Citation Nr: 1329488 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 04-04 016 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to service connection for a left knee disability, to include as due to an undiagnosed illness. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.M. Seay, Counsel INTRODUCTION The Veteran served on active duty from February 1983 to August 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. FINDING OF FACT A left knee disability did not have its onset in service or within one year of separation from active service and the most competent and probative evidence does not establish a nexus between the disability and any in-service event, injury, or disease. CONCLUSION OF LAW The criteria for service connection for a left knee disability, to include as due to an undiagnosed illness, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1117, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.317 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA has met all statutory and regulatory notice and duty to assist provisions. See 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, 3.326 (2012). The April 2008 letter satisfied the duty to notify provisions, to include notifying the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The April 2008 letter was sent after the initial adjudication of the claim. However, the claim was readjudicated by the November 2009 and November 2012 supplemental statements of the case. Therefore, any defect in the timing of the notice of this information was harmless. Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (VA cured failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating claim and notifying claimant of such readjudication in the statement of the case). The Veteran's service treatment records and VA medical treatment records have been obtained in accordance with the Board's remands. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. VA examinations were conducted in April 2002, February 2007, November 2008, October 2009, and June 2012 to determine whether the Veteran had an undiagnosed illness. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). In a May 2012 remand, the Board found that the February 2007 examination as well as the subsequent addendum opinions were inadequate because none of them provided the requested medical opinions as to the origins or etiology of the Veteran's arthralgias and myalgias. The Veteran was provided a VA examination in June 2012. Although the June 2012 VA examiner provided adequate opinions as to whether the Veteran had an undiagnosed illness related to Gulf War exposures, the examiner did not appear to consider whether the Veteran's left knee disability was directly related to his period of active service. The service treatment records included multiple assessments of left knee sprain. In January 2013, the Board remanded the claim and requested that the Veteran be afforded a new VA examination with respect to his left knee disability. The Veteran was provided a VA examination in June 2013 in accordance with the Board's remand. The examiner responded to the Board's questions and provided an opinion with supporting rationale. The Board finds that the June 2013 examination is adequate. See Barr, id; see also Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). There is no indication in the record that any additional evidence, relevant to the issues adjudicated in this decision, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Legal Criteria Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b). In addition, service connection may also be granted on the basis of a post- service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including arthritis, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In order to establish service connection for the claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of 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 requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service-connected disability compensation may be paid to (1) a claimant who is "a Persian Gulf veteran"; (2) "who exhibits objective indications of chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed in paragraph (b) of [38 C.F.R. § 3.317 ]"; (3) which "became manifest either during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016"; and (4) that such symptomatology "by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis." Signs or symptoms which may be manifestations of undiagnosed illness include, but are not limited to: fatigue, signs or symptoms involving the skin, muscle or joint pain, neurologic signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system, and gastrointestinal signs or symptoms. 38 C.F.R. § 3.317(a), (b); 76 Fed. Reg. 81834 (Dec. 29, 2011). For purposes of this section, a qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): (A) An undiagnosed illness; (B) The following medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms: (1) Chronic fatigue syndrome; (2) Fibromyalgia; (3) Functional gastrointestinal disorder; or (4) Any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness; or (C) Any diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. 1117(d) warrants a presumption of service connection. 38 C.F.R. § 3.317(a)(2)(i) (emphasis added); 76 Fed. Reg. 41696 (July 15, 2011) (later codified at 38 C.F.R. § 3.317(a)(2)(i)(B)(3)). The Veteran's DD Form 214 shows that his awards include the Southwest Asia Service Medal with three bronze stars and Kuwait Liberation medal. Therefore, he is shown to meet the criteria for a Persian Gulf veteran. 38 C.F.R. § 3.317(e). Analysis The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). In the Veteran's claim for compensation and disability benefits, the Veteran reported that he had pain in his elbows, knees, and ankles, due to his Gulf War service. The Veteran was provided a VA spine examination in March 2002. He reported aches and at times pains in his knees, ankle, left elbow, and back. There was no specific history of an injury which he related to the symptoms and stated that the symptoms began coming on a couple of years ago. He stated one time his left knee swelled up while on active duty that takes him back to 1993. He denied any swelling of his knees at the time of the examination. The examination of the knees was interpreted as normal. The Veteran was provided a VA neurological examination in April 2002. The Veteran reported that he was in the Persian Gulf from December 1990 to May 1991 and that he was discharged in 1992. The Veteran stated that he denied ever reporting to the sick bay during his tour of duty in the Gulf War. The onset of the arthralgias seemed to be after his return from the Gulf War sometime between 1991 and 1992. The past medical history listed "left knee arthralgia." In an October 2002 statement, the Veteran's wife stated that the Veteran complained of body aches. The Veteran was provided a VA examination in February 2007. He reported that he was discharged from service in August 1992 and his last duty station was in Germany. He had tours of duty in Saudi Arabia and Iraq during the first Gulf War totaling approximately six months. During that time, he was around well fires, but did not report any specific respiratory complaints, joint pains, rash, nausea, vomiting, diarrhea, or constipation. He first noticed fatigue in 1994 after leaving service and had pain in his elbows and knees. The Veteran was provided a VA examination in October 2009. The Veteran stated that he had several joint pains. He reported arthralgias involving the left shoulder, lower back, right foot, and left hand. The examiner reviewed the claims file, conducted a physical examination, and noted that the Veteran was diagnosed with sleep apnea. The examiner stated that there were no findings suggestive of chronic fatigue syndrome. The examiner opined that there were no current conditions that would be linked to his Gulf War time. The Veteran did not report any significant nausea, vomiting, diarrhea, fever, chills, nocturia, dysuria, hematuria, rash, unexplained arthralgias, myalgias, etc. that either occurred at the time or have persisted. Based on the evaluation, the examiner could not find any medical conditions that could be linked to his Gulf War time. The Veteran was provided a VA examination in June 2012. The Veteran stated that his problem began in both ankles about 10 or 15 years ago when he woke up with pain when walking or flexing them. This was intermittent since then, but occurred on a daily basis. The pain next moved to his knees, more on the left than the right. He had stiffness in knees and pain intermittently as well as swelling intermittently which was not linked to the pain. The examiner noted that review of the VA treatment records revealed that he had degenerative joint disease of the knees and bilateral impingement of the shoulders. The examiner explained that shoulder impingement and AC joint degenerative changes as well as knee joint degenerative changes were common aspects of normal aging and there was no evidence that this process was affected by Gulf War exposures. The Veteran's history was vague and variable about his symptoms, which have never been found to be associated with any observable clinical findings. There was no evidence of any Gulf War syndrome. In an examination specific to his knees, the Veteran reported that he had stiffness in his knees for the past fifteen to twenty years. The Veteran was provided a VA examination in June 2013. The examiner reviewed the claims file. The Veteran reported that he injured his left knee in 1990 while in the service. He stated that he was seen at the field by a doctor and his knee was wrapped and he was given Motrin. The swelling continued and he went to the base hospital in Frankfurt and was told that he had a soft tissue injury to the knee. He was advised to use an ice pack and take Motrin. He stated that his knee pain "persisted over the years." He stated that he had his knee looked at by doctors in 1994 and he was sent to a knee specialist. The knee specialist took X-rays of his knee and saw something on the X-rays but did not discuss it with him. He was not sent to physical therapy. The examiner indicated that the Veteran was seen for left knee pain a few times while in service. The June 2013 physical examination revealed no knee swelling or decreased range of motion. He was able to carry on his day to day and job activities for the most part. The Veteran was diagnosed with degenerative joint disease of the left knee. The examiner noted that the Veteran mentioned that he was seen by a knee specialist in 1994 and that the Veteran reported that knee specialist took X-rays of the knee and he saw something on the X-rays but did not discuss it with the Veteran. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that in his opinion the knee sprain he had during service is not related to his current knee problem which is most likely part of his aging process. Initially, the Board finds that the Veteran is not entitled to service connection for a left knee disability based on his service in Southwest Asia during the Persian Gulf War. See 38 U.S.C.A. § 1117 (West 2002); 38 C.F.R. § 3.317 (2012). The Veteran's complaints are attributed to a diagnosed disorder, degenerative joint disease. Therefore, service connection is not warranted for a left knee disability as due to an undiagnosed illness or chronic multi-symptom illness. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. The Board also finds that direct service connection is not warranted. The medical evidence shows that the Veteran has a current disability. The June 2013 VA examination report reflects a diagnosis of degenerative joint disease of the left knee. The service treatment records show that the Veteran was seen for left knee pain in February 1985. He stated that he twisted his knee during a motor vehicle accident. The assessment was medial/lateral collateral ligament. A June 20, 1990 record indicated that the Veteran complained of left knee edema for two weeks. He stated that he played softball and twisted his knee. The assessment was acute left knee sprain and the Veteran was prescribed bed rest and elevation in addition to using an icepack and medicine. A June 25, 1990 record indicated that the Veteran was seen for follow-up on the left knee. On examination, the left knee was positive for edema, decreased range of motion, and pain on palpation. The Veteran was referred to a doctor. The assessment was listed as muscle strain and to continue therapy. A June 27, 1990 record indicated that the Veteran was seen for his left knee. The left knee was swollen. The assessment was left knee sprain. There is no objective evidence related to the left knee until 2002, approximately ten years after the Veteran's separation from active service. In this case, the Board finds that service connection is not warranted because there is no competent medical evidence relating the Veteran's left knee disability to his period of active service. The June 2013 VA examiner's opinion is considered the most competent and probative evidence of record with respect to the etiology of the Veteran's left knee disability. The examiner reviewed the claims file, noted the evidence in the service treatment records, but provided a negative nexus opinion and an explanation as to the etiology of the Veteran's left knee disability. The examiner opined that the Veteran's disability was most likely due to the aging process. The Board acknowledges the Veteran's opinion that his left knee disability is related to active service. Specifically, the Veteran related his pain to a left knee sprain that occurred during his period of active service. He stated that he was seen in 1994 by a knee specialist and that the knee specialist saw something on the X-rays but did not discuss the findings with the Veteran. However, the objective evidence does not show evidence of degenerative joint disease of the knees until many years later. Therefore, the Board assigns more probative weight to the objective evidence associated with the claims file as opposed to the Veteran's bare assertions regarding 1994 X- ray findings that were not discussed with him. Moreover, the Veteran is not considered competent to diagnose himself with arthritis of the left knee or to provide an opinion as to the etiology of his left knee disability. Such an opinion requires medical expertise which the Veteran does not have. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Board finds more competent the opinion provided by the June 2013 VA examiner regarding the etiology of the Veteran's left knee disability as the examiner noted review of the claims file, examined the Veteran, and provided an opinion with supporting rationale. See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). The Veteran has asserted that he experienced left knee symptoms since his in-service sprain. With respect to his reports of chronic symptoms since service, the Federal Circuit recently held that continuity of symptomatology under 38 C.F.R. § 3.303(b) only applies to those conditions recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran's disability is diagnosed as degenerative joint disease or arthritis and arthritis is recognized as a chronic condition. 38 C.F.R. § 3.309(a). The Veteran has attested to experiencing pain and stiffness since service, which he is competent to do. However, the Board finds that the Veteran is not credible with respect to his reports of continuity of symptomatology and the onset of his pain. During the February 2007 VA examination, the Veteran stated that after returning from service, he first noted fatigue in 1994 and had pain in his elbows and knees. During the March 2002 VA examination, he stated that he had aches and pains in his knees, ankle, and left elbow and the symptoms began coming on a couple of years ago. However, the examination report also noted that: "one time that his left knee swelled up while he was on active duty that takes him back to 1993." Yet, he did not indicate that the symptom of swelling continued. During the April 2002 VA examination, he stated that his body aches and joints fatigue began sometime between 1991 and 1992 (during active service). During the June 2012 VA examination, the Veteran reported that the pain in his ankles began 10 or 15 years ago (after separation from active service) and that the pain next moved to his knees, more on the left than the right. The June 2012 VA examiner commented that the Veteran's history was vague and variable about his symptoms. Conversely, during the examination specific to his knees, the Veteran stated that he had stiffness in his knees for the past fifteen to twenty years (during active service). During the June 2013 VA examination, the Veteran reported that his pain has persisted since the time of his in-service left knee sprain. Although the Veteran is competent to report as to the onset and continuity of his symptoms, the Board does not find the Veteran's statements credible with respect to his reports of continuity of symptomatology. The Veteran has provided inconsistent and unclear accounts of the onset of his symptoms-whether they had their onset during service and continued or whether the symptoms onset after his period of active service. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) ("The credibility of a witness can be impeached by a showing of interest . . . [and] inconsistent statements. . . ."); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (Board can consider bias in lay evidence, conflicting statements of the Veteran, and the significant time delay between the affiants' observations and the date on which the statements were written in weighing credibility). In addition, the June 2013 VA examiner has not related the Veteran's current disability to his period of active service, to include his in-service sprain. Instead, the examiner stated that the Veteran's disability was most likely related to the aging process. Therefore, service connection due to continuity of symptomatology is not warranted. 38 C.F.R. § 3.303(b). Based on the discussion above, the Board finds that service connection for a left knee disability is not warranted because the most probative evidence of record does not show continuity of symptoms since service or a nexus to an injury, event, or disease occurring in service. In addition, presumptive service connection is not warranted because the evidence does not establish a diagnosis of arthritis that manifested to a degree of 10 percent or more within a year after the Veteran's separation from active service. 38 C.F.R. §§ 3.307, 3.309. The Veteran has reported that he was told that he was sent to a knee specialist in 1994 and that the specialist saw something on the x-rays but did not discuss the findings with the Veteran. The claims file does not contain any x-rays from 1994 and there is no x-ray evidence of degenerative joint disease or arthritis of the left knee until years later. Therefore, presumptive service connection is not warranted. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection. Because the preponderance of the evidence is against the Veteran's claim, the benefit-of-the- doubt provision does not apply. 38 U.S.C.A. § 5107(b). Service connection for a left knee disability is not warranted. ORDER Entitlement to service connection for a left knee disability, to include as due to an undiagnosed illness, is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs