and that the preexisting right knee disability was not aggravated during service. Therefore, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a right knee disability is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs