Citation Nr: 1327238 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 07-40 235 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a left knee condition. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty from April 1980 to July 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, which, in part, denied service connection for a left knee condition. The matter has since been transferred to the RO in Chicago, Illinois. In October 2011, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. to obtain a medical opinion. The action specified in the October 2011 Remand completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The Veteran's current left knee disability did not have onset in service and was not caused or permanently aggravated by the Veteran's active military service. CONCLUSION OF LAW The criteria for entitlement to service connection for a left knee disability have not been met. 38 U.S.C.A. § 1101, 1112, 1131 (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has reviewed all of the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). 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, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). However, in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic by 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). For disabilities that are not listed as chronic, the only avenue for service connection is by showing in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). Arthritis is recognized as a chronic disease by 38 C.F.R. § 3.309(a). Certain chronic diseases, including arthritis, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. See 38 U.S.C.A. §§ 1101, 1112, (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.307, 3.309 (2012). Service connection may 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) (2012). The Veteran contends that he has a left knee disability related to service. Specifically, he alleges that he served as a paratrooper during service and that the impact of the jumps he performed damaged his lower extremities, including his knees. Service personnel records show that the Veteran's military occupational specialty was that of a cannon crewman and that he received Basic Airborne training. Service treatment records show the Veteran was seen for pain in the bilateral knees, calves, and ankles in April 1980. At that time, he denied any specific injury. He was treated with Ace bandages and an analgesic balm. During his June 1982 separation examination, no relevant abnormalities were noted, and he denied any significant history of knee-related complaints. Post-service, there are no complaints of or treatment for a left knee condition until more than twenty years after separation from service. VA treatment records show that in January 2005, the Veteran sought treatment for left knee pain and giving way. He reported that a year earlier, he fell on the left knee while wrestling with his son and was told by a private orthopedist that he had meniscal and ligamentous tears. An x-ray taken at that time showed a normal left knee with the presence of calcifications at the level of the lateral meniscus. A January 2006 MRI showed small effusion, subchondral degenerative changes of the femoral condyle and patella, and a tear of the anterior cruciate ligament. In April 2006, the Veteran underwent surgery on the left knee to repair a torn anterior cruciate ligament. The Veteran was afforded a VA examination in September 2006. The claims file was reviewed by the examiner, who noted the Veteran had undergone an anterior cruciate ligament reconstruction in the left knee in April 2006. VA treatment records show the Veteran injured his knee at that time while playing with his son. The examiner concluded that the Veteran's current left knee condition was the result of his 2006 injury, and was not related to his military duties. In this case, the September 2006 VA examiner reviewed the claims file and included excerpts from the Veteran's service treatment records in the examination report. However, the examiner did not record the Veteran's April 1980 complaints, and did not discuss the relationship, if any, between those complaints and the Veteran's current condition. At a September 2008 general medical examination, the Veteran reported that developed bilateral knee pain in service while stationed in Italy, especially with jumping. He claimed that he went to sick call and complained quite often. Despite the Veteran's subjective complaints of pain, weakness, and swelling, on examination, there was no tenderness to palpation, no effusion, no increased warmth, no erythema, and no instability. The Veteran had full range of motion of the left knee, without painful limitation or additional limitation following repetitive testing. There was mild crepitation. The Veteran was diagnosed with mild bilateral knee strain. In an October 2011 VA medical opinion, a VA physician noted that the Veteran had been treated in service for a strain type injury to the knee, calf, and ankle, but that his symptoms were treated and resolved, without any further complaints. The examiner further noted that VA treatment records attribute the Veteran's current anterior cruciate ligament tear to an injury the Veteran reported suffering while playing with his son. He concluded that it is less likely than not that the Veteran's complaints in 1980 during active military service caused the Veteran's current left knee disability. Based on all the above evidence, the Board finds that entitlement to service connection for a left knee disability must be denied. Although the Veteran now claims that his Airborne training caused trauma to his lower extremities, including his left knee, the preponderance of the evidence is against such a finding. Although the Veteran claimed in May 2008 that he went to sick call and complained of bilateral knee pain quite frequently, in fact service treatment records show only an isolated instance of bilateral knee pain in April 1980. No further complaints of left knee pain are documented in the Veteran's service treatment records and no left knee disability was noted at separation from service in June 1982. The Veteran did not report any ongoing knee problems and denied suffering from a "trick or locked knee" on a Report of Medical History completed at that time. Post-service, the Veteran has presented no evidence that he sought treatment for any left knee problems until more than twenty years after separation from service. The Board notes that lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability). Here, the length of time between the Veteran's in-service complaints of left knee pain and his current complaints weighs against a finding that there is any relationship between the Veteran's current disability and service. Furthermore, the Veteran's own statements provide evidence against is claim, as he told his treatment providers in January 2005 that he injured his left knee wrestling with his son. At that time, the Veteran did not report any prior left knee injury or complaints. The Board finds that this account of his injury, made at the time he sought treatment for his current left knee condition, is more probative than later statements the Veteran made in connection with his claim. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the veteran). The Veteran's claim was referred for a medical opinion, but after reviewing the Veteran's claims folder, including his service treatment records, the examiner concluded that it is less likely than not that the Veteran's current left knee disability is etiologically related to the Veteran's active military service, including his in-service complaints of knee pain in April 1980. There is no medical opinion to the contrary. To the extent the Veteran himself has offered an opinion concerning the cause of his disability, he has not demonstrated that he has any knowledge or training in determining the etiology of such conditions. In other words, he is a layman, not a medical expert. The Board recognizes that there is no bright line rule that laypersons are not competent to offer etiology opinions. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (rejecting the view that competent medical evidence is necessarily required when the determinative issue is medical diagnosis or etiology). Evidence, however, must be competent evidence in order to be weighed by the Board. Whether a layperson is competent to provide an opinion as to the etiology of a condition depends on the facts of the particular case. In Davidson, the Federal Circuit drew support from Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) for support for its holding. Id. In a footnote in Jandreau, the Federal Circuit addressed whether a layperson could provide evidence regarding a diagnosis of a condition and explained that "[s]ometimes 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although the Veteran seeks to offer etiology opinions rather than provide diagnoses, the reasoning expressed in Jandreau is applicable. The Board finds that the question of whether the Veteran currently has a left knee disability due to his military service is too complex to be addressed by a layperson. This connection or etiology is not amenable to observation alone. Rather it is common knowledge that such relationships are the subject of extensive research by scientific and medical professionals. Hence, the Veteran's opinion of the etiology of his current disability is not competent evidence and is entitled to low probative weight. For all the above reasons, entitlement to service connection for a left knee disability is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). The Duty to Notify and Assist 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). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the VCAA duty to notify was satisfied by letters sent to the Veteran in June 2006 and August 2006. These letters informed the Veteran of what evidence was required to substantiate his claims, as well as of VA and the Veteran's respective duties for obtaining evidence. The Veteran was also informed of how VA assigns disability ratings and effective dates. VA also has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. 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 RO has obtained the Veteran's service treatment records, as well as VA treatment records. The appellant was afforded VA medical examination in September 2006 and May 2008 and a medical opinion in October 2011. The October 2011 VA medical opinion is adequate and probative for VA purposes because the examiner relied on sufficient facts and data, provided a rationale for the opinion rendered, and there is no reason to believe that the examiner did not reliably apply reliable scientific principles to the facts and data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, 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). (Continued on the next page) ORDER Entitlement to service connection for a left knee disability is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs