Citation Nr: 1328257 Decision Date: 09/04/13 Archive Date: 09/10/13 DOCKET NO. 08-26 753 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). The Veteran served on active duty from July 1951 to July 1971. This appeal comes before the Board of Veterans' Appeals (Board) from June 2002 and August 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran provided testimony at a hearing at the RO before the undersigned Veterans Law Judge in April 2010. A transcript of the hearing has been associated with the claims files. When the case was most recently before the Board in February 2013, it was remanded for further development. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA FINDINGS OF FACT 1. A left knee disability was not present until more than one year following the Veteran's discharge from service and is not etiologically related to service. 2. A right knee disability was not present until more than one year following the Veteran's discharge from service and is not etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. The criteria for service connection for a right knee disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). With respect to the claim of entitlement to service connection for a left knee disability, the Veteran was provided all required notice in letters mailed in May 2002 and May 2007. Although the Veteran was not provided complete notice until after the initial adjudication of the claim, the Board finds that there is no prejudice in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development of the record, the originating agency readjudicated the Veteran's claim. There is no indication in the record or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). With respect to the claim of entitlement to service connection for a right knee disability, the Veteran was provided all required notice in a letter mailed in August 2007, prior to the initial adjudication of the claim. The record also reflects that all available service treatment records (STRs) and post-service medical evidence identified by the Veteran have been obtained. The records associated with the Veteran's hospitalization in France were requested but were not available and the Veteran was so informed in the August 2013 supplemental statement of the case. Neither the Veteran nor his representative has identified any outstanding, existing evidence that could be obtained to substantiate the claims; the Board is also unaware of any such evidence. The Veteran has been afforded an appropriate VA examination and probative opinions (i.e. opinions supported by a detailed rationale) have been obtained with respect to the etiology of the disabilities at issue. Moreover, there has been substantial compliance with the Board's previous remand directives. Accordingly, the Board will address the merits of the Veteran's claims. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests 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, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as opposed to merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background The Veteran seeks service connection for a bilateral knee disability. In July 2002, he reported injuring his left knee during service, explaining that he fell off an F-84 in December 1955 and injured the left knee and that he was hospitalized in 1958 for swelling of the left knee. At that time, he denied any "trouble" with the right knee during service and indicated that the right knee, which he reported had been diagnosed with arthritis, had only been a problem for the "last two to three years." He later reported injuring each knee during service and having symptoms in each knee during and since service. Service treatment records show that in May 1956, the Veteran reported history of falling to the floor after fainting. The Veteran explained that his "knees just gave out [and] then he noticed fading out." He also reported anorexia, nausea, and headaches. The Veteran was diagnosed with gastroenteritis. A December 1958 emergency sick call record reflects a finding of what appears to be bursitis of the left knee. The record notes that the Veteran was admitted for treatment. The associated clinical record indicates that the Veteran was discharged from the hospital after four days with a diagnosis of acute myositis of the quadriceps muscle due to an undetermined organism. A June 1965 examination record reflects the Veteran's history of "trick' or locked knee." The Veteran explained that the right knee was swollen and painful "on one occasion, 1960, France," for which the Veteran was hospitalized for 14 days and treated with heat and ice. The record adds that the episode cleared spontaneously without recurrence. Examination revealed normal clinical findings for the lower extremities. The examiner noted that the Veteran had full range of motion and strength in the right knee. An October 1968 examination record reflects normal clinical findings for the lower extremities. The record reflects the Veteran's history of a swollen right knee on one occasion in 1958. The record indicates that the Veteran did not know the cause of the swelling and that there had been no recurrence, no complication, and no sequelae. A January 1970 treatment record reflects the Veteran's history of falling on his right elbow. The record does not note a reason for the fall. The January 1971 retirement examination record reflects the Veteran's history of swollen joints and negative history as to "trick' or locked knee." The Veteran explained that he was hospitalized for a swollen right knee in 1959 and that he "occasionally" had a stiff knee. Clinical examination of the lower extremities was normal. A February 2004 private treatment record reflects that the Veteran had been taking Vioxx for arthritis, which helped his hands. The record reveals a diagnosis of unspecified polyarthropathy or polyarthritis involving multiple sites. April 2005 private treatment records reflect the Veteran's history that a truck ran over his lower legs and feet the day before. The records do not reflect any complaints specific to either knee. X-ray images of the tibia and fibula were negative. A February 2007 private treatment record reveals that the Veteran had "about a ten year history of gradually increasing pain in both of his knees." The record reveals diagnoses of advanced degenerative arthritis of the left knee, for which the Veteran subsequently underwent a total knee arthroplasty, and moderate to advanced degenerative arthritis of the right knee. In April 2007, the Veteran reported that he injured both knees when he fell off an F-84 in 1955. He explained that he was unable to receive medical treatment because sick call was closed. He also reported that he was moving heavy cannons in 1958, when he felt the knee buckle and swell. He explained that he was hospitalized for six days until the swelling went down. He further reported experiencing problems with the knees in January 1969, while at survival training. An August 2007 VA examination record notes that the Veteran reported a history of knee swelling during service, for which he was hospitalized. He did not remember which knee was affected and did not remember X-ray images being taken during the treatment. He did report "some pain off and on through his military service," though he did, "not remember going in again for his right knee." The examiner noted that the service records showed hospitalization for a swollen, painful right knee in 1960 and a history of occasional stiffness at separation. The Veteran was diagnosed with degenerative joint disease. The examiner stated that, "after thoroughly reviewing the chart, there was only one episode of right knee being swollen, which could be due to a variety of factors not related to [the Veteran's] current condition." The examiner reiterated that the Veteran, "had no other visits while in the service regarding the right knee," though there was a history of occasional stiffness at separation. The examiner noted that the claims file did not show any significant notations since the Veteran's discharge from service other than the more recent notations. The examiner determined that there was no evidence of chronicity and that the degenerative joint disease was most likely age-related. Thus, the examiner found it less likely than not that the right knee disability was the result of or caused by military service. In 2008, the Veteran reported a history of bilateral knee discomfort during and since service, explaining that the pain began after injuring the knees while moving heavy crates. See January 2008 notice of disagreement; August 2008 Form 9. At the April 2010 hearing, the Veteran testified that he would jump from planes and scaffolding to the concrete ground, estimated as between three to five feet, while working in the munitions service. He added that he would hit his knees on rockets and other things sticking out of the plane when jumping and that he injured the left knee and caused the swelling in the right knee after moving heavy cannons. He further testified that his right knee "froze up" while he was in survival school in 1969 and that his knees would give out approximately once a year. He explained that he did not seek medical treatment because he was worried about his military career. Particular to the right knee, he testified that he was hospitalized for a swollen right knee during service and that he was told at the time of discharge that there was "nothing wrong." He testified that the knee continued to have stiffness and swelling, however, and that he continued to receive treatment for the right knee after his retirement from service but was told there was nothing that could be done for it. A November 2010 private treatment record reflects the Veteran's history of chronic bilateral knee pain since injuring the knees in 1959 while in service. The Veteran reported that he was pulling cannons and injured his right knee. He added that the next day, the swelling was so bad that he was admitted to the hospital for two weeks because of his "swollen knees." The physician diagnosed severe degenerative arthritis of the right knee and status-post left total knee arthroplasty and reported that the bilateral knee disability dated back to a military injury in 1959. A December 2010 VA examination record reflects the Veteran's history of bilateral knee pain during service. The Veteran reported injuring his right knee in May 1956 while pulling heavy cannons. He explained that the right knee "sort of crunched on me and gave me a lot of pain," that it became swollen a few days later, and that he received treatment for the swelling. He reported intermittent right knee pain and swelling after that but denied any additional medical care with the exception of the 1960 hospitalization for recurrent knee pain and swelling. He added that he believed that he injured his left knee at the same time as the right knee injury, though it did not, "give [him] any trouble until [he] left the military." He reported ongoing intermittent bilateral knee pain six to eight months after discharge from service but indicated that he did not receive medical care until approximately 1988. The examiner noted review of the claims file, reporting a determination that the service treatment records showed no evidence of ongoing medical treatment for the right knee from 1960 until the retirement physical and that the service treatment records were silent for a left knee condition. The examiner added that the post-service medical record was silent for a diagnosis, management, or treatment of a knee condition until 2007. The examiner opined that it was less likely than not that the bilateral knee disability was caused by or related to service. Rather, the examiner found the disabilities were most likely age-related. The examiner explained that the service medical records were silent as to the left knee. The examiner added that the service medical records showed that the knee swelling of unknown etiology in 1960 had resolved and that there was full range of motion and strength in the right knee in 1965 and that although the Veteran reported occasional stiffness in the right knee at separation, there was a lack of chronicity and continuity of care for 36 years after separation. The examiner reiterated the opinion in a February 2011 addendum. The examiner provided another addendum in July 2012. The examiner determined that the left knee disability was less likely than not etiologically related to service. The examiner explained that the service treatment records were silent as to the left knee, clinical examination of the lower extremities was normal at separation, and the condition was not diagnosed until 39 years after service. The examiner found the degenerative joint disease, status-post total knee arthroplasty, was most-likely age related. The examiner further determined that it was less likely than not that the right knee disability was etiologically related to service. The examiner explained that clinical examination of the lower extremities was normal at separation and the condition was not diagnosed until 36 years after service. The examiner found the condition was most likely age-related. The examiner noted that the evidence showed swelling in service. The examiner explained that the records indicated that the swelling cleared without recurrence, complication, or sequelae, however, and that there was no objective medical evidence of medical treatment for a right knee condition from 1960 until January 1971. The examiner also noted that the Veteran reported stiffness at separation. The examiner explained that no diagnosis was provided to support this history, however, and that the clinical examination was normal. The examiner found that the issue could not be resolved without resorting to speculation. Finally, the examiner noted the 2010 private opinion, which linked the disabilities to service. The examiner found the opinion was based solely on the Veteran's subjective complaints and reported medical history and not objective evidence. The June 2013 VA examination record reflects the Veteran's history that his knee problems resulted from his service in France in 1959/60, when his left knee gave out and then a week later his right knee gave out. He explained that he was hospitalized during service for "this reason." He reported that his right knee did not "work as it used to" and sometimes swelled and that his left knee still hurt. The Veteran reported that he believes his knee problems might be a consequence of his Agent Orange exposure. The examiner diagnosed status-post total knee replacement of the left knee secondary to degenerative joint disease and degenerative joint disease of the right knee. The examiner found the bilateral knee disability was not caused by service, to include episodes of left knee bursitis, right knee swelling, right knee stiffness, or myositis of the quadriceps muscle. The examiner explained that there is no medical study, article, or literature that supports any of such nexus. The examiner found the changes in current radiography of the right knee were consistent with aging changes and not suggestive of traumatic arthritis. The examiner explained that advanced age is one of the strongest risk factors associated with osteoarthritis. The examiner added that current medical literature establishes that traumatic arthritis will be established within two years of the traumatic incident and not 47 years later. Finally, the examiner noted that degenerative joint disease is not a conceded condition under the Agent Orange guidelines and therefore the claim of being associated to AO exposure has no face value. The examiner added that the private opinion was not based in any current medical reasoning/common knowledge or literature. Therefore, the examiner found it was a personal opinion based on speculation. Analysis Left Knee Disability Following the review of the evidence, the Board must conclude that service connection is not warranted for the Veteran's left knee disability. Initially, the Board finds the preponderance of the evidence shows that the current left knee disability was not present until more than one year following the Veteran's discharge from service. The service treatment and examination records do not suggest the existence of a degenerative joint disease of the left knee or any other knee disabilty: the record reveals no complaints or definitive findings as to a left knee disabilty. The Board acknowledges that a December 1958 admission record reflects a finding of bursitis. The record documents that the diagnosis was amended to myositis of the quadriceps, however; as such, the Board finds the finding of bursitis at the time of admission for treatment is not persuasive evidence of the existence of a left knee disability during service. The Board further acknowledges that the Veteran has reported injuring his left knee during service and chronic pain, swelling, and buckling of the left knee during and since service and that a private physician has provided an opinion linking the current left knee disability to service based on this history. The Veteran is competent to report pain and swelling during service, and the Board finds the Veteran's histories of pain and swelling of the left knee during service are credible and consistent with the nature of the Veteran's service. The Board finds the Veteran's history of buckling of the left knee during service is not credible. The Board acknowledges that the service treatment records reveal falls during service and that the Veteran is competent to report buckling of the left knee during service. However, the Board finds the current history is less probative than the service treatment records, which do not suggest recurrent buckling of the knee, and retirement examination record which does not reflect a history suggestive of buckling. Although the May 1956 treatment record reflects a history that the "knees gave out," the record indicates that this occurred as part of a fainting episode caused by gastroenteritis and not instability caused by a knee disability. As such, the Board finds the May 1956 treatment record is not per se evidence of instability of the left knee. The Board finds the January 1970 treatment record which reflects treatment for residuals of fall on the elbow, is also not evidence of instability of the left knee. The January 1970 treatment record does not report a history attributing the fall to instability of the left knee, as would be expected, particularly given the Veteran's prior history that his knees gave out in conjunction with treatment for the May 1956 fall. Moreover, the Board finds the current history of chronic left knee symptoms since service is not credible, and thus not probative, based on the absence of a history of left knee symptoms during the retirement examination, though the Veteran reported right knee symptoms, the history provided at the time of treatment in 2007 of left knee pain for approximately 10 years, and the absence of a history of continuity of left knee symptoms prior to 2008, though the Veteran received treatment during the interim. The private physician's opinion is likewise not probative as it is based on the history of symptoms during and since service, which the Board finds lack credibility. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Coburn v. Nicholson, 19 Vet. App. 427 (2006) (the Board may reject a medical opinion if the Board finds that other facts present in the record contradict the facts provided by the Veteran that formed the basis for the opinion). To the extent the Veteran's histories can be interpreted as a report of intermittent left knee symptoms since service, the Board finds the histories are credible. The Veteran is not competent to diagnose a chronic left knee disability manifested by intermittent symptoms as opposed to a distinct episodes of symptoms or even multiple episodes of acute disorder manifested by pain and other symptoms, however, and based on the absence of a diagnosis of a disability until more than 30 years after service and the VA examiners' probative determinations that the current left knee disability is not related to service, the Board finds that the preponderance of the evidence establishes that no chronic left knee disorder was present until more than one year after the Veteran's discharge from service. The preponderance of the evidence also shows that the left knee disability was not caused by service. The Board acknowledges that the Veteran has reported injury of the left knee during service. The Veteran is competent to report this history, and the Board finds it credible and consistent with the nature of his service. The record does not include competent evidence linking the current disability to service, to include the reported injuries, however. VA examiners have provided probative opinions (i.e. opinions supported by a rationale which is consistent with the record) that the left knee disability was not caused by service, to include the reported in-service injury and myositis. There is no contrary medical opinion of record. Although the appellant might believe that his left knee disability is related to service, to include exposure to herbicides, the medical evidence does not corroborate these assertions and the record does not suggest the appellant, who is a layperson, is competent to determine the cause of the left knee disability. As such, the Veteran's assertion of a relationship is not competent evidence of a nexus. Accordingly, service connection is not warranted for a left knee disability. Right Knee Disability Following the review of the evidence, the Board must conclude that service connection is not warranted for the Veteran's right knee disability. Initially, the Board finds the preponderance of the evidence shows that the current right knee disability was not present until more than one year following the Veteran's discharge from service. The service treatment and examination records do not reveal a diagnosis of degenerative joint disease. The Board acknowledges that the service examination records report hospitalization for right knee pain and swelling in 1959/60. Subsequent medical records do not reflect any abnormal findings with respect to the right knee, however, and the Veteran denied chronic pain and swelling or any complication or sequelae during examinations in 1965 and 1968 and did not report pain or swelling during the separation examination, though he did report other symptoms involving the right knee, i.e. stiffness. As such, the Board finds the reported hospitalization for pain and swelling is not probative evidence of a chronic right knee disability. The Board further acknowledges that the service treatment records reveal falls during service. As discussed above, however, the Board finds the treatment records associated with the falls indicate that the falls were not due to instability of a knee. As such, the Board finds the service medical records do not suggest the existence of a right knee disability. Finally, the Board acknowledges that the Veteran reported "occasional" stiffness at separation, that the Veteran currently reports chronic symptoms during and since service, explaining that he did not always seek treatment during service, and that a private physician has linked the current right knee disability to service based on this history. Although the Veteran is competent to report his symptomatic history, the Board finds the current history is not credible, and thus not probative, in light of the earlier histories, i.e. those provided in 2002 and 2007, which date the onset of the right knee symptoms to approximately 1997 at the earliest and which deny persistent problems with the right knee disability during service. Therefore, the private physician's opinion is likewise not probative as it is based on the history of symptoms during and since service, which the Board finds lack credibility. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Coburn v. Nicholson, 19 Vet. App. 427 (2006). To the extent the Veteran's current histories can be interpreted as a report of intermittent right knee stiffness since service, the Board finds the histories are credible. The Veteran is not competent to diagnose a chronic right knee disability manifested by occasional stiffness as opposed to a distinct episodes of symptoms or even multiple episodes of acute disorder manifested by stiffness, however, and based on the absence of a diagnosis of a disability until more than 30 years after service and the VA examiners' probative determinations that the current right knee disability is not related to service, the Board finds that the preponderance of the evidence establishes that no chronic right knee disorder was present until more than one year after the Veteran's discharge from service. The preponderance of the evidence also shows that the right knee disability was not caused by service. The Board acknowledges that the Veteran has competently reported injuring his right knee during service. The Veteran is competent to report this history ,and the Board finds it credible and consistent with the nature of his service. The record does not include competent evidence linking current right knee disability to service, however. VA examiners have provided probative opinions (i.e. opinions supported by a rationale which is consistent with the record) that the right knee disability was not caused by service, to include the reported in-service injury and hospitalization. There is no contrary medical opinion of record. Although the appellant might believe that his right knee disability is related to service, to include exposure to herbicides, the medical evidence does not corroborate these assertions and the record does not suggest the appellant, who is a layperson, is competent to determine the cause of the right knee disability. As such, the Veteran's assertion of a relationship is not competent evidence of a nexus. Accordingly, service connection is not warranted for a right knee disability. ORDER Service connection for a left knee disability is denied. Service connection for a right knee disability is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs