Citation Nr: 1321944 Decision Date: 07/09/13 Archive Date: 07/18/13 DOCKET NO. 09-44 619 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for a bilateral knee disorder. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Osegueda, Associate Counsel INTRODUCTION The Veteran had active service from April 1964 to June 1965. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In May 2012, the Veteran testified at a hearing held at the RO before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. The Board remanded the case for further development in February 2013. That development was completed, and the case has since been returned to the Board for appellate review. In addition to the paper claims file, there is a Virtual VA paperless file associated with the Veteran's case. A review of the documents in the paperless claims file reveals that they are either duplicative of the evidence in the paper claims file or irrelevant to the issue on appeal. FINDING OF FACT A bilateral knee disorder did not manifest during service or within one year thereafter and is not causally or etiologically related to service. CONCLUSION OF LAW A bilateral knee disorder was not incurred in active service, nor may arthritis be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it 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. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, the RO provided the Veteran with a notification letter in February 2010, prior to the initial decision on the claim in March 2010. Therefore, the timing requirement of the notice as set forth in Pelegrini has been met and to decide the appeal would not be prejudicial to the claimant. Moreover, the requirements with respect to the content of the notice were met in this case. The letter informed the Veteran of the information and evidence needed to substantiate his claim for service connection and notified him of the division of responsibilities in obtaining such evidence. The letter also explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess, 19 Vet. App. at 490-491. The Veteran was also informed of the types of evidence that would help the RO make its decision, including the dates of medical treatment during service, lay statements from people who witnessed his disability symptoms on active duty, records and statements from service medical personnel, employment physical examinations, information about ongoing treatment since service, pharmacy prescription records, and insurance examination reports. The duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records and all identified and available post-service medical records are in the claims file and were reviewed by both the RO and the Board in connection with the claim. The Veteran has not identified any other outstanding records that are pertinent to the issues currently on appeal. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In February 2013, the Board remanded the issue to the RO to afford the Veteran a medical examination containing sufficient detail to decide the claim. Specifically, the Board found that additional clarification was necessary to determine the nature and etiology of any bilateral knee disorders that may be present. In accordance with the remand directives, the Veteran was provided another VA examination in April 2013. There has been no allegation that the examination was inadequate. Moreover, the Board finds that the April 2013 VA medical opinion obtained in this case is adequate, as it was predicated on a full reading of the available service treatment records as well as the post-service medical records contained in the Veteran's claims file. It considered all of the pertinent evidence of record and provides a complete rationale for the opinions stated, relying on and citing to the records reviewed and the Veteran's statements. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). Additionally, as previously noted, the Veteran was provided the opportunity to testify at a hearing before the undersigned Veterans Law Judge in May 2012. The undersigned Veterans Law Judge clearly set forth the issue to be discussed, and the hearing focused on the elements necessary to substantiate the claim. Questions were asked regarding the Veteran's injuries and symptoms in service and the progression of the disorder since service. The undersigned Veterans Law Judge also inquired as to whether the Veteran was receiving any current treatment in order to determine whether there was any outstanding evidence and asked whether the Veteran had spoken to any doctors about the cause of his current disorder in order to determine whether there may be a medical opinion that could be obtained from a treatment provider. The Veteran indicated that he was not receiving current treatment and that he had not talked to a physician about the etiology of the disorder, which is part of the reason the case was remanded to obtain a VA medical opinion. For these reasons, the Board finds that VA fully complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). VA has further assisted the Veteran and his representative throughout the course of this appeal by providing them with a Statement of the Case (SOC) that informed them of the laws and regulations relevant to the Veteran's claim. The Board concludes that the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claim, and he did, in fact, participate. Washington v. Nicolson, 21 Vet. App. 191 (2007). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. All relevant evidence necessary for an equitable disposition of the Veteran's appeal of this issue has been obtained, and the case is ready for appellate review. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012). Law and Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 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). Service connection for certain diseases, such as arthritis, may be also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In order to establish entitlement to service connection for a disability, the Veteran must show: (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, 1166-67 (Fed. Cir. 2004). In determining whether service connection is warranted for a disability, 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 the claim, in which case the claim is denied. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for a bilateral knee disorder. The Veteran contends that his bilateral knee disorder manifested in service while he wrestled for the Army in 1965. The Veteran's service treatment records show that he sustained a low back strain due to a wrestling injury. However, there were no notations pertaining to any knee injuries. Moreover, in a June 1965 medical evaluation board examination, the examining medical officer noted that there was a normal clinical evaluation of the Veteran's lower extremities. In an associated report of medical history, the Veteran also denied having, or having a history of, arthritis or a "trick" or locked knee. He did report a bone, joint, or other deformity, but the examining physician noted that the Veteran had "multiple congenital anomalies" of the lumbar spine. There were no indications that the Veteran had any knee disorders. In December 2008 VA treatment notes, the Veteran reported that his knees were increasingly bothering him over the last six months. He indicated that his knees were buckling and that he had some increased pain. The diagnosis was knee pain, and the examiner noted that a provisional diagnosis of "possible osteoarthritis." Following complaints of bilateral knee pain and reports of the joints "giving out," the Veteran had a VA x-ray study of his bilateral knees in October 2009. The interpreting radiologist noted a spur in the intercondylar notch and a small spur in the lateral tibial plateau of the right knee. The left knee was unremarkable. In a February 2010 statement, the Veteran reported that his knees ached and gave out on him without warning. He indicated that he believed his knee disorder was caused by his training as an Army wrestler. In June 2010 and February 2012 statements, the Veteran stated that his bone spurs, aching knees, and instability were caused by conditioning for wrestling. Specifically, he attributed his current knee disorders to performing "duck walks" with weights during training. During the May 2012 hearing, the Veteran testified that, while he wrestled for the Army in 1965, he was required to perform "duck walks" as part of his training. He reported that he felt pain in his knees as a result of the exercise. He also noted that the pain subsided after he stopped wrestling; however, recently, he felt a similar ache in his knees and indicated that his knees had begun giving out on him. During the April 2013 VA examination, the Veteran reported that he first had bilateral knee pain in approximately 1964. He indicated that he was a wrestler and stated that his knees bothered him when he worked out. He also admitted that that his knees were "fine" after he stopped wrestling until approximately two years ago. He reported that he began having left knee pain and that it gave out on him. He stated he developed right knee pain one year later. The examiner also noted that the Veteran was a body builder for years following his military service. He currently worked part-time as a personal trainer and volunteered leading exercise classes at a VA community living center. An examination of the knees revealed less movement than normal, and the diagnosis was a bilateral knee strain. The April 2013 VA examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. She noted that there was no documented evidence in the claims file that the Veteran had any knee problems in service. She also observed that the Veteran reported that he had bilateral knee pain while performing "duck walk" exercises in service, but indicated that the pain subsided after he stopped wrestling. That evidence led her to conclude that any knee issues he had in service had resolved. She further noted that the Veteran reported that his knee pain began two years ago, or 46 years after his separation from service. She stated that x-rays showed some right knee abnormality; however, the changes were age appropriate, and she was unable to determine whether they were caused by events in service 46 years earlier. On review, the Board concludes that a bilateral knee disorder did not manifest in service. As previously noted, the Veteran's service treatment records are entirely negative for any complaints, treatment, or diagnosis of a knee disorder. While the Veteran is competent to report observable symptomatology in service, such as knee pain, he has actually admitted that his knee problems subsided once he stopped wrestling. In fact, he has reported that his current knee pain only began in the last several years. A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Thus, the evidence of record, including the Veteran's statements, show that a bilateral knee disorder did not manifest in service or for many decades thereafter. There is no assertion of continuity of symptomatology. Moreover, there is no evidence establishing that the Veteran developed arthritis in either knee that to a compensable degree within one year following discharge. Therefore, service connection on a presumptive basis as a chronic disease is not warranted. In addition to the lack of evidence showing that a bilateral knee disorder manifested during active duty service or within close proximity thereto, the evidence of record does not link any current diagnosis to the Veteran's military service. The Veteran has reported having bilateral knee pain in service that later subsided. While lay persons are generally not competent to offer evidence that requires medical knowledge, they may provide competent testimony as to visible symptoms and manifestations of a disorder. Jones v. Brown, 7 Vet. App. 134, 137 (1994); Layno v. Brown, 6 Vet. App. 465, 469 (1994); Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006). A veteran can attest to factual matters of which he had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Moreover, the Veteran has a current diagnosis of bilateral knee strain. Thus, the remaining question is whether the Veteran's current disorder is related to his injuries and symptoms in service. The Board finds the Aprils 2013 VA examiner's opinion to be highly probative, and it clearly weighs against the Veteran's claim. This opinion, which determined that the Veteran's current bilateral knee strain was not related to his military service, was based on a review of the Veteran's reported history, information in the claims folder, and the results of objective testing, and it was supported by a thorough and adequate rationale. There is no medical opinion showing otherwise. Based on the foregoing, the Board finds that the totality of the evidence, including the separation examination and the VA examination reports, outweigh the Veteran's belief that his bilateral knee strain is related to service. The preponderance of the evidence is against the claim, and the doctrine of reasonable doubt is not for application. 38 C.F.R. § 3.102. Therefore, the Board concludes that service connection for a bilateral knee disorder is not warranted. ORDER Service connection for a bilateral knee disorder is denied. ____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs