Citation Nr: 1322647 Decision Date: 07/16/13 Archive Date: 07/24/13 DOCKET NO. 09-31 014 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Oakland, California THE ISSUE Entitlement to service connection for a left knee disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The Veteran served on active duty from July 1976 to June 1979. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from an October 2008 rating decision, by the Oakland, California, Regional Office (RO), which denied the Veteran's claim of entitlement to service connection for a left knee disorder. He perfected a timely appeal to that decision. In November 2012, the Board remanded the claim of service connection for a left knee disorder for further evidentiary development. The Appeals Management Center (AMC) completed the requested development and issued a supplemental statement of the case (SSOC) in March 2013. Review of the record reflects substantial compliance with the Board's Remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran's VA claims file has been returned to the Board for further appellate proceedings. On May 7, 2013, the Veteran appeared at the RO and testified at a videoconference hearing before the undersigned Veterans Law Judge, sitting in Washington, DC. A transcript of the hearing is of record. The Board observes that in his substantive appeal (VA Form 9), received in August 2009, the Veteran had requested a Travel Board hearing at the RO before a Veterans Law Judge. Subsequently, in August 2011, he selected a videoconference hearing before the Board. Such a hearing was scheduled for November 2011, but the Veteran failed to appear for that hearing. At that time, the Veteran did not provide a reason for his inability to report to his hearing; as such, the request for the hearing was deemed withdrawn. In November 2012, the Board issued a decision denying entitlement to service connection for a right shoulder disorder and remanding a claim of service connection for a left knee disorder. Unfortunately, later that month, the Veteran submitted a request for a new hearing; he reported that he moved and the notice to appear for the November 2011 videoconference hearing was late. The Board subsequently granted his request for a new hearing in May 2013. At the hearing, the Veteran raised the issue of entitlement to service connection for a right shoulder disorder. Since that issue was denied by the previous Board decision, it is referred to the AOJ for appropriate action. FINDING OF FACT A left knee disorder, including degenerative joint disease, was not present until many years after separation from service, and is not shown to be related to any incident during service. CONCLUSION OF LAW A left knee disorder was not incurred in or aggravated by service, and arthritis may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist. The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a statement of the case (SOC) or supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, VA satisfied its duty to notify by means of a letter dated in June 2008 from the RO to the Veteran which was issued prior to the RO decision in October 2008. An additional letter was issued in November 2012. Those letters informed the Veteran of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. Accordingly, the requirements the Court set out in Pelegrini have been satisfied. Regarding the duty to assist, the Veteran was provided an opportunity to submit additional evidence. It also appears that all obtainable evidence identified by the Veteran relative to the claim decided herein has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence not already of record that would need to be obtained for a proper disposition of this claim. It is therefore the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notice. The Board is unaware of any outstanding evidence or information that has not already been requested. The Veteran has been afforded a VA examination on the issue decided herein. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The examination afforded the Veteran is adequate. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008). The examination was conducted by a medical professional who reviewed the medical records, solicited history from the Veteran, examined the Veteran, and provided explanations for the conclusion reached. Accordingly, the Board finds that VA has satisfied its duty to notify and assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence under the duty-to-assist requirements. Therefore, no useful purpose would be served in remanding these matters for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The Court has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Factual background. The records indicate that the Veteran entered active duty in July 1976. The service treatment reports (STRs) reflect that the Veteran was seen in the emergency room in April 1978 with complaints of left knee pain; the impression was stretch of anterior cruciate and median collateral ligament. X-ray study of the left knee was normal. He was treated with medication. In May 1978, the Veteran was seen in the orthopedic clinic; at that time, he stated that he felt a giving way in his knee and fell during PT. The Veteran indicated that he subsequently developed pain in his knee and was unable to run. Following an evaluation, the Veteran was diagnosed with sprain, left knee, medial retinaculum. At the time of his discharge examination in June 1979, the Veteran complained of painful knees when running or jogging; clinical evaluation, including x-ray study of the knees, was normal. The Veteran's claim for service connection for a left knee disorder (VA Form 21-526) was received in April 2008. Submitted in support of the claim were VA progress notes dated from December 2007 to April 2009. These records show that the Veteran received ongoing clinical attention and treatment for a left knee disorder. During a clinical visit in December 2007, the Veteran reported a knot in his left knee; he complained of an achy feeling in the medial part of the knee. It was noted that the Veteran did have trauma about 2 years ago when he fell off a ladder; he currently had stiffness in the knee joint. The Veteran reported having had 3 surgeries on the left knee. The assessment was left knee "knot" along the medial left knee, probably osteoarthritis and old trauma. In September 2008, the Veteran was referred to a pain clinic for evaluation of chronic multiple joint pain due to osteoarthritis. It was noted that the Veteran has had a pain problem of one sort or another for 7 years; the pain was in the right shoulder, left knee and left wrist. It was reported that the Veteran had not had surgery. It was noted that the left knee had a brace that helps. The pertinent diagnosis was left knee pain. Of record is a lay statement from the Veteran's wife, dated in May 2009, who reported that they have been married since 1978. She noted that the Veteran has had problems with his feet and knees, and he has suffered several falls as a result of those conditions. The Veteran was afforded a VA examination in July 2009. The Veteran indicated that he started having knee pain after hurting the knee during jump school in 1977; he stated that he was seen and treated with pain medications and light duty. He stated that he was again seen a few years later while in the army and treated with light duty. The Veteran noted that he had many years after the military during which the knee was not bothersome. The Veteran also reported that he was seen by orthopedist at Mather in 2008, at which time he was diagnosed with probable MMT (medial meniscus tear) and treated with steroid injection and knee brace with no significant relief of pain. The examiner noted that the claims folder reflected that in April 1978, the Veteran had bilateral knee pain after PT tests; he was diagnosed with stretch of anterior cruciate and medial collateral ligament. X-ray of the knee was negative and he was treated with medication. In May 1978, the Veteran was seen by orthopedics, diagnosed with left knee sprain and treated with ace wrap and light duty. The Veteran indicated that he has pain on and off; he also reported weakness and stiffness in the left knee. The Veteran also noted that he has not worked since around 2006, does not know if any complaints would prevent him from working. Following a physical examination, including x-ray study of the left knee, the examiner reported a diagnosis of mild degenerative joint disease of the left knee, suspect MMT on examination and per Mather orthopedic evaluation in 2008. The examiner stated that the left knee condition is less likely as not caused by or a result of military as the knee strain was diagnosed within in the military and it is clinically evident that the Veteran has a previous meniscus tear. The examiner further noted that, after the military, the Veteran had time when the knee was not bothersome. Received in September 2009 were VA progress notes dated from April 2009 to September 2009, reflecting ongoing treatment for chronic pain in the joints, including the left knee. Received in September 2011 was a lay statement from the Veteran's wife indicating that they have known each other for 35 years, and the Veteran has suffered from increased pain in his knees. The Veteran was afforded another VA examination in January 2013. At that time, the Veteran described pain in the left knee that started around 1977 due to jump school and a helicopter accident. The Veteran indicated that he was evaluated about 3 to 4 times while in the military and treated with pain medications (ASA) without side effects, profile/light duty, and crutches. He was able to return to normal duty and pass PT tests. The Veteran denied injuries or traumas before, after or outside of the military. The Veteran stated that he was evaluated about 4 to 5 times after the military and treated with pain medications without side effects. He had also been treated with braces and cane with some support. The Veteran noted that he had years where his knee did not bother him and then it started bothering him around 2008, at which time he was seen by orthopedics at Mather and diagnosed with probable MMT; he was treated with steroid injections and knee brace with no significant relief of pain. Present complaints include on and off pain with heavy lifting, pushing, pulling or walking. He denied weakness, decreased range of motion, numbness, tingling, redness, bruising or any other complaints. Following examination of the knee, the examiner reported a diagnosis of degenerative joint disease and clinical evidence of MMT to the left knee. The examiner opined that the claimed condition was less likely as not incurred in or caused by the claimed in-service injury, event or illness. The examiner stated that the Veteran has clinical symptoms of medial meniscus tear due to guarding medial joint line tenderness and the 2008 report from Mather Orthopedics. After reviewing the claims file and the Veteran's history, the examiner opined that the MMT did not start or result from the Veteran's military service as it is at least as likely as not to be cause by the Veteran's obesity, tobacco dependence, lack of exercise, bilateral knee pains as evident from bilateral knee braces and altered exam, and age. The examiner stated that it is difficult to make a correlation between knee strains in 1978 causing mild degenerative joint disease or meniscus tears 30 years later in 2008. At his personal hearing in May 2013, the Veteran reported injuring his left knee while going through Army and Airborne training. He stated that he was subsequently removed from Army and Airborne training and assigned to loading cargo and supplies. The Veteran maintained that he was injured in service and his left knee continues to bother him today. It was observed that the Veteran was wearing a knee brace and walking with a cane. III. Legal Analysis. Service connection is warranted for disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. § 1131. To establish compensation for a present disability, there must be: "(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"--the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Holton v. Shinseki, 557 F.3d 1362 (2009). For a 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." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. If 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). Certain chronic diseases, including arthritis, may be presumed to have been incurred during service if they become disabling to a compensable degree within one year of separation from qualifying military service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The Veteran can attest to factual matters of which he has first-hand knowledge, such as 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). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition (noting that sometimes the lay person 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 lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21. Vet. App. 303 (2007). 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. After review of the evidentiary record, the Board finds that service connection is not warranted for a left knee disorder. While STRs reflect complaints of left knee pain in April 1978, the persuasive medical evidence of record causes the Board to conclude that the 1978 complaint reflected an acute and transitory condition. This is particularly so, as noted by the VA examiner that the remainder of the STRs are completely silent with respect to any complaints or diagnosis of a left knee disorder. In fact, at the time of his separation examination in June 1979, clinical evaluation, including x-ray study of the knees, was normal. The first clinical suggestion of the possible onset of a chronic left knee disorder is in December 2007, more than 29 years after service separation. (A significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. See generally Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000).) The Veteran here has contended continuity of left knee pain after injuring his knee during jump school in service. However, as noted above, while the STRs show that the Veteran was seen for complaints of left knee pain, his symptoms resolved; and, on his separation examination, clinical evaluation of the knees was normal. It is noteworthy that the Veteran failed to raise a claim of entitlement to service connection for a left knee disorder until 2008, over 30 years following discharge. This failure to raise a claim also strongly suggests that he has not suffered from chronic and continuous symptomatology since military service. In fact, during the VA examinations, the Veteran indicated that he had many years after the military in which the knee was not bothersome. As such, the Board finds that his assertions regarding continued symptoms are not credible. Therefore, continuity of symptomatology has not been demonstrated, either by the clinical evidence or through the Veteran's statements. In addition, there is no persuasive evidence indicating that there is a relationship between the Veteran's current left knee disorder and military service. Rather, following a VA examination in July 2009, the VA examiner concluded that the left knee condition is less likely as not caused by or a result of military as the knee strain was diagnosed within in the military and it is clinically evident that the Veteran has a previous meniscus tear. The examiner further noted that, after the military, the Veteran had time when the knee was not bothersome. That opinion was confirmed by a more recent VA examiner in January 2013 who, after reviewing the records and examining the Veteran, stated that the current left knee condition was less likely as not incurred in or caused by the claimed in-service injury, event or illness. The examiner noted that the Veteran has clinical symptoms of medial meniscus tear due to guarding medial joint line tenderness and the 2008 report from Mather Orthopedics. After reviewing the claims file and the Veteran's history, the examiner opined that the MMT did not start or result from the Veteran's military service as it is at least as likely as not to be cause by the Veteran's obesity, tobacco dependence, lack of exercise, bilateral knee pains as evident from bilateral knee braces and altered exam, and age. As for the Veteran's statements relating his current left knee disorder to service, although the Veteran is competent to describe symptoms pertaining to his claimed disability, whereas here, the question involved is one of medical causation, competent medical evidence is required to substantiate the claim because a lay person is not qualified through education, training, and expertise to offer an opinion on a medical diagnosis or on medical causation. 38 C.F.R. § 3.159; Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). While the Veteran is competent to say he experienced left knee symptoms since service, only a qualified expert is competent to say that the symptoms are attributable to what happened in service. As the most probative evidence of record clearly indicates that the Veteran did not incur a chronic left knee disorder in service, the claim of entitlement to service connection for a left knee disorder is denied. The preponderance of the evidence is against the claim. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Service connection for a left knee disorder is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs