Citation Nr: 1331523 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 09-09 534 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for a bilateral knee disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. Curameng, Counsel INTRODUCTION The Veteran had active duty service from June 1959 to April 1961. The Veteran died in May 2013 during the pendency of this appeal. Nevertheless, in September 2013, the RO determined that the Veteran's wife is an eligible survivor to substitute for the decedent. See 38 U.S.C.A. § 5121A. The Board notes that since the RO has authorized substitution, the claim will be processed as if the Veteran were still alive. This matter came to the Board of Veterans' Appeals (Board) from a May 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was remanded in January 2011 and September 2012 for further development. A review of the record shows that the RO has complied with all remand instructions by obtaining outstanding VA medical records, obtaining Social Security Administrative (SSA) records, affording the Veteran VA examinations, and issuing supplemental statements of the case. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT A bilateral knee disorder was not manifested during the Veteran's active duty service or for many years thereafter, nor is a bilateral knee disorder otherwise related to such service. CONCLUSION OF LAW A bilateral knee disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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 and 3.326(a) (2013). Duty to Notify 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). The RO provided the pre-adjudication notice by a letter dated in November 2007. The RO provided additional notice in February 2011, subsequent to the initial adjudication. The notification substantially complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; and Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. While the February 2011 notice was not provided prior to the initial adjudication, the claimant has had the opportunity to submit additional argument and evidence, and to meaningfully participate in the adjudication process. The claim was subsequently readjudicated in March 2012 and March 2013 supplemental statement of the case, following the provision of notice in February 2011. By virtue of substitution, the appellant has received all essential notice, has had a meaningful opportunity to participate in the development of the claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). The appellant has not demonstrated any prejudice with regard to the content of the notice. 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). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist VA has obtained service, VA and private treatment records, obtained SSA records, reviewed his Virtual VA file, assisted the appellant in obtaining evidence, and afforded the Veteran VA examinations in March 2011 and December 2012. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the appellant and her representative have not contended otherwise. VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. Analysis The issue before the Board involves a claim of entitlement to service connection for a bilateral knee disorder. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation). The Veteran had asserted that his bilateral knee disability is the result of injuries incurred as a parachutist during his period of service. The Veteran's DD Form 214 and his service personnel records indicate that he served as a light weapons infantryman and field artilleryman, and that he earned a Parachutist Badge during service. Service treatment records show that, in March 1960, the Veteran was treated for pain and swelling of the left knee. A March 1960 x-ray shows no abnormalities were found. On August 1960 report of medical examination and March 1961 separation examination, however, clinical evaluation of the lower extremities were normal and no knee disabilities were indicated. Only scars and tattoos were noted in both examinations. The August 1960 examination noted abnormalities on the abdomen and viscera. On an August 1960 report of medical history the Veteran did not mark the appropriate box to indicate a past/current history of "trick" or locked knee, but did indicate eye trouble and appendicitis. Only an eye disorder was noted in the physician's summary. On a March 1961 report of medical history, the Veteran marked the appropriate box to deny "trick" or locked knee and noted only severe tooth/gum trouble. Dental problems were noted in the physician's summary. It was additionally noted that there were "[n]o other significant or interval Medical or Surgical history." The earliest post service treatment records is from Dr. Y.C.A. that is dated in August 1985, and it was noted that he had a medial meniscectomy of the left knee in 1976. While not determinative by itself, this is 15 years after service. This lengthy period without complaint or treatment after service also suggests that there has not been a continuity of symptomatology. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Thus, the one year presumption of service incurrence for arthritis is not warranted. The Veteran was seen in December 1992 by Dr. W.T.J. who diagnosed moderate post traumatic arthritis of the left knee with increasing symptoms over the last three months. It was noted that the Veteran originally injured his knee in 1976 after falling off an oil rig. This past medical history is significant as this is history provided by the Veteran. Such histories reported by the Veteran for treatment purposes are of more probative value than the more recent assertions and histories given for VA disability compensation purposes. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). The Board notes that the Veteran did not report any in service injuries. A June 2008 private treatment record from Dr. W.T.J. shows that he was seen for 8 weeks and 5 days status post left knee nondisplaced lateral tibial plateau fracture. He complained of intermittent pain to the anterior knee. Dr. W.T.J. diagnosed preexisting osteoarthritis of the left knee and nondisplaced fracture lateral tibial plateau left knee. The Veteran was afforded a VA examination in March 2011. After interviewing and examining the Veteran, and after reviewing the Veteran's claims file, the examiner opined that the left knee disability is less likely as not the result of cumulative trauma multiple parachute jumps. The examiner noted that the Veteran spent approximately twenty one months in service. Upon discharge, by the Veteran's history, he sustained no serious trauma secondary to parachute jumps. After service, he spent more than 20 years doing heavy physical labor in the oil drilling industry and experienced multiple traumatic events during this period of time to include injuring the left knee and lumbar spine. It was during this period of time he had three lumbar spine procedures and cervical decompression and fusion. The examiner noted that history would reflect the bulk of the Veteran's time engaging in heavy physical labor and sustaining related trauma after service. In a September 2012 remand, the Board found the examination inadequate since the examiner did not discuss the March 1960 left knee injury and lumped a right knee injury into the Veteran's workers compensation injuries. The Veteran was afforded another VA examination in December 2012. In the medical history, the examiner noted the Veteran's recollection of his left knee buckling after a parachute jump. He was later evaluated and issued a flexible bandage. The examiner noted that this same injury appears to be documented in the claims file. The Veteran did not recall injuring the right knee. The examiner noted that upon discharge, the Veteran recalled left knee pain. The examiner noted that the claims file documents a negative exit examination for either knee symptoms or physical findings bilaterally. It was noted that the Veteran then worked for an oil drilling rig when he slipped and fell down stairs in 1976 injuring his left knee. He noted that a December 1992 note provides the injury to the left knee was in 1976. After interviewing and examining the Veteran, and after reviewing the claims file, the VA examiner opined the it is less likely than not that the bilaterally knee disability was incurred in or caused by the claimed in-service injury. The examiner acknowledged the March 1960 treatment but noted that the March 1961 exit evaluation was negative for knee symptoms or physical findings on either the left or right side. He noted the subsequent history from 1992 stated that the original injury to the left knee was in 1976. The examiner stated that given that documentation, the most likely course of events is that he recovered from the March 1960 injury and had a more serious injury in 1976. As for the right knee, he noted no evidence of knee injury during service and noted that the Veteran was unable to recall injuring it in service. The examiner stated that based on this, the Veteran's right knee DJD most likely developed following service. He stated that this is consistent with the evidence of right knee symptoms beginning in the 1990's, which later led to surgical treatment of that knee. The only competent evidence of record which arguably provides a link between the Veteran's knee and service is an October 2008 letter from the Veteran's private physician, Dr. D.L.B., who stated that the Veteran sustained a cumulative injury to his musculoskeletal system during his period of service as a paratrooper, which resulted in degenerative disk disease of the spine as well as generalized pain due to severe osteoarthritis. The Veteran's knees are not specifically mentioned. Only the spine disorder seems to have been specifically attributed to his history of being a paratrooper. Moreover, even assuming that the generalized pain due to osteoarthritis includes a knee disorder, the Board notes that Dr. D.L.B. did not account for the many years of post-service injuries, which are documented in the claims file. Post-service medical records indicate that in November 1992, the Veteran complained of his left knee locking, and a December 1992 private treatment record indicates that the Veteran originally injured his left knee in 1976 when he fell off of an oil rig, and that he had surgery the same year, which was thought to be a medial meniscectomy. Additionally, the Veteran was treated at the VA after falling in March 2008 in which he had "a compression fracture to his tibia on his left leg just below the knee cap." In contrast, the VA examiners provided rationales based upon in-service and post-service injuries. The medical record reveals a history of post-service injury to the left knee. Therefore, the Board affords considerably more weight to the VA opinions than to the statements contained in Dr. B.'s opinion. Among the factors for assessing the probative value of a medical opinion are the examiner's access to the claims file, and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). It is unclear to the Board whether the Veteran was forthcoming about his post-service injuries and treatments as Dr. D.L.B. made no references to them. Review of the claims file was essential as it provides a comprehensive medical history. It appears to the Board that the March 1960 knee injury in service was acute and transitory. If he had knee disability from that day forward, one would have expected the Veteran to report such on his examinations as he had with his eye disorder, tooth/gum trouble, etc. Moreover, medical personnel, who are competent to render diagnosis, found no abnormalities with the Veteran's lower extremities as they had for other disorders. Also, the Veteran had submitted claims for other VA benefits based on other disabilities in May 1966 and February 1999. It was not until July 2007 when the Veteran's claim for the knees was received. This suggests that the Veteran did not believe he had bilateral knee disorder related to service until many years after service as the Board believes it reasonable to assume that the Veteran would have included a bilateral knee claim with his other earlier claims. The Board acknowledges the Veteran's assertion that his knee disability is related to service. The Board further acknowledges the statement received in May 2008 in which he addressed the normal in-service x-ray-"An x-ray cannot show soft tissue damage..." While the Veteran was competent to testify as to his symptoms, he was not competent to provide a diagnosis of soft tissue damage, for example, and render a nexus opinion. See Barr v. Nicholson, 21 Vet. App. 303 (2007). In support of his claim, the Veteran submitted an article regarding military parachuting injuries. However, this is not sufficient medical evidence specifically linking the Veteran's bilateral knee disability and his parachute jumps in service. Rather, the article is too general and inconclusive to make the claim well grounded in this case. See Sacks v. West, 11 Vet. App. 314 (1998). After thorough review of the evidence currently of record, the Board is led to the conclusion that there is not such a state of equipoise of the positive evidence with the negative evidence to permit a favorable determination in this case. 38 U.S.C.A. § 5107(b). The weight of the evidence is against the appellant's claim.` ORDER Entitlement to service connection for a bilateral knee disorder is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs