Citation Nr: 1329496 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 08-38 868 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to service connection for a bilateral knee disability. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1960 to September 1960, with subsequent periods of active duty for training and inactive duty for training ending in September 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). In February 2010, the Veteran testified before the undersigned Veterans Law Judge, sitting in Winston-Salem, North Carolina. A transcript of that proceeding has been prepared and incorporated into the evidence of record. This claim was previously before the Board and remanded for further development in May 2010, March 2012, February 2013, and June 2013. That development having been completed, this claim is once again before the Board. Additionally, with regard to the right knee disability, it appears via the submission of the Veteran's April 2013 and July 2013 statements that he is asserting that only his left knee is related to the stated in-service injury and that his right knee injury may be related to his occupation as a police officer. As evidence that would have been dispositive of that fact was unable to be obtained, i.e. the Police Pension Fund in Albany, New York, as well as the fact that the Veteran has been supporting a claim of bilateral knee service connection and the fact that the Veteran has not requested to cease his claim for a right knee disability, the Board will proceed with the adjudication of a bilateral knee disability accordingly. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDING OF FACT The evidence of record fails to demonstrate a causal relationship between the Veteran's bilateral knee disability, to include osteoarthritis, and his military service. CONCLUSION OF LAW The criteria for service connection for a bilateral knee disability, to include osteoarthritis, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). This notice must be provided prior to an initial RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). VCAA notice requirements apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The Veteran received complete VCAA-compliant notice, to include the disability-rating and effective-date elements of a service connection claim in letters dated April 2007, February 2011, and July 2011. The Veteran has not shown any prejudice in regard to the timing or content of the notice provided. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). VA's duty to assist the Veteran has also been satisfied. 38 U.S.C.A. § 5103A (b), (c); 38 C.F.R. § 3.159(c)(1)-(3). The Veteran's service treatment records (STRs) private treatment records, and VA treatment records have been obtained and associated with the claims file. The duty to assist also includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, VA medical records and relevant Social Security Administration (SSA) records. 38 C.F.R. § 3.159(c)(2); Golz v. Shinseki, 590 F.3d 1317, 1321- 23 (Fed. Cir. 2010). In February 2013, the RO attempted to obtain the Veteran's SSA records, but per a correspondence dated March 2013, the SSA indicated that no such records were available. The Veteran was notified of this finding in a March 2013 letter in which he was requested to provide any records in his possession. The Veteran responded in an April 2013 statement that the SSA records would have been for his right knee and not his left knee. He further provided that the Police Pension Fund in Albany, New York would have records of his disabilities. The Veteran did not provide any further records from either SSA or the Police Pension Fund in Albany, New York. The Veteran was provided with a VA examination in April 2012. The examination was adequate because it contained a history obtained from the Veteran and thorough examination relevant to the applicable rating criteria. There is no indication in the record that additional evidence relevant to the issues decided herein is available and not part of the claims file. See Pelegrini, 18 Vet. App. at 121-22. The Veteran has also been afforded a hearing before the Board. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires the hearing officer who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked. Here, the presiding Veterans Law Judge identified the issues to the Veteran and asked specific questions directed at identifying whether the Veteran met the criteria for service connection for a bilateral knee disability, and the Veteran volunteered his subjective symptoms and employment history during the period under consideration. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. The hearing focused on the elements necessary to substantiate the claim on appeal, and the Veteran provided testimony relevant to those elements. As such, the Board finds that there is no prejudice in deciding the claim at this time and no further action pursuant to Bryant is necessary. In May 2010 the Board remanded the claim for corrective notice regarding new and material evidence for a claim to reopen, which has been provided. In March 2012, the Board remanded the claim for a VA examination, which was obtained in April 2012. In February 2013, the Board remanded the claim in order to obtain any outstanding SSA treatment records, but such records were unavailable as discussed above. In June 2013, the Board remanded the claim in order to obtain any outstanding treatment records from the Police Pension Fund in Albany New York, however, the Veteran did not submit a records release authorization or provide any related records upon request. The Board finds on review that the RO substantially complied with the requirements articulated in the Board's remand. D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141, 146- 47 (1999). The Veteran has not made the Originating Agency or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and neither has argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced the appellant in the adjudication of his appeal. Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issue to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Therefore, the Board finds the duties to notify and assist have been satisfied and will proceed to the merits of the Veteran's appeal. Legal Criteria Under the laws administered by VA, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110 , 1131 (West 2002); 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d) . Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). Service connection may also be granted for chronic disabilities, such as osteoarthritis, if such are shown to have been manifested to a compensable degree within one year after the Veteran was separated from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. As an alternative to the nexus requirement, service connection for these chronic disabilities may be established through a showing of continuity of symptomatology since service. 38 C.F.R. § 3.303(b) (2012). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Here, the Board notes that the Veteran's diagnosed osteoarthritis of the knees are subject to service connection based upon continuity of symptomatology under 38 C.F.R. § 3.309(a). In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's treatment records, and all pertinent medical and lay evidence. See 38 U.S.C.A. § 1154(a) (West 2002 and Supp. 2012). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). 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, the evidence submitted by the Veteran or on her behalf. 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 claims. 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). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Background The Veteran contends that he developed knee arthritis due to repeated knee injuries during his field training during his 33 years of Reserve service. He reported that he developed bilateral knee arthritis that has necessitated bilateral knee surgeries and right knee replacement. He reported in the April 2003 notice of disagreement that arthritis was contributed to by the many times he had to sleep on the ground while in the field for camps throughout the years. He also discussed having to pick up many heavy items over the years in the Reserves. In his May 2008 notice of disagreement, the Veteran indicated that he fell and hurt his knees many times during service, but that he would just continue the mission without complaining. In an April 2013 statement, the Veteran indicated that his left knee was the one injured in the accident in which he fell down the stairs in service. In a July 2013 statement, the Veteran appeared to indicate that it was only his left knee that was injured in the military and that his right knee was not. He further indicated that records from the Police Pension Fund in Albany, New York would support this, thereby indicating that his right knee was possibly injured during his duties as a police officer and not in the military. At his February 2010 Board hearing, the Veteran testified that he fell down stairs after being pushed by another sergeant while he was on active duty. The Veteran stated that it was about 12 years ago (approximately 1998). The Veteran also stated that since that time he has had 3 knee replacements and 7 total surgeries. With respect to the Veteran's service treatment records, numerous in-service examination reports from February 1960 through February 1991 do not show any knee complaints or clinical abnormalities. Numerous in-service medical history records from February 1960 through September 1996 reflect that the Veteran reported no past or current knee disabilities. An August 1997 annual medical certificate notes that the Veteran had surgery for bilateral meniscus tear in April 1997, but did not indicate that this was incurred while on duty status. It notes that the Veteran had been released to unrestricted physical duty. An August 1997 service treatment record notes that a letter was sent requesting a discharge summary from knee surgery and asking the Veteran to report to physical examination section for doctor's review. A November 1997 service treatment record notes that the Veteran was doing well recently following arthroscopy of the knees. A February 2002 VA examination report diagnosed status post operative chondromalacia of the bilateral knees with x-ray evidence of degenerative joint disease. The Veteran reported that he suffered a fall while in the Air Force 2 years ago, and he has had residual pain in his bilateral knees ever since. (The Board notes that a June 2000 service treatment record reflects that the Veteran stepped backwards and fell to the ground hitting his buttocks on the floor.) He reported having had surgery twice on the right knee and once of the left knee for meniscus tears and chondromalacia. A review of the Veteran's private treatment records shows that he has been continually treated for complaints related to a bilateral knee disability since approximately 1994. In 1997, the Veteran underwent a bilateral knee arthroscopic debridement. In October 2000, the Veteran was diagnosed with bilateral tricompartmental osteoarthritis in his knees. In January 2001 the Veteran underwent an additional bilateral knee arthroscopic debridement. An October 2003 record from a private physician notes that the Veteran injured his right knee in a fall. It notes that he has had some knee difficulty before. In September 2004, the Veteran has seen for chronic right knee pain and diagnosed with arthritis. It was noted that he had participated in physical therapy approximately 1 year earlier. An October 2004 private EMG/nerve conduction study report notes that the Veteran reported pain behind his right knee. In November 2004, the Veteran was diagnosed with bilateral osteoarthritis in his knees. It was noted that the Veteran had received knee surgery about 8 to 10 years earlier (approximately 1994-1996). In February 2006, the Veteran received his first total left knee arthroplasty. In September 2006, the Veteran was seen for stiffness in his left knee status post knee replacement. In December 2006, the Veteran received a left total knee revision to correct a previous failed total knee replacement from 1 year earlier. Treatment records in early 2007 reflect follow-up appointments that assessed the left total knee revision. In April 2008, the Veteran was seen for complaints of pain and a failed left total knee arthroplasty. In August 2008, the Veteran received another left total knee arthroplasty. In February 2009, the Veteran was seen reporting pain and stiffness status post left total arthroplasty and revision. In August 2009, the Veteran was seen reporting poor range of motion status post left total knee arthroplasty with patella baja. In April 2011, the Veteran was seen reporting pain and stiffness status post left total arthroplasty and revision. A VA examination was conducted in April 2012. At the examination, the Veteran reported that he injured his knees in service when he fell on some steps in 1980. The Veteran stated that he did not seek treatment for his injury and that it resolved within a week. He reported that he began to experience symptoms in his knees in 1995. The Veteran indicated that he received a meniscectomy around that time and then a total knee replacement in the left knee in 2006, with 3 subsequent total knee replacements, the last being performed in 2010. Upon conducted an objective examination and reviewing the Veteran's claims file, the examiner diagnosed the Veteran with right knee osteoarthritis, status post surgical meniscectomy with residual scars and left knee osteoarthritis, status post surgical total knee replacement with residual scars. The examiner found that osteoarthritis in the bilateral knees was not diagnosed or treated during military service. Further, the examiner found that osteoarthritis in the bilateral knees is not caused or permanently aggravated by the Veteran's military service. Last, the examiner found that osteoarthritis in the bilateral knees is not caused or permanently aggravated by the Veteran's history of a fall during the active duty in 1980. In support, the examiner provided that there was no indication of a knee condition while on active duty in the STRs as well as the fact that the separation examination of August 29, 1960 showed no documentation of a knee condition. The earliest indication of symptoms of a knee disorder did not appear until 1995, nearly 15 years after the alleged accident on the steps. Furthermore, the examiner noted that osteoarthritis in the knee joints is natural age-related progression of the disease and not caused or permanently aggravated by military service. The examiner noted that the Veteran also worked for 21 years as a police officer and sustained injuries to his ankles and knees in the course of those duties. It was the examiner's opinion that the police service was a major contributing factor the Veteran's current knee disabilities. Analysis Based upon the evidence of record, the Board finds that the preponderance of evidence is against the Veteran's claim of entitlement to service connection for a bilateral knee disability, so the appeal must be denied. The evidence shows that there is a current disability, based upon the Veteran's diagnoses of bilateral knee tricompartmental osteoarthritis. The Board finds that there is also evidence of an in-service injury of a fall down some steps during a period of active service, as shown by the Veteran's competent and credible lay statements. The Board finds that the statements provided in this regard are competent and credible testimony regarding the occurrence of the Veteran's injuries in service. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (2006) (noting that the Board must determine whether lay evidence is credible due to possible bias, conflicting statements, and the lack of contemporaneous medical evidence, although that alone may not bar a claim for service connection); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). The Veteran is competent to testify about his accident in service because it is within the realm of his personal knowledge from first-hand experience. Further, the Board finds that the Veteran is credible, as his statements are consistent with such incidences reported to medical providers in his private treatment records and VA examinations as well as testified under oath at the February 2010 Board hearing. Thus, the issue turns upon whether there is medical evidence of a nexus between the claimed in-service disease or injury and the present disability. See Hickson, 12 Vet. App. at 253. Here, following his discharge from the service, as well as his earliest recollection of the stair falling incident occurring in 1980, the first evidence of any kind referring to any problem in his knees was in around 1994 or 1995, almost 15 years later. The Board notes that the passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In addition, the diagnosis of arthritis is well outside of the one year presumptive period. Moreover, there is no competent evidence or opinion even suggesting that there exists a medical nexus between any currently diagnosed bilateral knee disability and service. None of the treatment records of record reflect any such comment to that effect, and the Veteran has not presented or identified any such existing medical evidence or opinion. To this effect, the only medical opinion of record giving an opinion as to etiology, as seen in the April 2012 VA examination, found it more likely that the Veteran's current left knee condition is related to the natural aging process as well as his 21 year history of knee and ankle injuries as a police officer. The Board acknowledges that the Veteran's treatment records document a bilateral knee disability with a discussion of an in-service knee injury. However, these notations appear to be only the examiner recording the Veteran's own reported medical history, without comment. As such, these notations do not constitute competent evidence of the required nexus. The mere transcription of medical history does not transform the information into competent medical evidence merely because the transcriber happens to be a medical professional. See Grover v. West, 12 Vet. App. 109, 112 (1999); Leshore v. Brown, 8 Vet. App. 406, 409 (1995). In regard to continuity of symptoms, the Board find that the Veteran's claimed low bilateral knee disability, as it involves arthritis, is properly afforded such consideration, as it is one of the enumerated conditions in 38 C.F.R. § 3.309(a). Walker, 708 F.3d 1331. In this regard, the Board finds that the Veteran has not provided competent and credible testimony that his symptoms of bilateral knee pain have continued since service discharge. See Buchanan, 451 F.3d at 1336-37; Layno, 6 Vet. App. at 469-70. The Veteran is competent to testify about the onset and continuation of his left knee pain, as pain is an observable symptom within the realm of his personal knowledge. The Board also finds that the Veteran is credible about his onset of symptoms beginning around 1995 as this has been consistent with his statements of record and supported by the earliest dates of treatment reflected in his private treatment records. However, the Board finds that, although the Veteran's statements on this issue are probative, they do not support a showing of continuity because the symptoms did not continue from either the time that the Veteran was discharged from the service or from the occurrence of the in-service falling accident. For all the foregoing reasons, service connection for a left knee disability must be denied. While the Board is sympathetic to the Veteran's claims, taking into account all of the relevant evidence of record, the preponderance of the evidence is against a finding of an etiological relationship between the Veteran's bilateral knee disabilities and his military service, the Board concludes that service connection is not warranted. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence are against the claims. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert, 1 Vet. App. at 55. ORDER Entitlement to service connection for a bilateral knee disability is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs