Citation Nr: 1328313 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 11-06 854 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES Entitlement to service connection for bilateral knee osteoarthritis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Devon Rembert-Carroll, Associate Counsel INTRODUCTION The Veteran had active service in the Air Force from December 1963 to December 1967. The matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Manila, Philippines which denied service connection for bilateral knee osteoarthritis. The Veteran asserts that he filed an earlier claim for service connection for bilateral knee osteoarthritis which was denied in 1995. The Veteran's claims file has been re- built and there is no record of this rating decision. There is no way of determining whether the Veteran timely appealed the noted adverse determination. As such, the Board will conduct a de novo review of the claim since there is no persuasive evidence of a 1995 RO rating decision being final. The Board also notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. The Board notes that the Veteran has raised a claim of compensation under the provisions of 38 U.S.C.A. § 1151 (West 2002). This issue is not rip for appellate review and is referred to the RO for appropriate actions. FINDINGS OF FACT Bilateral knee osteoarthritis did not manifest in service or within one year of separation from active service, and there is no probative evidence linking postservice bilateral knee osteoarthritis to service. CONCLUSION OF LAW Bilateral knee osteoarthritis was not incurred in or aggravated by service, nor may it be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The notice requirements regarding substantiating the claim for service connection for bilateral knee osteoarthritis were accomplished in a letter sent in June 2009 prior to the initial adjudication of the Veteran's claim. The letter also provided notice of the type of evidence necessary to establish a disability rating and effective date for the claimed disabilities under consideration, pursuant to Dingess/Hartman v. Nicholson, 19 Vet App 473 (2006). VA also has a duty to assist the Veteran in the development of a claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Here, the claims folder is a rebuilt file. The claims file does not contain all of the Veteran's service treatment records despite several attempts by the AOJ/RO to obtain them. In November 2009 he was also notified by the VA Records Management Center that his service treatment records could not be located. In May 2010, the RO informed the Veteran that his original claims folder could not be found and that he could provide proof of his military service indicating a service number, active duty dates and the organization he belonged. In response, in July 2010 the Veteran provided the information that he had access to including his DD-214, Honorable Discharge, and in-service immunization record. Additionally, in multiple letters in 2009, the Veteran was informed of the type of evidence that he could submit to support his claim. For example, he was told that he could submit statements from himself, witness lay statements, statements from doctors, and reports from hospitals, medical facility, laboratory reports, physical therapy, etc. Through the Veteran's action it is clear that he had knowledge that he could submit alternative forms of evidence to support his claim. In this regard, he has submitted medical articles, lay statements from his wife and himself, as well as a statement from his private doctor. He also identified various facilities which he claims to have treated him for his knee complaints after service. Therefore, the Board finds that VA Adjudication Procedure Manual, Manual M21-1, Part III, Paragraph 4.25(c) (July 12, 1995) has been in essence satisfied. To the extent that it has not, the Board finds that the Veteran has not been prejudiced given the various evidentiary submissions he has made in connection with substantiating his claim. Additionally, the Board, for the purpose of this decision, does not dispute that the Veteran have experienced some type of knee pain and swelling while he was in service around 1963/1964. Additionally, the VA examiner in giving his opinion has also considered the Veteran's report of pain and swelling in service. The Board concludes that all procedures to obtain any missing service treatment records were correctly followed. Since all efforts have been exhausted, further attempts would be futile. 38 C.F.R. § 3.159(c)(2), (3). The Board is aware that in such situations, it has a heightened obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Other information and evidence associated with the claims file consist of the Veteran's statements, post-service VA and private treatment records, a statement from his wife, a statement from a private physician, and numerous internet articles. The RO also made numerous attempts to obtain post-service treatment records from facilities identified by the Veteran. He was notified of those facilities which reported that they had no records. The Veteran was provided with a VA examination, to include an opinion, in May 2010. The Board finds that the VA examination report and opinion were adequate because the examiner conducted a clinical evaluation, reviewed the Veteran's medical history, and described the bilateral knee osteoarthritis in sufficient detail so that the Board's evaluation is an informed determination. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board thus finds that all necessary development has been accomplished and appellate review may proceed. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. Establishing service connection generally requires (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) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and/or third element is through a demonstration of continuity of symptomatology. See Savage v. Gober, 10 Vet. App. 488 (1997). 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. Id. at 495- 96. The Board does point out, however, that in Walker v. Shinseki, 708 F.3d 1331 (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 under 38 C.F.R. § 3.309(a). Service connection may be awarded for a chronic condition when: (1) a chronic disease or disability manifests itself and is identified as such in service (or within the presumptive period under 38 C.F.R. § 3.307) and the Veteran currently has the same condition; or (2) a disease manifests itself during service (or during the presumptive period) but is not identified until later, there is a showing of continuity of symptomatology after discharge, and the medical evidence relates that symptomatology to the Veteran's present condition. See Savage v. Gober, 10 Vet. App. 488. 495-98 (1997). Where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest 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 in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376, 1377 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. Background The Veteran contends that his current bilateral osteoarthritis is due to his active duty service. The Veteran reported in a May 2009 statement that while in basic training and subsequently Air Police training his knees swelled up to the size of grapefruits. He reported that he sought medical attention and was told to use ace bandages and aspirin for the swelling and pain. The Veteran reported that he was able to complete basic training with the use of the bandages and aspirin. The Veteran stated that upon unit assignment his knees seemed fine for the duration of his service. He also stated that the knee pain returned in 1995. In a December 2009 statement the Veteran reported that he was assigned to Kitchen Police for five weeks and was required to stand for 12 hours a day, 6 days a week. The Veteran also stated that the eight weeks of Air Police training included intense hand to hand combat and other intense physical training. Additionally, the Veteran stated on several occasions that he was never in an accident before service and did not play high school sports. As stated, it appears that some of the Veteran's service treatment records are missing. Those of record show that the Veteran's enlistment Report of Medical History is negative for any complaints or diagnoses of knee pain. The examiner did note that the Veteran had an incise wound on his left knee as a result of a laceration at age nine that required stitches. Post-service private medical records dated March 2002 to February 2004 show that the Veteran was treated for knee pain and diagnosed with bilateral knee osteoarthritis. A May 2009 statement from a private doctor relates that the Veteran reported that he had bilateral knee pain on and off for 14 years and relieved the pain with pain reliever, rest, and bandages. The physician noted that the Veteran reported that he suffered from knee joint pain and swelling back in 1964 after marching several days during his training. On physical examination of the knees, there was noted tenderness on extension with limitation of movement. There was noted creptic on the right knee joint. Bilateral X-rays revealed symmetry of the joint space on both sides, sclerosis of the opposing medial condyles bilaterally, marginal lippings in the tibial and femoral condyles and posterior patella on both sides. There was no evidence of fracture. The physician diagnosed osteoarthritis and noted it was probably senile osteoarthritis. In a June 2009 statement the Veteran reported that he worked as an outside salesman after service. The Veteran stated that walking was essential to his employment. He also reported that he became unemployable in 2008 because of his knees. In June 2009 the Veteran also submitted internet printouts, as named above. These printouts related traumatic knee injuries to osteoarthritis. Several printouts including "Ask an Expert: Joint Trauma and Arthritis", "Is it Common for Arthritis to Develop After Trauma, Accident, or Sports Injury?", and "Can Trauma to a Joint Cause Arthritis?", reveal that it can take years for osteoarthritis to develop after knee trauma. The Veteran also submitted a lay statement from his wife dated November 2009. The Veteran's wife stated that in the four years she and the Veteran have been together his knee conditioned had worsened. The Veteran's wife reported that the Veteran had trouble sitting, walking, and standing. She also reported that the Veteran becomes very fatigued because of his knee pain. The Veteran was afforded a VA Compensation and Pension examination in May 2010. The examiner opined that the Veteran's bilateral knee osteoarthritis was not caused by or a result of knee pains while in service. The VA examiner noted that the Veteran made no mention of any significant or major injury or trauma to his knees, such as sports injuries, falling, automobile or motorcycle accidents, or the like in service. The examiner stated that this was significant because in orthopedic cases, such as traumatic antropathy, the patient's age at the time of injury is very vital. The examiner stated that the patient was 17-21 years old during his military service and unless there was a major disruption of the knee joint at this age the regular daily rigors of military life could not account for severe osteoarthritis later in senior life. The examiner also stated that this was due to the fact that younger individuals who are engaged in strenuous activities such as sports, marching, or jogging invariably have a rapid rate of cartilage repair and regeneration than older individuals doing the same type of strenuous activities. The examiner stated that there were several other factors that could have lead to the Veteran's bilateral knee osteoarthritis. The examiner noted that the Veteran's civilian job was in sales which entailed a lot of walking and driving. The examiner also noted that the Veteran began complaining of significant knee pains at the age of 49. The examiner opined that it was possible that the Veteran's current knee pain, at an older age, when wear and tear are more pronounced since the rate of cartilage repair diminishes as one gets older, was due to or caused by his job as a salesman. The examiner noted that the Veteran was 21 at the time of discharge and 22 the following year when the presumptive time for any chronic knee condition to manifest is still allowable. The examiner stated that at this age a patient's knees are expected to be sound and well-regenerated. The examiner concluded that the fact that the Veteran was able to work as a salesman until 1995 is proof that the Veteran's knees were normal upon his discharge from the military. The examiner stated that if the Veteran's knees were not normal the Veteran would not have been able to work as a salesman all those years. The examiner opined that another possible cause of the Veteran's bilateral knee osteoarthritis was the Veteran's diabetes which was diagnosed in 2002. The examiner noted that patients with diabetes are known to have accelerated degenerative osteoarthritis. Finally, the examiner noted that degenerative ageing is the most common cause of degenerative osteoarthritis and the May 2009 private physician confirmed this by diagnosing the knees as senile osteoarthritis. Analysis The Board reiterates that it appears that some of the Veteran's service treatment records are missing. The service treatment records associated with the file are unrelated to the Veteran's bilateral knee osteoarthritis and they reflect neither an in-service injury nor treatment of such injury. Accordingly, the only evidence available regarding the Veteran's in-service symptoms are his own statements. As noted, the Veteran is competent to attest to factual matters of which he had first-hand knowledge. There is no evidence of record which contradicts the Veteran's reported in-service symptoms and medical treatment, and therefore the Board finds them to be credible. Accordingly, there is competent and credible evidence that the Veteran experienced pain and swelling of his knees during training while in service. Additionally, the Board finds that there is competent medical evidence that the Veteran has a current diagnosis of bilateral knee osteoarthritis. As such, the only issue unresolved in this case is whether the Veteran's in-service knee pain and swelling is related to his current bilateral knee osteoarthritis. First, the Board has considered whether presumptive service connection for chronic disease is warranted. Under 38 C.F.R. § 3.309(a), arthritis is regarded as a chronic disease. However, in order for the presumption to operate, such disease must become manifest to a degree of 10 percent or more within 1 year from the date of separation from service. 38 C.F.R. § 3.307(a)(3). The evidence of record fails to establish any clinical manifestations of bilateral knee osteoarthritis within the applicable time period. By his own admission, the Veteran's knee pain did not begin until 1995 and there is no evidence that he had any problems with his knee prior to that time. As such, the criteria for presumptive service connection on the basis of a chronic arthritis disease have not been satisfied. With respect to service connection on a nonpresumptive bases, the Board finds that the opinion of the May 2010 VA physician, an orthosurgeon consultant, is persuasive and probative evidence against the claim for bilateral knee osteoarthritis because the opinion is based on a review of the claims file and supported by an articulated medical rationale that is consistent with the record. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 302 -04 (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value to a medical opinion). The examiner provided a detailed rationale for why the Veteran's bilateral knee osteoarthritis was not related to service. He discussed the significance of the Veteran not reporting knee trauma in service, acknowledged the Veteran's daily rigors pertaining to his knee, including the Veteran's assertion of knee pain and swelling, and provided other likely causes for the Veteran's disability based on the Veteran's profession, age, and diabetes mellitus diagnosis. The opinion was also based on medical principles as it relates to the knee and the Veteran's age and activities of service versus his activities many years of service and his subsequent complaints of knee pain. The Board finds this opinion as credible because it is also consistent with the Veteran's report that following being treated with aspirin for pain and bandages he completed his training and that for the duration of his service he did not have any problems with his knees. See May 2009 statement from Veteran. The Board has considered the Veteran's lay statements that relate the Veteran's current bilateral knee osteoarthritis to his period of service. While a layperson is competent to testify to observable symptoms, a layperson is not competent to provide evidence that the observable symptoms are manifestations of chronic pathology or a diagnosed disability unless such a relationship is one in which a layperson's is competent to opine There is no indication in the record that the Veteran is competent to render a medical opinion as to the relationship between in-service knee pain and swelling and his current bilateral knee osteoarthritis diagnosed many years after service. With regards to the wife's November 2009 statement, the Board points out that even if the wife were competent to relate the Veteran's bilateral knee osteoarthritis to service, the statement only discusses the current condition of the Veteran's knees. Finally, the Board acknowledges that the Veteran submitted several internet printouts, as previously named, regarding knee trauma and osteoarthritis. The internet printouts simply provide generic statements relating knee trauma to osteoarthritis. However, as stated, the Veteran has not asserted in-service knee trauma as discussed in the articles. He has reported having pain and swelling after marching during training in service. Therefore, the internet printouts relating knee trauma to osteoarthritis later in life are not probative in supporting the Veteran's claim. The articles do not tend to suggest that the Veteran's circumstances of service resulted in his current osteoarthritis. Taking into consideration the Veteran's specific history, the competent and probative medical evidence of record has affirmative found that there was no connection between the circumstances of his service and the Veteran's current diagnosis of osteoarthritis. This opinion was based in a complete and persuasive rationale. In summary, the preponderance of the evidence is against the Veteran's claim. The benefit-of-the-doubt doctrine is therefore not applicable, and the claim for service connection for bilateral knee osteoarthritis must be denied. See 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. at 55-57 . ORDER Service connection for bilateral knee osteoarthritis is denied. ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs