Citation Nr: 1330890 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 08-36 921 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a bilateral knee disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD A. Fagan, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1969 to July 1971. This appeal to the Board of Veterans' Appeals (Board) is from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which, in pertinent part, denied service connection for a bilateral knee disorder. In March 2010, the Board denied the Veteran's claim for service connection for a bilateral knee disorder. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (CAVC/Veterans Court). In August 2010, the Veterans Court vacated the Board's March 2010 decision that denied service connection for a bilateral knee disorder, and remanded the issue to the Board for further development and readjudication, in accordance with the August 2010 Joint Motion for Partial Remand. The appeal as to the remaining issues was dismissed. In December 2010 and again in July 2011, the Board remanded the bilateral knee claim to the RO, via the Appeals Management Center (AMC), for additional development and consideration. In August 2012, because the AMC failed to comply with the July 2011 remand directive pertaining to a VA medical opinion, the claim was again remanded. See Stegall v. West, 11 Vet. App. 268 (1998). In June 2013, the Board remanded the claim for due process considerations. FINDINGS OF FACT The Veteran's current bilateral knee disability, variously diagnosed as degenerative joint disease, knee strains, and Osgood-Schlatter's disease, is not due to his period of service, nor did it manifest to a compensable degree within one year following service discharge. CONCLUSION OF LAW The criteria for establishing service connection for a bilateral knee disability have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify & Assist Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: (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 v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In a December 2007 letter issued prior to the decision on appeal, VA notified the Veteran of the information and evidence needed to substantiate his claim of entitlement to service connection, to include notice of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain. That letter also informed the Veteran of how disability evaluations and effective dates are assigned. Subsequent duty to assist letters were issued to the Veteran in 2012 as well. The claim was readjudicated in the July 2013 supplemental statement of the case. The Veteran has had the opportunity to submit additional argument and evidence. Therefore, any content or timing error did not affect the essential fairness of the adjudication of the claim. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis). As to the duty to assist, VA obtained service treatment records, VA treatment records, private medical records, Social Security Administration (SSA) records, and the Veteran's statements. The Veteran has not indicated there are any additional available records that VA should seek to obtain on his behalf. VA has provided the Veteran with examinations in connection with his bilateral knee disability claim on appeal, most recently in June 2013. The June 2013 medical opinion provided is adequate for adjudicative purposes. The examiner reviewed the claims file, discussed the pertinent evidence of record, and provided a rationale for the ultimate conclusion. The Veteran has not requested a hearing. Additionally, the prior remand instructions were substantially complied with. Instructions pertinent to the claim being decided included obtaining Social Security Administration (SSA) records, obtaining ongoing VA treatment records, scheduling the Veteran for a VA examination, and obtaining a nexus opinion based on a presumption that the Veteran sustained injury to his knees during service. In response, SSA records were obtained in January 2012, ongoing VA treatment records were obtained in September 2012, and the Veteran was afforded VA examinations in January 2011 and June 2013. In formulating a nexus opinion, the June 2013 VA examiner presumed in-service knee injury in accordance with the Board's instructions. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of these matters on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Service Connection The Board has reviewed all the evidence in the Veteran's paper and electronic claims files. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic disorders, including arthritis, service connection may be presumed to have been incurred in service if the disease becomes manifest to a compensable degree within one year following separation from service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran 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); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Following a review of the record, the Board finds that service connection for a bilateral knee disorder is not warranted. Initially, the record establishes a current bilateral knee disability. For example, a July 2013 VA examination report shows a diagnosis of degenerative joint disease of the bilateral knee. Additionally, VA imaging of the knees in July 2007 revealed old Osgood-Schlatter's disease, and a January 2011 VA examiner diagnosed bilateral knee strain. Accordingly, the current disability requirement for establishing service connection is satisfied. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The record also supports in-service incurrence of a knee injury. Service treatment records, including a March 1971 separation examination report, are negative for treatment, clinical findings, or diagnoses related to any knee disorder. Nevertheless, the Veteran has competently asserted that he sustained injury to his knees in service from falling out of a moving truck, while stationed in Germany. Moreover, his service personnel records indicate that he served on active duty in Germany from 1970 to 1971, with a military occupational specialty (MOS) during that time as a wheeled vehicle repairman. Therefore, the Board finds his account of in-service injury to both knees to be uncontradicted and consistent with the circumstances of his service, and thus, credible. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). As the in-service occurrence requirement is also satisfied, the remaining question is whether there is a link between the current knee disabilities and the in-service knee injuries. See Davidson, 581 F.3d 1313. Here, the medical evidence of record does not establish a direct connection between the currently diagnosed bilateral knee disorders and service, to include injury to the knees therein. The June 2013 VA examiner opined that the Veteran's knee disabilities are less likely than not related to the claimed in-service injury, event, or illness. The examiner presumed the Veteran's history of knee injury in service to be accurate, but found that the extent of any injury in service is unknown since treatment was not sought in service or within a reasonable period afterward. The examiner further noted that the current finding of mild to moderate degenerative joint disease is common in individuals the Veteran's age, and was far removed from the Veteran's discharge from active duty. The examiner also found that a reasonable person experiencing ongoing knee problems would have sought treatment. That June 2013 opinion provided an adequate rationale that was based on a review of treatment records, the Veteran's account of symptomatology and treatment, physical examination, current diagnoses, as well as medical expertise. Accordingly, the Board affords it significant probative value. Prejean v. West, 13 Vet. App. 444 (2000) (factors for assessing the probative value of a medical opinion include the physician's access to the claims folder and the Veteran's history, and the thoroughness and detail of the opinion). Significantly, there is no contrary medical evidence of record. Additionally, while earlier VA opinions in January 2011 and December 2011 are not complete and of limited probative value, they do not support the Veteran's claim. The January 2011 and December 2011 VA examiners opined that the specific diagnosis of Osgood-Schlatter's disease is less likely than not related to service. In support of that conclusion, the examiners collectively noted that the disease only occurs in young people during the growth of an individual; there are no acquired forms of the disease. Moreover, the examiners determined that there was no active disease or disability associated with the disease, and further noted that the disease does not interfere with the knee joint itself. Regarding other knee diagnoses, the examiners also found that any ongoing significant bilateral knee conditions would have led the Veteran to seek medical treatment during the 40 years since his discharge from service. The examiners also found significant the fact that VA imaging of the knees in July 2007 showed old Osgood-Schlatter's disease but was negative for evidence of a chronic condition of the knee joints. Such a finding supports that, since arthritis was not present upon imaging of the knees in July 2007, more than 35 years post service, it was also not present within one year of separation from service in 1971. The Board acknowledges that the Veteran has asserted in written statements that his current bilateral knee disability is related to service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, a bilateral knee disability falls outside the realm of common knowledge of a lay person. In this regard, while the Veteran can competently report the onset and symptoms of knee pain, any actual diagnosis of a knee disability requires objective testing to diagnose, and can have many causes. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Moreover, whether symptoms the Veteran experienced in service or following service are in any way related to any current knee disability requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). To the extent that the Veteran himself believes that he has current a bilateral knee disability that is due to service, as a lay person, he is not shown to possess any specialized training in the medical field. The Veteran's opinion as to the etiology of his claimed current knee disability is not competent medical evidence, as such question requires medical expertise to determine. Id. In any event, the Board concludes that the medical evidence, which fails to show a nexus between a current bilateral knee disability and the Veteran's service, is of greater probative value than the lay contentions of the Veteran. Furthermore, to the extent that the Veteran asserts that his current bilateral knee symptoms have been recurring since his claimed injury in service, the Board finds the Veteran's assertions not credible, notwithstanding the fact that service connection cannot be established based on continuity of symptomatology for diagnosed osteoarthritis, knee strains, and Osgood-Schlatter's disease. In this regard, there is no indication that the Veteran reported recurring or, indeed, any knee problems during his May 1971 separation examination, at which time he certified that he was in good health. Additionally, his service treatment records show complaints related to other joints, including the hand, foot, and back, but are negative for knee complaints. The Board finds it likely that had the Veteran been experiencing ongoing knee problems during service following his claimed injury, he would have sought treatment for it, as he sought treatment for a variety of other ailments. Similarly, the Board finds it likely that had the Veteran a 35-year history of knee problems, he would have reported it upon presenting for treatment for his knees in July 2007. However, at the time of that initial July 2007 report of bilateral knee pain, the Veteran failed to mention any history of longstanding knee symptoms. That report was made in furtherance of treatment and prior to the Veteran's initial November 2007 knee service connection claim. Even the Veteran's statements regarding in-service incurrence are somewhat lacking in credibility as they are internally inconsistent. For instance, in his initial claim for benefits in November 2007, the Veteran reported injury to the left foot, but not to the knees, as a result of being thrown out of a truck in service; he reported knee injuries generally due to basic training. The Board notes other inconsistencies of record. For example, in an October 2010 written statement, the Veteran alleged that his legs and back never hurt him until he was knocked out of the truck in Germany. In contrast, during October 2007 VA treatment prior to receipt of his initial claim for benefits, the Veteran reported a history of neck and back pain since age 14, and further indicated that he had been "bucked off horses many times with back and neck injuries." Given the foregoing, the Board accords little probative weight to the Veteran's lay statements in general, including statements offered regarding the course of his knee symptoms. The foregoing notwithstanding, there continues to be no medical opinion relating the Veteran's current bilateral knee disability to his period of active service. Thus, even if the Veteran's assertions of in-service and post-service symptomatology are true, the assertions do not substantiate his claim for service connection for his currently-diagnosed bilateral knee disabilities. As previously noted, the Veteran is not competent to create the requisite nexus between his current disorders and service. In summary, the preponderance of the evidence is against service connection for a bilateral knee disability. As such, the benefit of the doubt doctrine does not apply and the claim must be denied. 38 C.F.R. § 3.102. ORDER Service connection for a bilateral knee disorder is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs