Citation Nr: 1329503 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 10-32 392 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a left knee disability, claimed as left leg injury. 2. Entitlement to service connection for a right knee disability, claimed as right leg injury. 3. Entitlement to service connection for vein removal, status post surgical transplantation to the left or right knee, claimed as leg injury and/or vein graft. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from October 1954 to December 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision on behalf of the Houston, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran withdrew her request for a Board hearing by correspondence dated in September 2011. The Board remanded the case for additional development in January 2012 and May 2013. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. 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). FINDINGS OF FACT 1. A left knee disability was not manifest in service, arthritis is not shown to have been manifest within one year of service, and is not shown to have developed as a result of an established event, injury, or disease during active service. 2. A right knee disability was not manifest in service, arthritis is not shown to have been manifest within one year of service, and is not shown to have developed as a result of an established event, injury, or disease during active service. 3. Vein removal, status post surgical transplantation to the left or right knee, was not manifest in service and is not shown to have developed as a result of an established event, injury, or disease during active service. CONCLUSIONS OF LAW 1. A left knee disability was not incurred or aggravated as a result of active service. 38 U.S.C.A. §§ 1110, 1131, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. A right knee disability was not incurred or aggravated as a result of active service. 38 U.S.C.A. §§ 1110, 1131, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 3. Vein removal, status post surgical transplantation to the left or right knee, was not incurred or aggravated as a result of active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Veteran was notified of the duties to assist and of the information and evidence necessary to substantiate her claims by correspondence dated in September 2007. The notice requirements pertinent to the issues on appeal have been met and all identified and authorized records relevant to these matters have been requested or obtained. The available record includes service department records search reports, VA treatment and examination reports, and the Veteran's statements in support of her claims. The record also shows the Veteran's service treatment and personnel records are unavailable and that they may have been lost due to fire at a government storage facility. In such cases, there is a heightened duty to assist her in developing the evidence that might support her claims, which includes the duty to search for alternative medical records. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). In correspondence dated in October 2007 and January 2009 the service department reported that search efforts revealed no alternative Office of the Surgeon General records and, in essence, that during the period the Veteran reported having received treatment in service no separate hospital files were maintained. A January 2013 service department report noted that morning reports for the 4707th Air Defense Wing for November 1955 and December 1955 had been reviewed and that they included no sick or injury reports. In correspondence dated in November 2008, January 2009, and February 2013 VA notified the Veteran that the service department had been unable to locate her records and she was advised to provide records in her possession or to provide information for VA assistance in searching alternative sources for evidence to substantiate her claims. In VA correspondence issued in June 2013 the Veteran was requested to provide records associated with her treatment at Abington Memorial Hospital or to provide the necessary information for additional VA assistance. The Board finds there is no evidence of a subsequent response as to this matter. The development requested on remand in January 2012 and May 2013 has been substantially completed. There is no evidence of any additional existing pertinent records. Further attempts to obtain additional evidence would be futile. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). When VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination or opinion is adequate. VA medical opinions obtained in this case are adequate as they are predicated on a substantial review of the record and medical findings and consider the Veteran's complaints and symptoms. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion as to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4) (2012). The available medical evidence is sufficient for adequate determinations. There has been substantial compliance with all pertinent VA law and regulations and to adjudicate the claims would not cause any prejudice to the appellant. Service Connection Claims Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of the veteran's service as shown by the veteran's service record, the official history of each organization in which the veteran served, the veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). Service connection can be granted for certain diseases, including arthritis, if manifest to a degree of 10 percent or more within one year of separation from active service. The presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). Continuity of symptomatology applies to those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In order to prevail on the issue of service connection on the merits, 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 present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). A veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). Medical evidence is required to demonstrate a relationship between a current disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person's observations would be competent. Clyburn v. West, 12 Vet. App. 296 (1999). Whether lay evidence is competent and sufficient in a particular case is an issue of fact and lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (sometimes 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) Lay evidence presented by a veteran concerning his continuity of symptoms after service may generally be considered credible and ultimately competent, regardless of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102 (2012). The evidence of record in this case shows that in her August 2007 application for VA compensation benefits the Veteran asserted that she had a left knee disability as a result of surgery during active service in 1955. She also stated she had a vein removal that was related to her left knee surgery. In a November 2008 VA report of contact she stated her knee injury had been sustained in a horse riding accident during the Thanksgiving holiday in 1955. She stated she had fallen from her horse approximately 70 feet over a cliff. She recalled that she had woken up at the hospital at Otis Air Force Base, Falmouth, Massachusetts. VA treatment records show the Veteran underwent bilateral knee replacements in 2006 and that her current medical problems included varicose veins. No opinions as to etiology were provided. A September 2007 report noted vein excision to the right lower distal extremity at age 18 and bilateral total knee replacements without additional comments as to etiology. On VA examination in May 2013 the Veteran reported that during service on a Thanksgiving holiday she fell 70 feet down a hill after she was kicked while looking at a horse. The examiner reported the Veteran's assertion that she awoke in the hospital when the vein from her right, not left, leg was removed. She also reported that after service she experienced the onset of right knee symptoms in 1957. The examiner's diagnoses included right and left total knee replacements which were found to be less likely than not incurred in of caused by the claimed in-service, event, or illness. As rationale for the opinion it was noted that there was no evidence of an in-service injury or surgery and that the Veteran's May 2006 total knee replacements were caused by symmetrical degenerative joint disease that were not associated with active service. The examiner noted that he did not know when the Veteran had surgery to remove a vein from her right calf, but that her knee disabilities were not related to vein removal. It was noted, however, that the Veteran and her spouse reported that the vein removal surgery had been in 1955. Based upon the evidence of record, the Board finds that left knee, right knee, and vein removal disabilities were not manifest in service and are not shown to have developed as a result of an established event, injury, or disease during active service. Arthritis to the left or right knee is not shown to have been manifest within one year of service and there is no probative evidence of medical treatment for vein removal or knee disorders for more than 50 years after service. The May 2013 VA examiner's opinion is found to be persuasive and based upon adequate rationale. The opinion is shown to have been based upon a thorough examination and a thorough review of the competent and credible evidence of record. The Veteran's statements as to having had left or right knee disorders or having undergone left or right knee and vein removal surgeries in service and the report attributed to her spouse that she had vein removal surgery in 1955 are found to be not credible due to their interest in the outcome of the case. The Board also notes that the Veteran has provided inconsistent reports as to the lower extremity involved and as to the date of onset of knee problems. In this regard, the Board notes that the Veteran has asserted various reasons for the vein removal: that it was the result of the alleged fall in 1955, and alternatively as associated with the later knee surgery. In determining whether evidence is credible VA may consider internal consistency, facial plausibility, and consistency with other evidence. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (superseded by statute for an unrelated point of law as stated by Duenas v. Principi, 18 Vet. App. 512 (2004)); see also Buchanan, 451 F.3d at 1337 (VA can consider bias in lay evidence and conflicting statements of the veteran in weighing credibility); Macarubbo v. Gober, 10 Vet. App. 388 (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor); Pond v. West, 12 Vet. App. 341, 345 (1999) (holding in a case where the claimant was also a physician, and therefore a medical expert, that the Board should properly consider the appellant's own personal interest in the outcome of the case). Although a September 2007 VA treatment report noted the Veteran's medical history included a vein excision to the right lower distal extremity at age 18, the examiner provided no additional comments as to the basis for that treatment nor as to how it was determined that the procedure was performed when the Veteran was 18 years old. As this information appears to have been provided solely based upon the Veteran's report of an injury and treatment during active service which has been found to be not credible concerning this specific matter, the September 2007 treatment report is also not credible. The Court has held that evidence which is simply information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute competent medical evidence. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Additionally, a "[Doctors'] diagnoses can be no better than the facts alleged by appellant." Swann v. Brown, 5 Vet. App. 229, 233 (1993). When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board finds the preponderance of the evidence in this case is against the Veteran's claims for entitlement to service connection. Therefore, the appeals must be denied. ORDER Entitlement to service connection for a left knee disability, claimed as left leg injury, is denied. Entitlement to service connection for a right knee disability, claimed as right leg injury, is denied. Entitlement to service connection for vein removal, status post surgical transplantation to the left or right knee, claimed as leg injury and/or vein graft, is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs