Citation Nr: 1331079 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 06-06 992A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to service connection for a left knee disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1965 to February 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision in which the RO denied, in pertinent part, the Veteran's claim for entitlement to service connection for a left knee disorder. The Veteran filed a notice of disagreement (NOD) in November 2005. A statement of the case (SOC) was issued on March 2006. The Veteran perfected a timely appeal with the submission of a statement in lieu of a VA Form 9 on March 2006. This claim was previously before the Board in September 2010, March 2012, and December 2012 and was remanded for further development. That development was completed and the claim has returned to the Board for appellate disposition. A review of the Virtual VA paperless claims processing system revealed nothing further pertinent to the present appeal. FINDING OF FACT A chronic left knee disorder was not shown in service or for many years thereafter, and no present left knee disorder is otherwise shown to be related to service. CONCLUSION OF LAW The criteria for establishing service connection for a left knee disorder are not met. 38 U.S.C.A. §§ 1101, 1103, 1110, 1112, 1113, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 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 on November 2004, May 2005, and March 2006. Furthermore, he 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 includes obtaining records in the custody of a Federal department or agency, including VA medical records and relevant Social Security Administration (SSA) records, and making reasonable efforts to obtain private medical records. 38 C.F.R. § 3.159(c)(1), (2); Golz v. Shinseki, 590 F.3d 1317, 1321-23 (Fed. Cir. 2010). The Appeals Management Center (AMC) attempted to obtain the Veteran's SSA records. However, a response from SSA was received indicating that no such records existed. The Veteran was notified in a February 2013 letter and a March 2013 supplemental statement of the case of the unavailability of such records and requested to provide any that he may have in his possession. To date, the Veteran has not provided any additional documentation. The Veteran was also provided with VA examinations in November 2010, November 2011, and February 2013. The examinations were adequate because they 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. Also, the Board finds that there has been substantial compliance with the directives of the September 2010, March 2012, and December 2012 remands. See Stegall v. West, 11 Vet. App. 268, 271(1998); Dyment v. West, 13 Vet. App. 141, 146-47(1999). Neither the Veteran nor his representative has 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 Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (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 disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. The first inquiry is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, id. 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), citing Gilbert, 1 Vet. App. at 54. Background The Veteran contends that his left knee disorder is related to accidents sustained during his active military service. In his October 2004 claim, the Veteran indicated that he suffered his injury in either May or June 1965, while he was in initial entry training. In a March 2005 statement, the Veteran related that he went to the VA Medical Center in Washington in 1968, after leaving service, to have his knee evaluated. In an October 2010 statement, the Veteran related that he injured his left knee during basic training and went to sick call twice. He also stated that he had another injury while in Vietnam. In a December 2010 statement, the Veteran indicated that he had an injury of being hit by a vehicle on a bike while in Vietnam. He submitted a photograph showing bandages on his knee. In May and June 2012, the Veteran submitted lay statements from fellow service members regarding his in-service bike accident in Vietnam. It was stated that the Veteran was struck on the back of a motorbike by a car, and that he went to sick call for bandages and returned to duty. Another statement indicated that the Veteran could not return to work for a week due to his injuries. His injuries included his left knee, arm, and side. A review of the Veteran's STRs revealed a March 1965 entry for the treatment of left knee pain. No other records relating to a knee injury were included. The Veteran's December 1967 separation examination revealed no complaints, treatment, or diagnosis of any left knee condition. A review of the Veteran's VA outpatient treatment records contains no discussion of treatment or etiology of a left knee condition. In a June 2006 written statement, the Veteran stated that he was having trouble getting medical records pertaining to his left knee. Specifically, the Veteran stated that he went to the VA Medical Center in Washington, DC in 1968 or 1969 to check on his left knee. Those records were not associated with the claims file. The Board requested that the AMC attempt to obtain such putative records. A March 2012 memorandum shows that the AMC attempted to obtain records from the Washington, DC VA Medical Center, but that no such records were available. The Veteran was notified in a March 2012 supplemental statement of the case, but he has not submitted any further records related to that search. A review of the Veteran's private treatment records revealed that he has been treated for a left knee condition since March 1992. In that record, the Veteran was noted as having no acute bony pathology or significant degenerative change in either knee. In October 1995, the Veteran was seen for complaints of chronic left knee pain and swelling. No significant abnormality was found. In September 2004, the Veteran was seen for chronic left knee pain. It was noted that the Veteran gave a history of an injury in Vietnam in 1968 in which he twisted his knee. The Veteran was diagnosed with lateral collateral strain and rule out lateral meniscal tear. In December 2004, the Veteran was seen for complaints of bilateral knee pain. In March 2005, the Veteran was seen for complaints of left leg pain. In June 2005, the Veteran was seen for complaints of right knee pain. In September 2005, the Veteran was seen for complaints of left knee pain. He was diagnosed with degenerative changes with narrowing of joint spaces and minimal marginal spurs, meniscus calcification, and effusion. In October 2005, the Veteran was seen for complaints of intermittent pain and swelling in his left knee. It was noted that the Veteran had complained of these left knee symptoms for about fifteen years and that the Veteran had stated he injured his knee in 1965 in service. The Veteran was diagnosed with chondrocalcinosis and tears of the posterior horn of the right lateral meniscum and left medial meniscus, noted as being probably degenerative. The Veteran was examined by VA in November 2010. The Veteran related that he injured his leg during basic training in 1965 when he sustained a fall from a balcony. The Veteran further reported that he was sent to sick call and did not begin to have pain symptoms until three years later. The Veteran complained of symptoms of weekly locking episodes and repeated effusions. He also reported flare-ups that were moderate, occur weekly, and last from one to two days, with prolonged walking often causing onset. The Veteran stated that the flare-up really did not limit what he could do. The examiner found that the Veteran exhibited no objective symptoms. The range of motion testing revealed a flexion of 140 degrees and extension of 0 degrees. No additional pain or loss of motion was noted upon repetition. The diagnosis was of left knee tricompartmental osteoarthritis with evidence of medial meniscal calcification. The examiner opined that the Veteran's left knee condition was less likely than not related to the injury described in service. In support, he provided that there was no evidence of a connection between his 1965 accident and the pain he described with onset three years later. Further, the examiner stated that there was nothing to support the connection of the 1965 injury to the Veteran's current presentation of a left knee condition, and that natural aging was the more probable cause. The Veteran was accorded a VA examination in November 2011. Upon reviewing the Veteran's claims file, the examiner opined that the claimed condition was less likely than not incurred in or caused by the in-service event, injury, or illness. In support, he provided that the Veteran had made a statement that his knee condition began after his first reported in-service injury, in 1965. Also, the examiner stated that the Veteran reported that his knee condition began at later times on two other occasions. In October 2005, the Veteran told his private physician, Dr. R., that his condition began in 1990 and, at his 2010 VA examination, he stated that his condition began in 1968. Due to these inconsistencies, it appears that the examiner did not find the Veteran's reported history of onset to be reliable. Further, the examiner noted that, if the Veteran had sustained his currently diagnosed left knee meniscus tear and degenerative arthritis in service, he would have begun experiencing symptoms immediately and not on a delay as claimed. Last, the examiner stated that the Veteran has degenerative arthritis and a meniscus tear in his right knee as well, which indicates that the Veteran's left knee condition is just a part of the natural aging process. The Veteran was administered a VA examination in February 2013. At this examination, the examiner reviewed the Veteran claims file, to include the 2012 lay statements and a consideration of the Veteran's assertion that he injured his left knee in an additional accident in 1967 in Vietnam. The examiner opined that the claimed condition was less likely than not incurred in or caused by the in-service event, injury, or illness. In support, he provided that the statements regarding the Veteran's bike injury in 1967, subsequent treatment, and release back to duty indicated that the injury was of a minor degree. Furthermore, the fact that only a couple of months later, during the Veteran's separation physical, he was not reporting any symptoms relating to his left knee also showed that this must have been a minor injury that resolved quickly. The examiner stated that it is unlikely that such a minor injury would result in modest arthritis more than forty years later. The examiner also agreed with the findings of the 2011 examiner in finding inconsistencies in the Veteran's statements of onset, a finding that if the Veteran had sustained his currently diagnosed degenerative arthritis and meniscus tear in his left knee in service, he would have begun experiencing symptoms immediately and not on a delay as claimed, and that age was more likely the cause of the Veteran's arthritis. 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 left knee condition, so the appeal must be denied. The evidence shows that there is a current disability, based upon the Veteran's diagnoses of left knee tricompartmental osteoarthritis with evidence of medial meniscal calcification. The Board finds that there is also evidence of an in-service injury of a fall in basic training and a bike accident in Vietnam, as shown by the March 1965 STR and the Veteran's and his friends' 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 and his friends are competent to testify about his accidents in service because they are within the realm of their personal knowledge from first-hand experience. Further, the Board finds that the Veteran and his friends are credible, as their statements are consistent with such incidences reported to healthcare providers in his private treatment records and at VA examinations. Thus, the issue turns on 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, there is only one documented complaint for knee injury early in the Veteran's service. However, upon exit from service, the medical record reveals no complaints or indication of a chronic condition. Moreover, following his discharge from the service, the first evidence of any kind referring to any problem in his knees was in 1992, decades after the Veteran's discharge from military service. 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 left knee disorder and service. None of the treatment records reflect any such comment to that effect, and neither the Veteran nor his representative has presented or identified any such existing medical evidence or opinion. To this effect, the only medical opinions of record giving an opinion as to etiology, as seen in the November 2010, November 2011, and February 2013 VA examinations, consistently found it more likely that the Veteran's current left knee disorder is related to the natural aging process. The Board acknowledges that the Veteran's treatment records document a left knee disorder and a history 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 finds that the Veteran's claimed left knee condition, 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 v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a)). In this regard, the Board finds that the Veteran has not provided credible testimony that his symptoms of left 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. However, the Board finds that the Veteran's statements regarding the onset of continued left knee pain lack credibility, because they have varied with what has been stated in the private treatment records and at VA examinations, most notably in an October 2005 treatment record where he stated that his onset was in 1990. Further, the lack of any notation of a painful left knee condition on his service exit examination and the time lapse for nearly forty years also weighs against the Veteran's credibility on the issue of continuity of symptoms from the time of service. While the Veteran specifically complained of left knee pain in service, this incident was never attributed to a chronic left knee condition and was merely treated conservatively as a symptom and was not a disability in and of itself. The fact the Veteran did not report any symptoms at service discharge strongly suggest that they were not present at that time. Moreover, there is no competent, credible and probative evidence establishing a nexus between the left knee tricompart-mental osteoarthritis with evidence of medial meniscal calcification diagnosed decades after service, and the complaint of left knee pain during service. As such, the preponderance of the evidence is against a finding that the Veteran's current left knee disorder is related to his active military service. Hence, service connection for a left knee disorder is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as no competent, persuasive evidence supports the claims, that doctrine is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53- 56. ORDER Entitlement to service connection for left knee disorder is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs