Citation Nr: 1329011 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 09-23 655 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a bilateral knee disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1956 to January 1958. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran testified at a hearing at the RO before a Decision Review Officer (DRO) in March 2011. The Veteran testified at a Travel Board hearing at the RO before the undersigned Veterans Law Judge of the Board in July 2012. Transcripts of these hearings have been associated with the claims file. The case was before the Board in September 2012 and March 2013, and remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his appeal. Most recently the claim was remanded in May 2013 for development including obtaining outstanding VA and private treatment records and affording the Veteran a new VA examination. The Veteran's most recent VA treatment records were obtained and associated with the claims file. The Veteran did not respond to a May 2013 request from the Appeals Management Center to provide information regarding private treatment providers. The Veteran was afforded a VA examination in August 2013. Therefore, the Board finds that there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT A bilateral knee disorder is not shown to be due to a disease or injury in-service or to any incident of military service. CONCLUSION OF LAW The criteria for the establishment of service connection for a bilateral knee disorder are not met. 38 U.S.C.A. §§ 1101, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The notice requirements were met in this case by letters sent to the Veteran in March and July 2007. These letters advised the Veteran of the information necessary to substantiate his claim and of his and VA's respective obligations for obtaining specified types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). These letters also advised the Veteran of how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). During the July 2012 Board hearing the Judge explained the issues on appeal and asked questions designed to indicate the submission of evidence that the Veteran may have overlooked. These actions provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(2) and consistent with the duty to assist. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). The Veteran could also be expected to understand these elements based on a reading of the VCAA letter discussed above. Neither the Veteran nor his representative has identified any prejudice in the conduct of the Board's July 2012 hearing or contended that the Veteran does not fully understand the issues or the evidence that is required to substantiate his claim. The Veteran has not alleged that VA failed to comply with the notice requirements of the VCAA, and he was afforded a meaningful opportunity to participate effectively in the processing of his claim, and has in fact provided additional arguments at every stage. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The notice required by 38 U.S.C.A. § 5103(a) should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). That was done in this case. The Veteran's service treatment records are not available. After a complete search, the National Personnel Records Center (NPRC) reported in May and September 2007 that the record may be "fire-related;" there were no service treatment records or Surgeon General Officer's reports on file; and all or part of the service treatment records could not be reconstructed. In situations where the service records are incomplete, lost or presumed destroyed through no fault of the veteran, VA has a heightened duty to assist in the development of the case, as well as a heightened obligation to explain findings and conclusions and to consider carefully the benefit-of-the-doubt doctrine. See Marciniak v. Brown, 10 Vet. App. 198, 200 (1997), citing O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The RO subsequently requested the NPRC conduct a search for sick/morning reports for the US Army Hospital from March 1, 1957 to July 1, 1957. In response, the NPRC located one treatment record for a sore throat. The NPRC also reported that if the Veteran was hospitalized, he must provide the unit, company designation, and month. During the March 2011 DRO hearing, the Veteran testified that he was hospitalized at an Army Hospital in Stuttgart, Germany. See the hearing transcript, pages 11-12. In September 2012 the RO requested inpatient clinical records from March 1, 1957 to July 31, 1957 for the Army hospital in Stuttgart, Germany. In October 2012 the NPRC responded that it was unable to provide clinical records. Most Army clinical records prior to 1960 were filed in the area which was burned in 1973. The Veteran was notified in November 2012 that his records were unavailable, but that he could submit additional documentation. The VA did obtain and associate with the claims file VA and private treatment records. Accordingly, the Board finds the duty to assist with obtaining treatment records has been met. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Veteran was afforded a VA medical examination in January 2013, with an addendum opinion provided in April 2013, and August 2013 for his knee claim. These opinions were rendered by medical professionals following a thorough examination and interview of the Veteran and review of the claims file. The examiners obtained an accurate history. The examiners provided a detailed conclusion for the opinions that were reached. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the foregoing, all relevant facts have been adequately developed to the extent possible; no further assistance to the Veteran in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Service Connection The Veteran alleges that an in-service fall at some point between 1956 to 1958 caused his bilateral knee arthritis, for which he began medical treatment in 2008. Service connection will be denied because the preponderance of the competent evidence is against a finding that arthritis is related to the alleged in-service fall. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. 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). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder on a direct basis, generally there must be probative 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 Hickson v. West, 12 Vet. App. 247, 253 (1999). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a 'competent' source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. Layno v. Brown, 6 Vet. App. 465 (1994). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when 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); (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. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. In certain instances, however, lay evidence has been found to be competent with regard to a disease with 'unique and readily identifiable features' that is 'capable of lay observation.' See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the 'authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence'). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran alleges that he injured his knees during an active service training exercise, when he was struck by a moving tank gun turret. See March 2011 DRO hearing transcript and July 2012 Travel Board hearing transcript. He reported that he then had hairline fractures in the knees and was treated during service. See id. At his March 2011 DRO hearing the Veteran testified that he was treated at the Army hospital in Stuttgart, Germany. The Veteran reiterated this testimony at his July 2012 Board hearing and testified that he received treatment "on and off" following separation from service - as noted above, however the Veteran has declined the Board's most recent request to provide the names and addresses of the medical care providers who treated him. The medical evidence reflects that the Veteran was initially treated for and diagnosed with a bilateral knee disability in December 2008, when he was diagnosed with end stage osteoarthritis of the bilateral knees by a private physician. Private treatment records from December 2008 to August 2009 also reflect that the Veteran was diagnosed with end stage osteoarthritis of the bilateral knees, osteoarthropathy of the right knee, right knee osteoarthritis, and status post right knee arthroplasty with intact prosthesis in adequate anatomic alignment. These records also reflect he underwent a right total knee arthroplasty in January 2009. At a January 2013 VA examination, the Veteran was diagnosed with degenerative joint disease of the bilateral knees. The examiner opined that the claimed condition was not likely to have been incurred in or caused by the claimed in-service injury, event or illness. He explained that there was no service treatment record evidence of knee problems, and noted that there was no medical evidence that the Veteran sought medical attention after service for over 30 years. In the March 2013 remand, the Board found this VA examination was not sufficient. The Board observed that the examination did not consider the Veteran's account of his in-service injury or the lay statements of other individuals alleging the injury. In an April 2013 VA addendum, the examiner the January 2013 VA examiner stated that he reviewed the claims file and noted that there was no indication in the records of an injury while the Veteran was on active duty. The examiner noted there was no medical documentation from 1958 until 2008, when the Veteran sought medical attention for his knees, which was 50 years after discharge from active service. He also found that there was no medical evidence that the Veteran developed chronic knee problems after service. The examiner found no evidence that indicated that the Veteran's active service led to his knee problems. The examiner noted that the Veteran indicated in his claim that he was injured while on a "combat mission." However, this observation and the examiner's observation that the Veteran was not part of a combat mission is of no probative value as the Veteran has not alleged that he is a combat veteran, nor does the record suggest that he is a combat veteran. As was discussed in the May 2013 Board remand, this opinion was insufficient as the examiner did not take into account the Veteran's statements of his in service knee injuries. The Veteran was also afforded a VA examination in August 2013. He again reported injuring his knees in service when he fell in service. He did not recall any specific treatment and he did not have surgery or a cast. However, and apparently contrary to his report of having periodic treatment, he reported no treatment until December 2008. Notably as it suggests a functional capacity since service, his post service occupations included working in construction, as a carpenter, and a chemical plant operator. In addition to performing an examination, the examiner also reviewed the buddy statements of the Veteran's friends and family. The Veteran was diagnosed with osteoarthritis of the bilateral knees that was age related. The examiner opined that it was less likely than not that the Veteran's bilateral knee disorder was related to service. The examiner's rationale was that although the Veteran reported a knee injury in service, it appears to have resolved without residuals. The Veteran was 74 years old when he first sought treatment or evaluation for his knees post service. The examiner further opined that if the Veteran had sustained a significant injury in service it would have required some type of ongoing treatment over the years. It is possible for sedentary people to develop osteoarthritis in their knees and the Veteran actually worked at moderate to heavy activity for years without complaints. Lay statements have also been provided by the Veteran's brother in September 2007 and August 2013, his wife in October 2007 and a fellow service member in August 2009, in which they reported remembering that the Veteran had injured his knees while on active service, that he currently had problems with both knees and that he had knee problems in the past. The Board has considered the statements of the Veteran, his friends, and family that his current bilateral knee disorder is the result of an in service injury and that his current symptoms, including knee pain, trouble standing, and swelling. The Veteran and his friends and family are competent to report observable symptoms, including knee pain, trouble standing, and swelling. Layno v. Brown, 6 Vet. App. 465 (1994). While competent to discuss symptoms, the Veteran is not then competent to diagnose osteoarthritis of the bilateral knees and relate it to service. Even were the Board to assume that the Veteran sustained a fall in service as he has alleged, the preponderance of the probative evidence of record shows that the Veteran's bilateral knee disorder is not related to service - claim is being denied on the basis of a lack of nexus between the current disorder and service. As noted, although lay persons such as the Veteran are competent to provide opinions on some medical issues, see Kahana, supra. diagnosing and determining the etiology of osteoarthritis falls outside the realm of common knowledge of a lay person. See Jandreau, supra. In this case, given the Veteran's lack of medical expertise, his assertions that he currently has a knee disorder that is related to service are beyond his competence. These statements are greatly outweighed by the August 2013 VA examiner's opinion that the Veteran's bilateral knee disorder is not related to service. Accordingly, the preponderance of the evidence is against the claim for service connection and the benefit of the doubt rule does not apply. See 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). ORDER Entitlement to service connection for a bilateral knee disorder is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs