Citation Nr: 1322510 Decision Date: 07/15/13 Archive Date: 07/24/13 DOCKET NO. 09-07 430 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran served on active duty from February 1984 to August 1991. This matter comes before the Board of Veterans' Appeals (Board) from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. In October 2012, the Board reopened a claim of service connection for right and left knee disabilities and remanded for additional development and due process concerns. After the development was complete, service connection was awarded for a right knee disability in a March 2013 rating decision. The denial of service connection for a left knee disability was continued, and the matter has returned to the Board. A hearing before the undersigned Veterans Law Judge was held at the RO in May 2012. The hearing transcript has been associated with the claims file. FINDING OF FACT A left knee disability did not begin during service and is not causally related to service. CONCLUSION OF LAW The criteria for service connection of a left knee disability have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. 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). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. An April 1984 service medical record indicates that the Veteran was seen for left knee pain for three days. On physical examination, the left knee was stable without swelling or point tenderness. The diagnosis was left knee inflammation. Subsequent records reflect no additional complaints or findings pertaining to the left knee, though a May 1988 treatment record (for the right knee) indicates that there was slight tightness with a rectus femoris stretch. An undated document associated with the claims file indicates by the Veteran's signature and a checked box that the veteran waived his separation medical examination. The Veteran has since contended that he was pressured into not undergoing a separation examination. In a May 2000 VA Form 9, he wrote that he was denied a physical because physicals were scheduled a year ahead of time and he was one of hundreds of people clearing at that time (in 1991) and was just another number getting a discharge. A July 1997 VA treatment record reflects the Veteran's history of right knee pain. The record reflects no complaint or finding pertaining to the left knee. A September 1997 VA Persian Gulf Examination report reflects the Veteran's history of bilateral knee pain since 1989. He indicated that the knees hurt mostly with climbing stairs or bending down. He also reported noise with movement of the knees. After examination, he was assessed with musculoskeletal pain involving the knee joint. Subsequent X-ray images of the left knee were normal: they showed no acute bony abnormality, normal alignment, and no definite degenerative changes. An October 1997 VA treatment record reflects the Veteran's history of "chronic intermittent knee pain." The provisional diagnosis was rule-out chondromalacia. After examination, the Veteran was assessed with patellofemoral syndrome. A July 1999 VA orthopedic examination record reflects the Veteran's history of bilateral knee pain, worse since military service. The Veteran explained that the knee pain was chronic since 1988. The examiner noted that the Veteran was a poor historian and was unable to give a lot of details regarding his problems or their duration and onset. X-rays of both knees were noted to be normal. The diagnosis was bilateral knee tendonitis. An August 1999 treadmill test was stopped secondary to bilateral knee pain. The Veteran was unable to ambulate further. In November 2003, the VA examiner who conducted the July 1999 VA orthopedic examination provided an addendum to the July 1999 examination. The examiner opined that the evidence was not sufficient to render an opinion for the relationship of the Veteran's left knee symptoms to service because the examiner was unable to find the medical record documenting left knee symptoms in the claims file. Thus, in the examiner's view, the evidence was insufficient to render an opinion regarding the left knee without speculation. The examiner further noted that his previous examination was documented nearly 5 years ago, and that the Veteran's current knee condition (as of November 2003) was not known to him. A December 2003 VA orthopedic examination record indicates that the Veteran looked a little bowlegged, with slight loss of valgus at both knees as he stood. There was no effusion, swelling, effusion, or tenderness, and the medial and lateral collateral ligaments were intact clinically. X-rays as interpreted by the examining orthopedist showed some loss of normal valgus of the knee. There was just a little lateral shift of the tibia relative to the femur at the knee joint with a little sharpening of the lateral tibial spine. There was no particular loss of joint space in either knee joint. The examiner's diagnosis was mild early osteoarthritic changes. The examiner noted that the Veteran had minimal treatment for his knees while he was in the service and did not see doctors post-service for his knees until eight years after his discharge. The examiner further noted that the Veteran often played basketball and had a number of minor injuries while he was on active duty, but only the one injury to his left thigh in a basketball game. The examiner determined that the early arthritic changes in the knees were probably due to age. The examiner found that there was insufficient evidence to consider that the knee problems were related to the Veteran's service history and that it was less than likely that the knee conditions were related to his service activities. The reviewing VA radiologist found the X-rays to be unremarkable, with no substantial degenerative joint disease. A May 2005 emergency treatment record reflects the Veteran's history of knee pain. After examination, the Veteran was assessed with patellofemoral syndrome. An October 2006 VA treatment record reflects the Veteran's history of bilateral knee pain. The record notes that July 2006 X-ray images showed no abnormality. After examination, the Veteran was assessed with bilateral knee pain of undetermined origin. A July 2006 VA X-ray report indicates that the knee was negative for abnormality. A May 2007 VA treatment record reflects the Veteran's history of knee pain and "giving out at times." There was pain with slight manipulation and valgus/varus. The Veteran was provided a provisional diagnosis of rule out internal derangement of the knee. A subsequent May 2007 VA orthopedic consultation report reflects the Veteran's history of knee pain which began in service without specific injury or trauma. He also reported instability. X-ray images were negative for degenerative joint disease. The Veteran was assessed with patellofemoral syndrome. A May 2007 VA X-ray report indicates that mild degenerative changes were present. A May 2012 Board hearing transcript reflects the Veteran's testimony that he had left knee pain during and since service and that he did not receive treatment immediately after service due to a lack of healthcare coverage. He also testified that his knees received "wear and tear" and trauma during service from playing basketball and doing physical training and that his knees were "pretty bad" and "pretty swollen" when he separated from service in 1991. A November 2012 VA examination record reflects diagnoses of degenerative joint disease and patellofemoral syndrome. After examination and review of the record, the examiner determined that it was less likely than not that the left knee disability was incurred in or caused by service. The examiner explained that the Veteran's height (noted to be six feet six inches) predisposed his knees to premature degenerative changes absent any injury. The examiner added that there are many possible causes of patellofemoral pain syndrome, which was defined as retropatellar or peripatellar pain and which was "extremely common," and degenerative arthritis which are not related to specific injuries. The examiner explained that patellofemoral pain syndrome may be caused by overuse, injury, excess weight, a patellar tracking disorder, changes under the kneecap, prepatellar bursitis, patellofemoral arthrosis, patellar subluxation and dislocation, knee ligamentous and meniscal pathology and soft tissue and bony tumors. The examiner noted that the Veteran complained of left knee pain in April 1984 but found it was related to an acute but a transient condition based on the void of further written medical complaints of left knee condition, treatment, complaints of, or diagnoses during active service. Based on the written medical evidence and evaluation, the examiner concluded that the in-service inflammation was not severe enough to result the development of degenerative left knee changes. The examiner noted that more than five years passed between initial injury and the Veteran's complaints of further left knee symptoms and that based on history, present physical examination, and recent radiographic findings; it was not likely that the original injury in the military is casually related in any way to his current left knee condition and there is no written medical evidence of aggravation secondary to the right knee condition. Service connection is not warranted for a left knee disability, diagnosed as patellofemoral syndrome and arthritis, because the probative evidence does not suggest that a left knee disability began in service or is causally related to service. The Board acknowledges that the evidence, namely the April 1984 service treatment record, indicate that the Veteran reported knee pain during service; that the Veteran has reported pain during and since service; and that patellofemoral syndrome, by definition, results in pain. Although the Veteran is competent to report his symptomatic history, the Board finds the histories of chronic pain have little to no probative value in establishing the existence of a chronic disorder during service. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing competency from weight and credibility and noting that only competency involves a question of admissibility); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify."). To the extent the histories are interpreted as histories of constant pain, they are not credible in light of the evidence of a lapse in symptoms: the service medical records only reflect one history of left knee pain, though the Veteran received subsequent orthopedic treatment, including for the right knee, feet, and ankles; the Veteran failed to report a history of left knee pain while receiving treatment for the right knee in July 1997; and the Veteran reported intermittent knee pain in October 1997. To the extent the histories are interpreted as histories of intermittent pain, they are credible, and thus probative. The Veteran is not competent to diagnose a chronic knee disorder manifested by the intermittent pain as opposed to a distinct episodes of knee pain or even multiple episodes of acute disorder manifested by knee pain however, and based on the absence of a diagnosis of a disorder until five years after separation from service, and the VA examiner's determination that the Veteran did not have a chronic left knee disability during service, the Board finds the preponderance of the probative evidence does not suggest the existence of patellofemoral syndrome or arthritis during service. See 38 C.F.R. § 3.159(a)(2); Layno v. Brown, 6 Vet. App. 465, 471 (1994). Additionally, the record does not contain any competent evidence linking the left knee disorder to service, though it does include the VA examiners' opinions that the left knee disability did not onset in service and is not related to service. In particular, the Board finds the November 2012 VA examiner's opinion is highly probative as the examiner provided a detailed rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (opinion's probative value determined by whether it is supported by a detailed rationale/explanation). . The Board acknowledges that the Veteran believes his left knee disability is due to service. There are no medical findings or studies of record suggestive of such a link, however, and the evidence does not suggest the Veteran possesses the specialized knowledge necessary to render him competent to make that determination See Davidson, 581 F.3d t 1316. Thus, the Veteran's statements are not probative evidence of a link between the left knee disability and service. In sum, the Board finds a chronic knee disorder did not onset in service and is not causally related to service. As such, service connection is not warranted, and the claim is denied. Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant 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). The 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 the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 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 the elements of the claim as reasonably contemplated by the application. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The Board finds that the VCAA duty to notify was satisfied by a letter sent to the Veteran in December 2009 with regard to the claim for service connection for a left knee disability. The letter addressed all of the notice elements and, although it was sent after the initial unfavorable decision by the AOJ in January 2008, the claim was readjudicated in a September 2011 Supplemental Statement of the Case. See Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (VA cured failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating claim and notifying claimant of such readjudication in the statement of the case). The duty to assist was also met in this case. The service treatment records are in the claims file. All pertinent VA and non-VA medical records, to include those associated with the receipt of disability benefits from the Social Security Administration, have been obtained and associated with the file. A VA examination with opinion with respect to the issue on appeal was obtained in November 2012. 38 C.F.R. § 3.159(c) (4). When VA undertakes to provide a VA examination and obtain a VA opinion, it must ensure that the examination and opinion are adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the examination and opinion obtained in this case are adequate. The examiner performed all necessary testing and reported all diagnoses and provided an opinion as to whether there is a relationship between the diagnosed conditions and service. The opinion is predicated on a full reading of the medical records in the Veteran's claims file. It considers all of the pertinent evidence of record and the statements of the appellant, and the examiner provided a complete rationale for the opinion stated, relying on and citing to the records reviewed. 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). ORDER Service connection for a left knee disability is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs