Citation Nr: 1324424	
Decision Date: 08/01/13    Archive Date: 08/13/13

DOCKET NO.  09-37 215A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to service connection for a right knee disability.


REPRESENTATION

Appellant represented by:	Christine K. Clemens, Attorney


ATTORNEY FOR THE BOARD

S. B. Mays, Counsel







INTRODUCTION

The Veteran served on active duty from September 9, 2003, to October 20, 2004.

This appeal originally came before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

The most recent VA Form 21-22 completed by the Veteran in May 2013, appoints an attorney associated with Finkelstein & Partners, LLP, a private law firm, as her designated representative in any and all VA claims.  See also, prior VA Form 21-22s completed in September 2007, October 2009, June 2012, and March 2013.

The issue of entitlement to service connection for a personality disorder has been raised by the record.  (See the Veteran's January 2010 claim and subsequent evidence in support of the claim).  The RO initiated development of such claim by sending the Veteran VCAA notice letters in May and December 2010.  However, the RO has not yet adjudicated this issue, and it is therefore, REFERRED to the RO for appropriate action.

FINDING OF FACT

The probative medical evidence indicates that the Veteran's right knee disability is not related to her in-service knee injury or any other event in service.


CONCLUSION OF LAW

The criteria for the establishment of service connection for a right knee disability are not met.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012).




REASONS AND BASES FOR FINDING AND CONCLUSION

In this decision, the Board will discuss the relevant law which it is required to apply.  This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction).  The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts.

The Duties to Notify and Assist

As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist a claimant 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 complete or substantially complete application for benefits, VA is required to inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  These notice requirements apply to all five elements of a service-connection claim: 1) Veteran status, 2) existence of a disability, 3) relationship between the disability and military service, but also concerning the "downstream" 4) disability rating and 5) effective date.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom.  Hartman v. Nicholson, 483 F.3d 1311 (2007).

This notice should be provided prior to an initial unfavorable decision on a claim by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  However, if notice was not provided prior to initially adjudicating the claim or, if provided, was inadequate or incomplete, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is preserved, so not frustrated, in that the Veteran is given an opportunity to participate effectively in the adjudication of the claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The U.S. Supreme Court has made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on a case-by-case basis.  Moreover, as the pleading party attacking the agency's decision, the Veteran has this burden of proof of not only establishing error but also, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of the claim.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

In August 2008, the RO sent the Veteran a pre-adjudicatory notice letter which notified her of what information and evidence must be submitted to substantiate a claim for service connection, as well as what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA.  She has also been advised as to how disability ratings and effective dates are assigned.  See Dingess, supra.  And after all notice was provided to her, the claim was readjudicated by way of an SSOC issued in October 2010.  She has therefore received all required notice concerning her claim.

VA also has a duty to assist the Veteran in the development of this claim.  This duty includes assisting her in the procurement of her service treatment records (STRs) and pertinent post-service treatment records (VA) and providing an examination when needed to assist in deciding the claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

All necessary development has been accomplished to the extent possible and, therefore, appellate review of this claim may proceed without unduly prejudicing the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The claims folder contains the Veteran's STRs, VA and private medical evidence, and her lay contentions.  Also, VA afforded the Veteran an examination of her right knee to determine the current nature of disability and its etiology.  

The Veteran has not identified, and the record does not otherwise suggest, any additional existing evidence that is necessary for a fair adjudication of this claim that has not been obtained and that is obtainable.  She has received all essential notice, has had a meaningful opportunity to participate effectively in the development of this claim, and is not prejudiced by any technical notice deficiency along the way.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004).  VA's duties to notify and assist her with this claim have been satisfied.

Service Connection Claim

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service.  38 U.S.C.A. 
§ 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012).  Service connection may be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in active service.  38 C.F.R. § 3.303(d) (2012).

Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247, 252 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). 

Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012).

Additionally, claims for certain chronic diseases - namely those listed in 38 C.F.R. § 3.309(a) - benefit from a somewhat more relaxed evidentiary standard under 38 C.F.R. § 3.303(b).  A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

In its determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (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.  Davidson v. Shinseki, 581 F.3d 1313, 1316 Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77.

The Board must assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  In Jefferson v. Principi, 271 F.3d 1072  (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit , citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a).  Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996).

Here, the Veteran asserts that she has a right knee disability as a result of an injury sustained during active service.  There is evidence of a current disability.  A June 2008 private emergency room report shows a diagnosis of internal derangement of the right.  A September 2010 VA examination report shows a diagnosis of right knee strain.

The Veteran's STRs show that she sought medical treatment in September 2004 for 
localized pain after falling and landing on the anterior aspect of her right knee.  She was given Motrin.  Five days later, she returned and complained of continued right knee pain.  A provisional diagnosis was a knee sprain of the lateral collateral ligament.  X-rays of the right knee showed no abnormality.   The remaining service treatment records are negative for any right knee complaints, treatment, and/or diagnoses.

Shortly after service discharge, in late October 2004, the Veteran filed a service connection claim for posttraumatic stress disorder.  Notably, there was no mention of a right knee disability.  

In December 2004, the Veteran underwent a VA general medical examination.  Examination of the right knee was normal.   

Post-service right knee complaints are not shown in the record until June 2008, approximately 3 years and 8 months after the Veteran's discharge from service.   Although not dispositive, a lengthy period without complaint or treatment is considered evidence that there has not been a continuity of symptomatology and weighs heavily against the claim.  Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  

Additionally, the Veteran's June 2008 knee injury is not shown to be related to her active military service.  Instead, the evidence shows that the June 2008 knee injury occurred after she slipped in the water and fell while at her civilian job.  

In September 2010, the Veteran underwent a VA compensation examination of the right knee.  After a review of the claims file and examination of the Veteran, the examiner determined that the Veteran's right knee strain is less likely as not caused by, or a result of, her military service.  The examiner noted the in-service right knee injury, but also noted the absence of any subsequent right knee residuals in service.  Additionally, the examiner indicated that it was not until years later, in June 2008, that the Veteran had another right knee complaint and that complaint was related to a post-service work injury, and not her active service.  

This September 2010 VA opinion is fully articulated and contains sound reasoning.  As mentioned, the VA examiner had the benefit of reviewing the Veteran's claims file and examining the Veteran.  A synopsis of the Veteran's medical history was also included.  A medical opinion that is a factually accurate, fully articulated, and based on sound reasoning carries significant weight.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  The VA opinion in this case is therefore afforded significant probative value.  The Veteran has not presented or identified any existing, contrary medical opinion that, in fact, supports the claim for service connection.

The Veteran is competent to report observable symptoms, such as pain in her right knee.  However, the question of whether her current right knee disability is related to her service is a complex medical question, not capable of lay observation.  See Jandreau, 492 F.3d at 1376 (noting that lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 308 -09 (2007) (finding that lay testimony is competent to establish the presence of varicose veins).  Because the evidence does not indicate that the Veteran has the appropriate training, experience, or expertise to provide a medical opinion concerning a knee condition, she is not competent to comment on the etiology of her right knee disability.  Accordingly, the competent medical evidence outweighs her unsubstantiated lay reports regarding etiology.

There is no evidence of a chronic disease of the right knee, such as x-ray evidence of arthritis.  Therefore, service connection based on continuity of symptomatology is not for consideration, as a strain in the knee is not a chronic disease listed in 38 C.F.R. § 3.309(a).  

Most critically, the Veteran's essential contention of a nexus between her right knee disability and her in-service injury has been fully investigated as mandated by the Court's decision in Jandreau.   For the reasons and bases discussed above, the probative evidence indicates that her right knee disability is less likely than not related to her active military service.  Although the Veteran is entitled to the benefit
of the doubt where the evidence is in approximate balance, the preponderance of the evidence is against this claim and the appeal will be denied. 

ORDER

Service connection for a right knee disability is denied.



____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs