Citation Nr: 1325983 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 09-08 755 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for a bilateral knee disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran served on active duty from January 1966 to November 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. This matter was remanded in July 2010 and December 2011 for further development. The Veteran and his spouse testified at a Board hearing in May 2010; a transcript of that hearing is associated with the claims file. FINDING OF FACT A bilateral knee disability was not manifested during the Veteran's active duty service or for several years after service, nor is it otherwise related to service. CONCLUSION OF LAW A bilateral knee disability was not incurred in or aggravated by the Veteran's active duty service, nor may it be presumed to have been incurred in or aggravated by such service. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) - Duty to Notify As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim 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 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter in April 2008 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Veterans Claims Assistance Act of 2000 (VCAA) - Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the file contains a formal finding of unavailability with respect to the Veteran's service treatment records. The Board recognizes that it has a heightened obligation to assist the Veteran in the development of his case, and to explain findings and conclusions, as well as carefully consider the benefit-of-the-doubt rule when records in the possession of the government are presumed to have been lost or destroyed. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The case law does not, however, lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. Russo v. Brown, 9 Vet. App. 46 (1996). The Board finds that, based on the RO's efforts and the responses from the service department, it is reasonably certain that the Veteran's service treatment records are unavailable and that further efforts to obtain them would be futile. 38 U.S.C.A. § 5103A(b)(3)). See also O'Hare, 1 Vet. App. at 367. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record, including testimony provided at a May 2010 Board hearing before the undersigned. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection The issue before the Board involves a claim of entitlement to service connection. Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in 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; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). 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; 38 C.F.R. §§ 3.307, 3.309. 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). At a May 2010 Board hearing, the Veteran testified that he was a diesel mechanic who worked in a small, confined area. His duties required him to kneel on a platform made of, or similar to, steel grating. He testified that he did not seek treatment when he injured his knee. He also did not report a knee injury during his separation examination. He stated that he did not incur any specific trauma during service. Rather the injury was due to repetitive kneeling. He testified that he first sought treatment in 1971. The treatment records confirm that the Veteran sought treatment from Drs. J.W.B. and D.J.C. in September 1971. The treatment report reflects that there was no reported trauma, but the pain had been steady for the past week. Another treatment report (also dated September 1971) noted that the knee was much improved with hot packs and that the Veteran would be back at work. He was prescribed an Ace bandage to use at work. A July 1972 report reflects that the knee continued to be very painful with any weight bearing. A March 1978 treatment report reflects that the Veteran sought treatment for sudden right knee pain. A March 1978 arthrogram revealed a popliteal cyst and possible prominent synovium posteriorly. He was admitted to the hospital and diagnosed with a Baker's cyst, right knee. He underwent an excision of the cyst. A July 1979 x-ray of the left knee revealed a small Baker's cyst, otherwise essentially unremarkable study. A September 1979 treatment report reflects that the Veteran complained of a sore left knee. Bilateral arthrograms dated January 1983 revealed a popliteal cyst in the left knee and a current right knee popliteal cyst. The Veteran underwent bilateral arthroscopies in March 1983. They revealed a normal left knee and a small tear of the medial meniscus and chondromalacia of the articular surfaces of the right knee. An April 1983 treatment report reflects that the Veteran sought treatment for a four month history of right knee pain. A July 1987 report reflects that the Veteran sought treatment for intermittent left knee pain of six months duration. The report also indicates that he had a Baker's cyst on his left knee four years earlier. A July 1987 x-ray of the left knee yielded normal findings. In October 1987 the Veteran reported that he had been in a motor vehicle accident at age three, in which he sustained some injury to his right knee. He stated that the left knee is "always kind of bad." A July 1990 treatment report reflects that the Veteran complained of left knee pain that occurred when he bent down in a squat position and he felt a pop in his left knee accompanied by pain. The Veteran underwent a total right knee arthroplasty in February 2008. An October 2008 treatment report from Dr. D.L.B. reflects that the Veteran complained of discomfort in both knees that began 2-3 years after service. The Veteran submitted an October 2008 correspondence in which Dr. D.L.B. stated that shortly after working in the military, the Veteran began developing knee problems. He stated that from the Veteran's "description of his work during his years in the military it certainly seems plausible that this may have contributed to his longstanding knee dysfunction, surgeries, and ultimately his knee replacement." The Veteran underwent a VA examination in September 2010. The examiner reviewed the claims file in conjunction with the examination. After a thorough review of the Veteran and the claims file, the examiner opined that it was less likely than not that the Veteran's knee disabilities are due to injuries sustained while in military service. She noted that the medical records did not support the claim. She noted that the claim was not made within one year of his discharge from service; and that there were no service treatment records. In December 2011, the Board found the opinion of the September 2010 examiner to be inadequate because she predicated her opinion on the fact that there were no service treatment records and therefore no documentation of an in service injury. The examiner failed to address the lay evidence regarding the Veteran's contention that he sustained an injury due to repetitive kneeling on steel grating. The Board remanded the claim for an addendum to the September 2010 opinion. In January 2012, the September 2010 examiner submitted the requested addendum opinion. In her addendum, she acknowledged the opinion of Dr. D.L.B.; and she recognized the Veteran's contentions that his in service duties involved a great deal of kneeling. Finally, she noted that the Veteran first complained of knee pain in 1971. She reiterated her opinion that it was less likely than not that the Veteran's knee disabilities were due to injuries sustained while in military service. She stated that the Veteran had multiple joint arthritis to the upper and lower extremities consistent with diffuse arthritic condition not attributable to kneeling. She also noted that the missing service treatment records are not relevant inasmuch as the Veteran admitted that he was never evaluated or treated for knee pain during service. She noted that the post service treatment records reflect that the Veteran did not seek treatment for knee pain until several years after service. Analysis In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Veteran has established the first of these elements. There is no doubt that he suffers from disabilities to each of his knees. There is some doubt as to the second element. Without the service treatment records, there is no documentation of an injury sustained during service. Moreover, the Veteran has admitted that he never sought treatment during service. Consequently, even if the service treatment records were located, there would still be no documentation of an in-service injury. The Veteran has offered testimony that his in-service duties involved kneeling on steel grating. The Board finds this testimony to be credible. Consequently, the Board, in granting the benefit of doubt to the Veteran, finds that the Veteran has satisfied the second element of service connection. It is the third element of service connection in which the Veteran's claim falls short. As the service treatment records are unobtainable, and the Veteran has admitted that they would contain no record of treatment, chronicity in service is not adequately supported. However, as a chronic disease is at issue (arthritis in the knees) service connection may be established by continuity of symptomatology under 38 C.F.R. § 3.303(b) or based on initial diagnosis after service under 38 C.F.R. § 3.303(d). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Regarding continuity of symptomatology, it is unclear whether the Veteran has specifically argued that his symptoms have been continuous since service. The nearest argument to continuity of symptomatology appears to be an October 2008 correspondence from Dr. D.L.B. in which he stated that the Veteran began developing knee problems "shortly after working in the military." The Veteran began treating with Dr. J.W.B. in September 1971 (four years after service). The treatment reports only reflect that pain had been steady for the past week. There was no indication that he had been experiencing knee pain for the past four years. Additionally, a March 1978 treatment report reflects that the Veteran sought treatment for sudden right knee pain. The sudden occurrence of pain certainly indicates that the Veteran did not have right knee continuously. Likewise, an April 1983 treatment report reflects that the Veteran sought treatment for a four month history of right knee pain. Again in July 1987, treatment reports reflect that the Veteran sought treatment for intermittent left knee pain of six months duration. Consequently, it does not appear that the Veteran was suffering from right or left knee pain continuously since 1967. Even an October 2008 treatment report from Dr. D.L.B. reflects that the Veteran complained of discomfort in both knees that began 2-3 years after service. For the above reasons continuity of symptomatology is not demonstrated here, either by the clinical record or by the Veteran's own statements. As noted above, service connection is not warranted in this case on the basis of continuity of symptomatology. However, if the competent medical evidence indicates that the current bilateral knee disability is related to the Veteran's active service, then an award of service connection would be appropriate. In this vein, the VA examiner in September 2010 (and via an addendum in January 2012) concluded that the Veteran's knee disability was less likely than not related to service because the Veteran did not seek treatment for years after service, and because the Veteran had multiple joint arthritis to the upper and lower extremities consistent with diffuse arthritic condition not attributable to kneeling. The Board finds the opinion of the VA physician to be persuasive evidence. Indeed, it was based on a review of the record and was offered following a physical evaluation of the Veteran. Moreover, it was accompanied by a clear rationale. In order to establish the requisite nexus between the Veteran's current disability and his in service injury, the Veteran has submitted an October 2008 correspondence from Dr. D.L.B. in which he stated that given the Veteran's job description, it "certainly seems plausible that this may have contributed to his longstanding knee dysfunction, surgeries, and ultimately his knee replacement." The opinion of Dr. D.L.B. conflicts with that of the September 2010 VA examiner, who found that it was less likely than not that the Veteran's current disability began during, or was caused by, his in-service injury. The Court has held that the Board must determine how much weight is to be attached to each medical opinion of record. See Guerrieri v. Brown, 4 Vet. App. 467 (1993). Greater weight may be placed on one medical professional's opinion over another, depending on factors such as reasoning employed by the medical professionals and whether or not, and the extent to which, they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). Adequate reasons and bases, in short, must be presented if the Board adopts one medical opinion over another. In assessing evidence such as medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. 444, 448-9 (2000). In some cases, the physician's special qualifications or expertise in the relevant medical specialty or lack thereof may be a factor. In every case, the Board must support its conclusion with an adequate statement of its reasoning of why it found one medical opinion more persuasive than the other. There are substantial and significant factors which favor the valuation of the VA medical opinion over the opinions of the private physicians in this case. The Veteran has admitted that he never sought treatment for a disability during service. Consequently, even if the service treatment records were located, they would show no complaints, symptoms, diagnoses, or treatment of either knee. The Veteran testified that he did not seek treatment until 1971 (4 years after service). Most importantly however, is the fact that the Board finds that the opinion of Dr. D.L.B. is clearly speculative and cannot support the claim. Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinions that are speculative, general, or inconclusive in nature cannot support a claim); Bostain v. West, 11 Vet. App. 124, 127-28, quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (a medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a causal relationship). See also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (a doctor's statement framed in terms such as "could have been" is not probative). His opinion was merely that given the Veteran's job description, it "certainly seems plausible that this may have contributed to his longstanding knee dysfunction, surgeries, and ultimately his knee replacement." [Emphasis added]. Consequently, the Board finds the opinion of the VA examiner to be more probative. It was rendered after a thorough examination of the Veteran and his claims file; and it was accompanied by a clear rationale that took into consideration the Veteran's job description, his lay statements, and the opinion of Dr. D.L.B. The Board notes the lay contentions of the Veteran; and the fact that the Veteran is considered competent to report the observable manifestations of his claimed disability. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (lay testimony iterating knowledge and personal observations of witness are competent to prove that claimant exhibited certain symptoms at particular time following service). However, the Veteran is not competent to opine on the diagnosis or etiology of his disability. Where a determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) ("Sometimes the layperson 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.") "Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, [describe that issue] 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)." As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim for service connection for a bilateral knee disability must be denied. See Gilbert v. Derwinski, 1 Vet. App 49 (1990). ORDER Entitlement to service connection for bilateral knee disabilities is not warranted. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs