Citation Nr: 1324710 Decision Date: 08/02/13 Archive Date: 08/13/13 DOCKET NO. 09-27 895A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for a left knee disability. 2. Entitlement to service connection for a right knee disability. 3. Entitlement to service connection for a fracture of the right side of the rib cage. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD B. Thomas Knope, Counsel INTRODUCTION The Veteran served on active duty from July 1973 to August 1976. This matter is on appeal from rating decisions in July and November 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Veteran testified before the undersigned Veterans Law Judge in June 2012. A transcript of the hearing is of record. This appeal was remanded by the Board in March 2013 for further development and is now ready for disposition. A March 1977 rating decision denied a claim for "laxity of multiple joints," which included the shoulders, elbows, hips and knees. In general, a claim that has been previously denied will not be reopened unless evidence that is both new and material to the basis of the last final denial. 38 C.F.R. § 3.156 (2012); Smith v. West, 12 Vet. App. 312, 314 (1999). A claim for service connection based on a new or different theory of causation for the same disease or injury is still the subject of a previously denied claim and cannot be the basis of a new claim. Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008). However, the Board finds that the Veteran's current bilateral knee disability claim is a separate and distinct disability from what was adjudicated in 1977. It is clear from the 1977 decision that the Veteran was seeking service connection for some systemic disability that affected a number of joints, and was not related to a specific knee disability. Indeed, there was question at that time whether "laxity of multiple joints" constituted a disability for VA purposes. The current claim relates to specific identifiable injuries to the knees, the origin of which are based on an entirely separate set of facts than those considered in the 1977 decision. Therefore, the Board finds that they are original claims, and analysis under 38 C.F.R. § 3.156 is unnecessary. FINDING OF FACT A diagnosed knee disability or a fracture of the rib cage was not shown in service or for many years thereafter, and is unrelated to active duty service. CONCLUSIONS OF LAW 1. A left knee disability was not incurred in or aggravated by service, and is not related to service. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2012). 2. A right knee disability was not incurred in or aggravated by service, and is not related to service. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2012). 3. A fracture of the right side of the rib cage was not incurred in or aggravated by service, and is not related to service. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims 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). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim, to include Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Here, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required, and none is found by the Board. Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Board finds that the duty to notify was satisfied by letters sent to the Veteran in March 2007 and July 2008 that fully addressed all notice elements and were followed by subsequent readjudication. The letters informed the Veteran of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. They also provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, and notice of the type of evidence necessary to establish an effective date. Therefore, adequate notice was provided to the Veteran. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). Next, VA has a duty to assist a veteran in the development of the claim. That duty includes assisting in the procurement of service medical records and other pertinent records, and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service medical records and VA outpatient treatment records and records submitted in conjunction with a claim to the Social Security Administration (SSA). While the RO was on notice that there may be relevant records available from Army hospitals in Nuremburg and Frankfurt, Germany, those records were unavailable. Nevertheless, based on the RO's formal finding of unavailability, the Board is satisfied that a diligent effort was made to acquire those records. The Veteran submitted treatment records from a private facility and his own statements in support of his claim. Next, a VA examination with respect to the issues on appeal was obtained in April 2013. 38 C.F.R. § 3.159(c)(4) (2012). When VA provides a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds that the VA examination obtained in this case is adequate. It is predicated on a full understanding of the Veteran's medical history, and provides a sufficient evidentiary basis for the claim to be adjudicated. 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) (2012). The Veteran testified at a hearing before the undersigned Veterans Law Judge in June 2012. This appeal was remanded by the Board in March 2013 for further development. Specifically, the Board instructed the RO to schedule the Veteran for a VA examination, and request from that examiner an opinion as to whether it was at least as likely as not that the claimed knee and rib disabilities were related to active service. The Board is now satisfied there was substantial compliance with the remand. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). Specifically, the Veteran was provided a VA examination in April 2013, which the Board finds adequate for adjudication purposes. After the required development was completed, the claims was readjudicated and the Veteran was sent a supplemental statement of the case in May 2013. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Generally, the evidence 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); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). In some cases, the inservice incurrence and a relationship to service may be established through a demonstration of continuity of symptomatology for certain specific chronic disabilities. 38 C.F.R. § 3.303(b) 92012); Barr v. Nicholson, 21 Vet. App. 303 (2007). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997). However, service-connection may be established under 38 C.F.R. § 3.303(b) only for disabilities considered to be chronic under 38 C.F.R. § 3.309(a). While degenerative arthritis is considered a chronic disease under 38 C.F.R. § 3.309(a), residuals of a bone fracture is not, and may not be service connected under 38 C.F.R. § 3.303(b). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Nevertheless, evidence of continuous symptoms since active duty is still a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disability as is contemplated. 38 C.F.R. § 3.303(a) (2012). Service connection will also be presumed for chronic diseases, including degenerative arthritis, if manifest to a compensable degree within one year after discharge from service. 38 C.F.R. §§ 3.307, 3.309 (2012). VA must give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. 38 U.S.C.A. § 1154(a) (West 2002); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran's contentions are best set forth by the statements he made at his hearing before the Board in June 2012. He described an incident where he was struck on the right side of his body by an armored personnel carrier engine while stationed in Germany in 1975. He also reported that he was hospitalized for the injuries he sustained in that incident. Since that time, he claims to have experienced continued symptoms, including pain in the right side of his rib cage. He also attributed his bilateral knee symptoms to that incident, although he has acknowledged that he has experienced some post-service knee injuries. After a review of the evidence of record, the Board determines that service connection is not warranted for any of the disabilities on appeal. As an initial matter, the available service medical records do not show complaints of, treatment for, or a diagnosis of any rib or knee injury while in service. Those records show evaluations for what was characterized as "laxity of the joints," and there was some associated swelling observed in the left knee in August 1976. However, there is no indication that was a disabling condition or that it represented any chronic disability. Although the Veteran stated that he was hospitalized for his injuries, that statement is not corroborated by the service medical records. Significantly, at the time of the Veteran's separation physical examination in August 1976, the evaluating physician observed that the Veteran's shoulders and hip joints were especially prone to dislocation. However, there was no discussion of a rib or knee disability, nor was there discussion of any major in-service injury as the Veteran describes. While the RO was unable to acquire any hospitalization records, the Board finds it reasonable that a hospitalization would have been mentioned on other treatment notes, and on the separation physical examination. Therefore, the clinical evidence does not indicate the presence of an identifiable disability to the knees or a rib injury during service. The post-service evidence does not show symptoms related to any knee or rib injury for many years after the Veteran left active duty service. Specifically, the first indication of a knee disability of record is an evaluation in October 2006 which notes that he underwent a meniscal debridement on his left knee in 1995. The first indication of any sort of disability in the right knee was not until August 2006, where radiographic imaging indicated loose bodies in the joint space and likely degenerative arthritis. Similarly, the first indication of a rib disability was not until an evaluation in September 2004, when he complained of rib pain for the past week after he fell from a bicycle. While an X-ray performed in October 2004 did not definitively identify a rib fracture, he was diagnosed with costochondritis, an inflammatory condition of the chest wall, that same month. In any event, the Board emphasizes that this first indication of any of the claimed disabilities, specifically when the Veteran underwent on his left knee operation in 1995, is still approximately 19 years after he left active duty. Consideration has been given to the observations made by some evaluating physicians that the Veteran appeared to have a chest and rib malformation on the right side of his rib cage. However, that evidence does not establish that it is at least as likely as not that there is any disability or rib cage related to service. Therefore, continuous indications of degenerative arthritis in the knees, or any indications of a rib fracture since the Veteran left active duty service in 1976, has not been shown based on the clinical evidence of record. Additionally, even though service connection for a rib fracture may not be established simply based on continuity of symptoms, such a large gap in treatment weighs against the Veteran's claim that it is related to service. In addition to the documented post-service treatment records, the Board has also considered the Veteran's statements asserting continuous symptoms since active duty service. McClain v. Nicholson, 21 Vet. App. 319 (2007). In doing so, the Board may consider factors such as facial plausibility, bias, self interest, and consistency with other evidence of record. Caluza v. Brown, 7 Vet. App. 498 (1995); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact. Weight and credibility are factual determinations going to the probative value of the evidence made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994). Although interest may affect the credibility of testimony, it does not affect competency to testify. Cartright v. Derwinski, 2 Vet. App. 24 (1991). The Veteran is competent in some cases to self-diagnose some disabilities despite his status as a lay person. However, he is not competent diagnose joint disabilities, such as arthritis of the knee or bone fractures, as they may not be diagnosed by its unique and readily identifiable features, and require a determination that is medical in nature. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Nevertheless, the Veteran's lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, the Board determines that the Veteran's reported history of continued symptomatology since active service, while competent, is nonetheless not credible. First, regarding his knee complaints, his assertions of knee symptoms are contradicted by other evidence of record. Most significantly, at a VA examination in February 1977, he specifically denied that he has ever experienced any type of disability in the knees. In fact, at a more recent VA examination in October 2004, he stated that his knee disabilities did not begin in the "1980's." Regarding his rib complaints, although the Veteran has claimed to have symptoms associated with a prior rib fracture, there is no clinical evidence to support that assertion. Moreover, he did not mention symptoms related to any rib disability until September 2004 and, even on that occasion, it appears well established that those symptoms were due to a bicycle accident only one week before. Finally, the Board also cannot ignore the significance of the fact that the Veteran did not file his claim for service connection for the claimed disability for decades after he left active duty. While that fact is not necessarily dispositive, a Veteran's delay in asserting a claim can constitute negative evidence. Shaw v. Principi, 3 Vet. App. 365 (1992). Therefore, continuity is not established based on the clinical evidence of record or the Veteran's statements. Next, service connection may also be granted when the evidence establishes a medical nexus between active duty service and current complaints. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's claimed disabilities to active duty, despite his contentions to the contrary. Specifically, the Board places significant value on the opinions of a VA examiner who evaluated the Veteran's symptoms in April 2013. Regarding the claimed bilateral knee disability, the Veteran stated that his knees had been symptomatic since he left active duty service. However, when he left service, he performed heavy labor in plywood manufacturing factories and lumber mills. Since that time, he underwent surgeries to the left knee twice, but had never had surgery on the right knee. His current knee symptoms included some pain and swelling, and his left knee occasionally locked. An examination of the knees revealed some limitation of motion, excess fatigability, pain upon motion, and some laxity in the knee joints that appeared related to prior ACL injuries. After the examination was complete, the VA examiner diagnosed degenerative joint disease in both knees, with laxity resulting from tears to the ACLs, bilaterally. However, the examiner opined that it was less likely than not that the Veteran's bilateral knee disability was related to active duty service. In providing that opinion, the examiner first noted that the laxity observed in the Veteran's knees due to his ACL injuries was different than the generalized joint laxity observed in service, where the ligaments were still intact. While there was one incident of knee swelling in service, there was no documentation of instability. Moreover, the examiner noted that the Veteran denied knee symptoms in 1977 and admitted that he injured his left knee while working in the 1980s. It was more likely, in the VA examiner's opinion, that his knee disabilities were related to his years of manual labor after service. As for his claimed rib injury, the Veteran stated that his pain had been present since the time of his injury in service. He also recalled that he injured his ribs while doing construction in 1982. Since that time, he experienced pain across the rib cage which sometimes inhibited his breathing. The examiner noted from a review of the claims file that X-rays from January 2007 indicated healed fractures to the right side of the rib cage. However, definite indications of a rib fracture were not observed on previous X-rays in October and November 2004. After reviewing the claims file, the VA examiner opined that it was less likely than not that the Veteran's healed rib fracture was attributable to active duty service. In providing that opinion, the examiner noted that there was a "lack of objective evidence" to support the Veteran's claim that he fractured his ribs in service. Notably, there were no complaints indicative of a rib fracture in service, nor did the Veteran mention any sort of injury at his VA examination in 1977. On the other hand, the Veteran admitted to rib injuries while working in 1982, and again after a bicycle accident in 2004. While the examiner recognized that the Veteran's active duty accident may have impacted his ribs, there was no clinical evidence that an actual rib disability existed resulting from it. The Board finds that the examination and resulting opinions are adequate for evaluation purposes. The examiner reviewed the claims file, interviewed the Veteran, and conducted a physical examination. There is no indication that the examiner was not fully aware of the Veteran's past medical history or that he misstated any relevant fact. Significantly, the Veteran has not presented any clinical evidence that would contradict the examiner's conclusions. The Board has also considered the statements made by the Veteran relating his knee and rib cage disabilities to his active service. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Veteran is not competent to provide testimony regarding the etiology of joint disabilities such as ligament damage or arthritis, nor is he competent to identify fractures, as those disabilities are not diagnosed by unique and readily identifiable features that do not involve a simple identification that a layperson is competent to make. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the unsubstantiated statements regarding the claimed etiology of the Veteran's knee and rib symptoms are found to lack competency. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for bilateral knee and rib cage disabilities. Therefore, the claims are denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a left knee disability is denied Service connection for a right knee disability is denied. Service connection for a fracture of the right side of the rib cage is denied. ______________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs