Citation Nr: 1324979 Decision Date: 08/06/13 Archive Date: 08/13/13 DOCKET NO. 10-09 596 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran served on active duty from January 1969 to June 1972. This matter comes before the Board of Veterans' Appeals (Board) from a February 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for a right knee disability The Veteran testified at a hearing held at the RO in April 2012. In September 2012 and March 2013, the claim was remanded for additional development. FINDING OF FACT A right knee disability is not related to any disease, injury, or incident of service, and arthritis was not manifested within one year of service discharge. CONCLUSION OF LAW A right knee disability was not incurred in or aggravated by the Veteran's active duty military service and may not be presumed to have been incurred in or aggravated by such service. 38 U.S.C.A. §§ 1110, 1112, 1131, 5103, 5103A, 5107 (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. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and 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); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that the VCAA 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. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a February 2008 letter, sent prior to the initial February 2009 rating decision, advised the Veteran of the evidence and information necessary to substantiate his service connection claim, as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, the February 2008 letter advised the Veteran of the evidence and information necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. Relevant to the duty to assist, the Veteran's service treatment records and VA records have been obtained and considered. The Board has also reviewed the Veteran's paperless Virtual VA claims file. Additionally, the Veteran has been afforded a VA examination in relation to his claim. The Board finds that the opinions provided by the VA examiners are detailed and adequate to decide the claim. The Court held in Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010) that there are two duties imposed by 38 C.F.R. 3.103(c)(2), (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, when asked by the Veterans Law Judge, the Veteran indicated at the hearing that all available treatment records and evidence had been submitted. Testimony and information provided by the Veterans Law Judge elicited knowledge of the elements of service connection. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. The Board notes that the Veteran's claim was remanded in July 2011 and June 2012 in order to print Social Security Administration records, obtain any additional medical records, and afford the Veteran with VA examinations. As such directives have been substantially complied with, as discussed in the preceding paragraphs, no further action is necessary in this regard. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis 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 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet.App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Pursuant to 38 C.F.R. § 3.303(b), for those claims considered to be chronic under 3.307, a claimant may establish the second and third elements by demonstrating continuity of symptomatology. See Barr v. Nicholson, 21 Vet.App. 303 (2007). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, to include arthritis, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. For injuries alleged to have been incurred in combat, 38 U.S.C.A. § 1154(b) (West 2002) provides a relaxed evidentiary standard of proof to determine service connection. Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996). When an injury or disease is alleged to have been incurred or aggravated in combat, such incurrence or aggravation may be shown by satisfactory lay evidence, consistent with the circumstances, conditions, or hardships of combat, even if there is no official record of the incident. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2012). Satisfactory evidence is credible evidence. See Collette. Such credible, consistent evidence may be rebutted only by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2012). That provision does not establish a presumption of service connection; rather, it eases a combat veteran's burden of demonstrating the occurrence of some in-service incident to which the current disability may be connected. See Collette. The reduced evidentiary burden only applies to the question of service incurrence, and not to the question of either current disability or nexus to service; both of these inquiries generally require competent medical evidence. Brock v. Brown, 10 Vet. App. 155 (1997); Libertine v. Brown, 9 Vet. App. 521 (1996); Beausoleil v. Brown, 8 Vet. App. 459 (1996). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that his current right knee disability, osteoarthritis, was caused or aggravated by a combat injury in service, specifically, when he was traveling in a jeep that ran off the road, hit a mine, and threw him into a rice paddy. His right leg was broken and he was medivaced to a hospital, casted, and sent home. Service treatment records reflect that in May 1972, once he had returned to the United States after his service in Vietnam, the Veteran reported that he had sprained his right ankle. The Veteran's right ankle was x-rayed and there was evidence of an old healed fracture but no acute fracture or dislocation. On separation examination, examination of the musculoskeletal system, which included the knees, was normal. Post-service treatment records reflect that in October 2009, the Veteran reported having a knot in his right knee for about two years. The ongoing diagnosis was osteoarthritis of the knee. Other VA records beginning in 2004 reflect the Veteran's report that he had previously broken his right leg, though the date of the injury was not recorded. On October 2012 VA examination, the Veteran reported that while he was in Vietnam, his leg was casted and that once he returned home, his mother took him to the doctor to have it recasted. The post-service records relating to the recasting of the knee were not available because of the death of the private physician. Physical examination of the right knee resulted in a diagnosis of right knee strain. In April 2013, the RO obtained an addendum to the October 2012 VA examination. On review of the claims file, the examiner determined that it was less likely than not that the Veteran's right knee disability was caused or aggravated by his service. The examiner explained that despite the Veteran's report of service incurrence on October 2012 VA examination, the service treatment records, particularity a physical examination conducted in 1972, documented normal lower extremities. Moreover, the current imaging did not reflect evidence of any remote injury or post-traumatic arthritis of the knee. The service records showed a one day history of an ankle sprain that was not consistent with the injury the Veteran reported. Although the Veteran stated that he had still been casted upon leaving service, the x-ray of the ankle in service showed only a healed, old fracture, date of which was unknown. First, the Board finds that service connection for a right knee disability is not warranted on a presumptive basis, as there is no indication of a diagnosis of arthritis within one year following service discharge. 38 C.F.R. § 3.307, 3.309. Next, the Board finds that the preponderance of the evidence is against a claim for service connection for a right knee disability. In so finding, the Board places great probative weight on the April 2013 VA examiner's opinion because it is well-reasoned and explained, and comports with the record. The examiner found no evidence of a right knee injury in service and the current imaging studies of the right knee did not evidence a posttraumatic injury to relate to service. Such findings comport with the record in that the service records do not corroborate the Veteran's testimony and there is no indication of a right knee disability related to combat trauma. Thus, to the extent that the Veteran has contended that he broke or injured his right knee in service and has experienced right knee pain since service, the Board finds such statements lack credibility and, therefore, accords less probative weight to such contentions. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). In the instant case, the Board finds the Veteran's statements regarding service incurrence and continuity of symptomatology to be less credible as they are inconsistent with the evidence of record and thus were made under circumstances indicating bias or interest. While the Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence, the Board may, however, in the present case, consider a lack of contemporaneous medical evidence as one factor in determining the credibility of lay evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). In that regard, the Board notes that there is a lack of evidence of a diagnosis of a right knee disability or complaints or treatment for such for many years following service. Despite the report that he was casted upon separation from service and needed to have his knee recasted following service, the first indication of a right knee disability is not until more than 30 years following separation from service. It was not until the mid-2000s that the Veteran reported a knot in the right knee that had begun two years previously. Although he referenced a broken leg, he never provided details of such events and there has been no indication on x-ray or physical examination of a previous break, much less one that occurred while in Vietnam. Therefore, the Board finds that the Veteran's current statements, made in connection with his pending claim for VA benefits, that he has suffered from a combat injury that resulted in a broken leg and a right knee disability, are inconsistent with the contemporaneous evidence. Therefore, the Veteran's lay assertions of service incurrence and continuity of symptomatology are less credible and persuasive in light of the other evidence of record, and are, in fact, outweighed by this evidence. The Board acknowledges that the Veteran was involved in combat in Vietnam and thus, his report of injuring his knee in service is consistent with his circumstances in service. However, the service records refute his contentions because they do not show any right knee injury while in Vietnam, and such was confirmed by the 2013 VA examiner. Therefore, despite his report of injury in service, the Board finds that the presumption of service incurrence has been rebutted because there is clear and convincing evidence to the contrary. The Board notes that the Veteran has contended on his own behalf that his right knee disability is related to his military service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), the specific issue in this case falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer)." Because, while the Veteran is competent to describe his knee pain, the Board accords his statements regarding the etiology of such disorder less probative value as he is not competent to opine on such complex medical questions. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. Brown, 7 Vet. App. 134, 137 (1994). Moreover, the Veteran has only offered conclusory statements regarding the relationship between his military service and right knee disability. By contrast, the VA examiner took into consideration all the relevant facts in providing the probative medical opinion, as described in detail above. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a right knee disability. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for a right knee disability is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs