Citation Nr: 1333255 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 08-37 864 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for arthritis of the right and left knees. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. M. Casula, Counsel INTRODUCTION The Veteran had active service from December 1966 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) from an October 2007 rating decision of the above Regional Office (RO) of the Department of Veterans Affairs (VA) which denied entitlement to service connection for right and left knee arthritis. In February 2011, the Board remanded the claim for further development, to include asking the Veteran to provide information regarding treatment for his knees, obtaining any such records, and scheduling the Veteran for a VA examination to determine the etiology of his knee problems. The record reflects that the Veteran was sent a letter in February 2011 requesting information regarding treatment for his knees, that the named treatment records were obtained, and he was scheduled for a VA examination with opinion in February 2011. Thus, the Board concludes that there was substantial compliance with the remand directives of February 2011. Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The competent and probative medical evidence of record preponderates against a finding that the Veteran's arthritis of the right and/or left knee may be related to his period of active military service. CONCLUSION OF LAW Right and/or left knee arthritis was not incurred in or aggravated by a period of active military service and may not be presumed to be. 38 U.S.C.A. §§ 1101, 1110, 1112, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1), as amended, 73 Fed. Reg. 23,353 (April 30, 2008). This notice must be provided prior to an initial decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The United States Court of Appeals for the Federal Circuit (Federal Circuit) held that any error in VCAA notice should be presumed prejudicial, and that VA bears the burden of proving that such an error did not cause harm. Sanders v. Nicholson, 487 F.3d 881 ( Fed. Cir. 2007). However, the United States Supreme Court (Supreme Court) reversed that decision, finding it unlawful in light of 38 U.S.C.A. § 7261(b)(2). The Supreme Court held that - except for cases in which VA failed to meet the first requirement of 38 C.F.R. § 3.159(b) by not informing the claimant of the information and evidence necessary to substantiate the claim - the burden of proving harmful error rests with the party raising the issue, the Federal Circuit's presumption of prejudicial error imposed an unreasonable evidentiary burden upon VA and encouraged abuse of the judicial process, and determinations on the issue of harmless error should be made on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in June 2007 that fully addressed the notice elements and was sent prior to the initial RO decision in this matter. This letter informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The Board also notes that in the June 2007 letter, the Veteran was advised of how disability ratings and effective dates are assigned. See Dingess v. Nicholson, supra. Moreover, he has not demonstrated any error in VCAA notice, and therefore the presumption of prejudicial error as to such notice does not arise in this case. See Sanders v. Nicholson, supra. Thus, the Board concludes that all required notice has been given to the Veteran. Additionally, in May 2009, the Veteran was provided an opportunity to set forth his contentions during a hearing at the RO before a hearing officer. In Bryant v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the May 2009 RO hearing, the hearing officer enumerated the issue on appeal, and information was also solicited regarding the circumstances of the Veteran's knee problems and the nature of his current disability. Therefore, not only was the issue "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim" were also fully explained. See Bryant, 23 Vet. App. at 497. Moreover, the hearing discussion did not reveal any evidence that might be available that had not been submitted. Under these circumstances, nothing gave rise to the possibility that evidence had been overlooked with regard to the appellant's claim for service connection. As such, the Board finds that, consistent with Bryant, the RO hearing officer complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claim based on the current record. The Board also finds VA has satisfied its duty to assist the Veteran in the development of the claim. The RO has obtained all identified and available service and post-service treatment records for the Veteran. In February 2011, the Veteran underwent a VA examination which included a review of the claims folder and a history obtained from the Veteran. Further, examination findings were reported, along with diagnoses/opinions, which were supported in the record; thus, the February 2011 VA examination report is adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007). It appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims folder, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. The Board concludes that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, supra. The Board concludes that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. No useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The Court has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Factual Background The Veteran's service personnel records show that he served a tour of duty in Vietnam and was assigned to an infantry unit. Service treatment records (STRs) show no report of or finding of any knee problems or arthritis. Treatment records from Marion Family Practice include a left knee x-ray taken in August 2000, with findings of early degenerative changes and fullness in the suprapatellar space suggesting a small joint effusion. There were no acute fractures or destructive lesions. It was noted that the Veteran had bilateral knee pain with effusion in the left knee. A private treatment record showed that in October 2004, the Veteran "still" had knee pain. In February 2007, the Veteran filed a formal claim for service connection for arthritis of the right and left knees. Therein he indicated that his arthritis of both knees began in 1967, and that he was treated for this from 1997 to the present. He reported that his knee condition was related to events in "OCS" training at Ft. Benning, Georgia, which he asserted included having to engage in five to 10 mile double time hikes, five days a week, in combat boots. In the notice of disagreement received in March 2008, the Veteran contended he spent his military career as an infantry officer, and that he attributed his knee problems to that service, claiming he had no problems with his knees when he enlisted and that his training as well as his combat service was where he first had problems. He claimed he carried a heavy pack during training and in the combat environment. He served just under three years, and was not aware of arthritis being visible on x-ray that early, nor did he realize that his problems were going to lead to more serious issues in later years. In a statement dated in July 2009, the Veteran reported that he injured one or both of his knees while in combat while seeking cover from enemy fire. He asserted that his knee problems began in service, but were not severe enough to seek medical treatment at that time, and that most of his treatment had been with over-the-counter medication. Under 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d), service connection for a combat-related injury may be based on lay statements, alone, but these provisions do not absolve a claimant from the requirement of demonstrating current disability and a nexus to service, as to both of which competent medical evidence is generally required. Beausoleil v. Brown, 8 Vet. App. 459, 464 (1996). On a VA examination in February 2011, the Veteran reported that his left knee pain was greater than his right, since he was in his mid 30s. He did not recall any specific injury, and did not remember having knee pain during service. It was noted that service treatment records were silent for treatment of any knee condition, and that an x-ray showed degenerative osteoarthritis of the bilateral medial joints; and bilateral joint effusion. The diagnosis was chondromalacia both knees/degenerative arthritis bilateral knees. The examiner opined that the Veteran's bilateral knee arthritis was less likely than not caused by or a result of active service, to include training and combat operations. The rationale provided was that it was the Veteran's contention that his current bilateral knee arthritis was the result of service, especially the long marches in boots during training and combat. The examiner noted that the Veteran did not recall knee pain during military years and denied any specific injury to the knees before, during, or after service. The examiner also noted that the Veteran's service treatment records were silent for the treatment of any knee condition, and that his knee pain did not even become an issue until about 15 years after his discharge from service. The examiner indicated that both the Veteran's induction and separation physicals were silent regarding a knee condition, and that there was no nexus linking his present day knee condition to service. Received from the Veteran in March 2011 was a statement (VA Form 21-4138), in which he reported he first started seeing a doctor on a regular basis in the mid 1990s, and that his knees had bothered him as far back as the 1980s. He reported he had tried to treat his knees with over the counter aids. He claimed that prior to service he did not play any organized sports in high school or college. The Veteran felt that the extensive training he did while at Fort Benning at OCS in 1967 caused his knee problems. He claimed that they would run anywhere from five to 10 miles a day in combat boots, to and from classes, five to six days a week. He also claimed that many times they had to low crawl on the ground as punishment for doing something wrong. The Veteran felt that arthritis was more common the older one gets, and that his knee problems would not have occurred at such an early age (mid 30s) if it was not caused due to military training. III. Analysis Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In order to prevail on the issue of service connection, 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). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). The Federal Circuit recently held that the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis is listed under 38 C.F.R. § 3.309(a). For certain disabilities, such as arthritis, service connection may be presumed when such disability is shown to a degree of 10 percent or more within one year of the veteran's discharge from active duty. 38 U.S.C.A. § 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Such a presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307. Further, 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 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). 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, including the probable etiology of arthritis of the knees, this falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, supra (lay persons not competent to diagnose cancer). Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). The Board is charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, supra; Buchanan v. Nicholson, supra. It is the Board's responsibility to evaluate the entire record on appeal. 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran essentially contends that his arthritis of the right and left knees is related to his active service, and that he has had knee pain symptoms since service. With regard to current disability, the Board notes that, as set out above, post-service treatment records show diagnoses of right knee arthritis and left knee arthritis. Thus, the record reflects that the Veteran has current knee disabilities. Service treatment records are negative for any knee complaints or findings. What is missing from the record is competent evidence showing that the Veteran's current right and left knee arthritis may be causally related to his active military service. 38 C.F.R. § 3.303. Post-service, treatment records show that the Veteran was diagnosed and treated for arthritis of the knees. On a VA examination in 2011, the diagnosis was chondromalacia both knees/degenerative arthritis bilateral knees and the examiner opined that the Veteran's bilateral knee arthritis was less likely than not caused by or a result of active service, to include training and combat operations. The rationale provided was that it was the Veteran's contention that his bilateral knee arthritis was the result of service, especially the long marches in boots during training and combat; that the Veteran did not recall knee pain during military years and denied any specific injury to the knees before, during, or after service; and that the Veteran's STRs were silent for the treatment of any knee condition, and that his knee pain did not even become an issue until about 15 years after his discharge from service. The Board finds the VA examiner's opinion in 2011 to be probative and persuasive on the issue of whether the Veteran's right and left knee arthritis may be related to service. In that regard, the VA examiner's opinion was based on a review of the record and an interview and examination of the Veteran. While the Veteran's statements at the hearing were to the effect that he did not recall knee pain during service, that he denied any specific injury to the knees during service, and that he did not remember having knee pain during service, on the VA examination report, in the rationale, the examiner noted that it was the Veteran's contention that his current bilateral knee arthritis was the result of service, especially the long marches in boots during training and combat. Finally, the examiner provided evidentiary support in the record for the opinion provided. The Board also notes that the Veteran has not submitted any competent medical evidence to the contrary. The Board recognizes the Veteran has contended that his arthritis of the right and left knees is related to service, and that he has had knee symptoms since service. As noted above, lay statements may be competent to support a service connection claim by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. Likewise, the Veteran is competent to describe symptoms he has experienced - because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. at 465 (1994). Even accepting the occurrence of inservice injury during combat, the Board does not believe that the etiology of knee arthritis is subject to lay diagnosis, and, as a lay person, the Veteran is not competent to report that he has a knee disability (arthritis) related to service. 38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); Jandreau v. Nicholson, supra; Buchanan v. Nicholson, supra; Kahana v. Shinseki, supra. The preponderance of the evidence is therefore against the claim of service connection for right and left knee arthritis. Consequently, the benefit-of-the-doubt rule does not apply and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. ORDER Service connection for right and left knee arthritis is denied. ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs