Citation Nr: 1329798 Decision Date: 09/17/13 Archive Date: 09/25/13 DOCKET NO. 11-09 373 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1957 to August 1959. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs' (VA) Regional Office (RO) in Cleveland, Ohio. The RO in Buffalo, New York has current jurisdiction of the appeal. In September 2011, the Veteran testified during a videoconference hearing before the undersigned Acting Veterans Law Judge. A transcript of that hearing is of record. The issue before the Board has been characterized generally as entitlement to service connection for a right knee disability, considering the Veteran's history of varying knee diagnoses and April 2010 total knee replacement. The Board has considered documentation included in the Virtual VA system in reaching the determinations below. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's current right knee disability did not begin during service, was not caused by his in-service knee injury, and is not otherwise etiologically related to active duty service. CONCLUSION OF LAW The criteria for service connection for a right knee disability have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist As provided for by 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, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Here, the Veteran was sent a letter in January 2011 that fully addressed all VCAA notice elements for service connection claims. 38 C.F.R. § 3.159(b)(1); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). To the extent this notice was subsequent to the original adjudication of the claim, the RO subsequently readjudicated the matter, and thus any timing deficiency has been cured. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Accordingly, no further development is required with respect to the duty to notify. VA's duty to assist the Veteran in the development of the claim includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains a portion of the Veteran's service treatment records, as well as post-service VA treatment records. A VA examination, in accordance with the Board's July 2013 remand directives, was also conducted. See Stegall v. West, 11 Vet. App. 268, 271 (1998). For the reasons explained below, the Board finds the VA examination adequate to make a determination in this case. The Veteran indicated that he received private treatment following service; however, he did not respond to VA's request for him to complete a VA Form 21-4142, Authorization and Consent to Release Information. During the videoconference hearing, he indicated that he believed the private records no longer existed. Concerning his service treatment records, documents in the file dated from July 2002 indicate that some of the Veteran's service treatment records were destroyed in a 1973 fire at the National Personnel Records Center. Given the absence of such records, the Board has a heightened duty to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). In this regard, however, the Board notes that service treatment records are present that document the in-service right knee injury upon which the Veteran bases his claim; the Veteran has not asserted at any time that he was diagnosed with a chronic disability in service, for which records might not be present. See 38 C.F.R. § 3.303(b). The Veteran's statements in support of the claim are of record, including testimony provided at a September 2011 videoconference hearing before the undersigned. The Board hearing focused on the elements necessary to substantiate his service connection claim and the Veteran, through his testimony and his representative's statements, demonstrated that he had actual knowledge of the elements necessary to substantiate the claim for benefits. As such, the Board finds that, consistent with Bryant v. Shinseki, 23 Vet. App. 488 (2010), the undersigned Acting Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) (2013), and that the Board can adjudicate the claim based on the current record. The Board has carefully reviewed the Veteran's statements and the medical evidence of record, and concludes that no available outstanding evidence has been identified. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. 38 C.F.R. § 3.159(c). Legal Criteria The Veteran asserts that his current right knee disability was caused by an in-service knee injury in which he was diagnosed with synovitis after falling in a bathtub. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (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. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). With chronic disease (as defined in 38 C.F.R. § 3.309(a) (2013)) noted in service or within an applicable presumptive period (which, with arthritis, is one year; see 38 C.F.R. § 3.307(a)(3) (2013)), subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. However, if chronicity in service is not established or where the diagnosis of chronicity may be legitimately questioned, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-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). 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, 511-12 (1995). Where there is conflicting medical evidence, the Board may not ignore or disregard any medical professional's opinion, but may favor one medical opinion over by providing an adequate statement of reasons or bases. See Willis v. Derwinski, 1 Vet. App. 66, 70 (1991). A medical opinion is most probative if it is factually accurate, fully articulated, and based on sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In making all determinations, the Board must also fully consider the lay assertions of record. Buchanan, 451 F.3d at 1335. 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. 38 C.F.R. § 3.159(a). Thus, a layperson is competent to report on the onset and continuity of his symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that 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 if (1) the medical issue is within the competence of a layperson, (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. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). For instance, a lay person may speak to etiology in those limited circumstances where a nexus is obvious merely through observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Factual Background The Veteran's service treatment records show that in October 1958, he fell in a bath tub and hit his right knee, which resulted in swelling. He was treated over a number of days. The ultimate diagnosis was "synovitis, right knee, acute, traumatic." In February and July 1988, the Veteran informed VA treatment providers that he had experienced knee pain on and off since his 1958 in-service fall. In July 1988, he reported that he had had constant pain for the past three years and that he fell in the shower and hurt his right knee. The diagnosis was a rupture of the medial meniscus. At a May 1988 VA examination, conducted in conjunction with a pending claim for service connection for a right knee disability, x-rays demonstrated a "normal" knee, without effusion. The examiner determined that the Veteran had a history of recurrent synovitis with effusion of the right knee, which was in remission. The examiner indicated that the cause was "undetermined." In 1988, the Veteran underwent an arthroscopic meniscectomy. The Veteran, per VA records, began to seek right knee treatment again in April 2000. A May 2000 treatment note indicated that the Veteran's knee gave out in November 1999 while he was pushing a snowblower. A February 2001 VA treatment report indicated persistent right knee pain, progressively worse since his meniscectomy. An MRI showed a "complete absence of the body of the medial meniscus and a horizontally oriented tear involving the posterior horn of the medial meniscus with extension into the inferior meniscal surface, and moderately severe narrowing of the medial joint compartment with moderate features of degenerative osteoarthritis and severe generalized articular cartilage lost." The examiner noted that the patient was overweight, and that he performed "very demanding activities on his knees such as snowblowing, picking up garbage, and lots of other heavy labor activities." An x-ray report from March 2003 indicated that x-rays showed "only an age-related and mild to moderate arthritic change." The Veteran had a varus deformity of the knee with medial pain. On MRI in March 2003, he was diagnosed with maceration and complex tear involving the medial meniscus, moderate to severe medial compartment arthrosis with changes of osteonecrosis, an associated sprain of the medial collateral ligament, moderate joint effusion, and pre-patellar bursitis. A March 2010 treatment note indicate that the Veteran fell during the service, and "subsequently had a meniscus tear." X-rays completed in March 2010 showed right knee tricompartmental degenerative joint disease with a varus deformity. In April 2010, the Veteran underwent a total knee replacement. At his September 2011 hearing, the Veteran reported his history of a right knee injury in service. Following the injury, whenever he kneeled on rough ground, he had problems. He denied having a physical examination upon discharge. When asked whether he was experiencing knee problems prior to discharge, he stated that he could not remember. He also could not remember when he started having problems following his discharge, but noted that the private medical providers who treated him during that time period had either retired or passed away, and that there were no records of his treatment available. He asserted that following service, he remembered that his knee would swell up and require treatment, and that he "[m]ore or less" had continuous knee symptoms. He did not know of any doctor that had associated his current disability with his in-service injury. The Veteran underwent a VA examination in July 2013. The examiner reviewed the claims file, conducted an interview with the Veteran, and performed a physical examination, diagnosing the Veteran with "knee joint replacement status." At the examination, the Veteran reported that his knee had bothered him ever since he left the service. He reported arthroscopic debridement of the knee in approximately 2000, and significant problems post-knee replacement. Thereafter, the examiner opined that the claimed condition was less likely than not incurred in service or caused by the claimed in-service injury. In support of this opinion, the examiner documented his consideration of the record, as well as his consideration of outside studies and guidance from the National Institute of Health (NIH). He noted that the Veteran had been obese for a number of years, and quoted the NIH for the proposition that extra body weight "may place extra pressure on joints and cartilage, causing them to wear away," the relationship between obesity and inflammation that "may raise the risk for osteoarthritis." The examiner noted that there was a lack of any medical records suggesting a nexus between the current disability and service, and opined that the current right knee condition was "most likely caused by or a result of [body mass index] greater than 29.9 and/or 1999 right knee trauma which occurred while operating snowblower and/or physical occupation as Teamster/Construction 1965-1985." Analysis The Board concedes that the Veteran had an in-service right knee injury, and that he has a current right knee disability. Thus, the Veteran has met the first and second criteria for service connection. See Holton, 557 F.3d at 1366. The remaining question, therefore, is whether his current disability is related to that in-service injury. Initially, the Board observes that the Veteran is competent to describe his history of right knee symptomatology, including knee pain and swelling. Jandreau, 492 F.3d at 1376-77. Nevertheless, he is not competent to provide a medical nexus between his 1958 injury and his present disability, as it is too complex of a medical question. Id. In the present case, the Veteran has had multiple knee injuries and undergone surgery on at least two occasions since separating from service. The knee diagnoses have changed over time. The issue of the etiology of his current right knee disability is beyond a simple observable cause-and-effect type of relationship and requires medical training or expertise that the Veteran does not possess. Thus, a probative medical opinion is needed to support his claim. Id. The one medical opinion of record addressing the etiology of the disability is contrary to the Veteran's claim. The examiner considered the Veteran's in-service injury, his post-service history, as well as medical studies, and determined that the current disability was more likely related to the Veteran's weight, his 1999 right knee injury, and/or his years of construction work following service. By providing a reasoned analysis, the examiner fully supported his negative nexus opinion. See Nieves-Rodriguez, 22 Vet. App. at 302. This is not the case of a chronic disability noted in service that has continued to the present. Although the Veteran was ultimately been diagnosed with arthritis, there was no such diagnosis shown in service or within the one-year post-service presumptive period. See 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a). In fact, his right knee synovitis, which is not a "chronic" condition per 38 C.F.R. § 3.309(a), was specifically noted in service to be "acute." Thus, continuity of symptomatology is legally not a basis that the Board can rely on to grant service connection. Based on the foregoing, the Board finds that the most probative evidence of record indicates that the Veteran's current right knee disability is not etiologically related to his in-service injury. Therefore, service connection is not warranted. See Holton, 557 F.3d at 1366. In reaching the conclusion above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); O'Hare, 1 Vet. App. at 367; Gilbert, 1 Vet. App. at 55-57. ORDER Entitlement to service connection for a right knee disability is denied. ____________________________________________ SONJA A. MISHALANIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs