Citation Nr: 1334083 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 07-37 617 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a right knee disability, to include degenerative joint disease (DJD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Juliano, Counsel INTRODUCTION The Veteran served on active duty from October 1966 to February 1969. He is the recipient of, among other decorations, the Purple Heart medal and the Combat Infantryman's Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) located in Nashville, Tennessee. In March 2009, the Veteran testified before the undersigned Veterans Law Judge at a videoconference Board hearing at the RO located in Nashville, Tennessee. A transcript of the proceeding has been associated with the claims file. In April 2009 and December 2011, the Board remanded the Veteran's claim for further development. Such development has been completed and associated with the claims file, and this matter is returned to the Board for further review. Since the AMC issued the last Supplemental Statement of the Case (SSOC) in August 2012, new evidence has been associated with the claims file, including VA treatment records in the electronic claims file as well. The Veteran submitted an October 2013 waiver of consideration by the agency of original jurisdiction (AOJ). Therefore, the Board may proceed with a decision in this case. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's right knee condition, to include DJD, is etiologically related to a disease, injury, or event in service; right knee DJD did not manifest in service or within one year of discharge. CONCLUSION OF LAW Service connection for a right knee disability, to include DJD, is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim for service connection for a right knee disability, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5102, 5103(a), 5103A, 5106 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2013). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is generally required to "notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided . . . that is necessary to substantiate the claim." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2012). As part of that notice, VA must "indicate which portion of that information and evidence, if any, is to be provided by the claimant and which portion, if any, the Secretary . . will attempt to obtain on behalf of the claimant." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Board finds that a VCAA letter dated July 2006 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2013). The July 2006 VCAA letter informed the Veteran of what information or evidence was needed to support his claim, what types of evidence the Veteran was responsible for obtaining and submitting to VA, and which evidence VA would obtain. The July 2006 VCAA notice also explained how VA assigns disability ratings and effective dates. See Dingess, supra. The Board also concludes that VA's duty to assist has been satisfied. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Veteran's service treatment records, VA treatment records, and private treatment records have been associated with the claims file. The Veteran has not identified any additional relevant treatment records for VA to obtain. In this regard, in April 2009, the Board remanded the Veteran's claim so that, among other things, copies of any outstanding VA treatment records from Tennessee dated from June 1986 to February 1998, and from October 2006 to present could be associated with the claims file. Pursuant to the Board's remand directive, the above VA treatment records were subsequently obtained and associated with the claims file. While records from Blanchfield Army Community Hospital in Fort Campbell dating from February 1969 to December 1972 were not found by that facility, the Veteran was notified of such by way of an August 2009 letter. He was informed that if he had the records in his possession that he should submit copies to VA within 30 days of the date of the letter. Therefore, the Board finds that there has been substantial compliance with the Board's remand directives, and that the record contains sufficient evidence to make a decision on the Veteran's claim. See Stegall v. West, 11 Vet. App. 268 (1998). VA's duty to assist also includes the duty to provide a VA examination when the record lacks evidence to decide a veteran's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established in-service event, injury, or disease, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See 38 C.F.R. § 3.159(c)(4) (2013); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In April 2009, the Board remanded the Veteran's claim so that he could be provided with a VA examination, which was provided in September 2009. In December 2011, the Board again remanded the Veteran's claim for a new VA examination because it was unclear whether the VA examiner was aware that the Veteran had performed multiple parachute jumps in service. A new VA examination was provided in February 2012, which examination report includes an etiological opinion but no rationale. Therefore, the AMC obtained an August 2012 VA medical opinion with a supporting rationale. The August 2012 VA medical opinion addressed all the questions posed by the Board in its December 2011 remand. Therefore, the Board finds that there was substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Board finds that the February 2012 VA examination report and August 2012 VA medical opinion are adequate upon which to base a decision with regard to the Veteran's claim. The February 2012 VA examiner reviewed the claims file, interviewed the Veteran, and examined him, and a VA physician in August 2012 reviewed the claims file and provided an etiological opinion with an adequate supporting rationale. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), reversed on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, 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. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. 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) (2013). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2013). To establish a right to compensation for a present disability, a Veteran must show: "(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" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran served on active duty from October 1966 to February 1969. He claims that he has a right knee disability, to include DJD, that is related to service. Specifically, he asserts that his right knee condition is due to several parachute jumps onto hard ground in service at Ft. Campbell and/or Ft. Sill. See Board Hearing Transcript at 22, 26. In that regard, the Board acknowledges that the Veteran's DD Form 214 reflects that he is the recipient of the Parachutist Badge and that he served with an airborne division; therefore, the Board concedes that the Veteran performed several parachute jumps during his training. The Veteran has also alleged that his right knee condition is due to carrying heavy loads (70 to 80 pounds) in Vietnam. As an initial matter, the Board acknowledges that the Veteran served as an infantryman in Vietnam from December 1967 to March 1968, and that he is therefore the recipient of the Combat Infantryman Badge. Also, the Board acknowledges that he is the recipient of the Purple Heart medal due to a gunshot wound he sustained to the left elbow in March 1968. The Board notes, however, that the Veteran does not allege that he injured his right knee in Vietnam in combat, but rather, that he injured it during his training at Ft. Campbell and Ft. Sill parachute jumping. The Veteran clarified at the Board hearing that he never performed a parachute jump in Vietnam. See Transcript at 22. Therefore, the combat presumption provisions of 38 U.S.C.A. § 1154(b) are not for application in that respect. The Board does find the Veteran's reports of carrying heavy loads in Vietnam competent, credible and probative. The Veteran's service treatment records are silent as to any right knee complaints. In fact, on his April 1967 and July 1968 reports of medical history, the Veteran denied experiencing any arthritis, any bone, joint, or other deformity, or a trick or locked knee. Also, examination of his lower extremities at that time was normal. Within one year of service, there is no evidence of any diagnosed right knee arthritic condition (or of any complaints), such that the presumptive service connection provisions for a chronic disease under 38 C.F.R. § 3.309(a) are not for application. A May 1996 VA rheumatology record reflects that the Veteran was noted as having traumatic degenerative arthritis in his left elbow, neck, shoulder, and left ankle, but no notation was made regarding his right knee. May 2005 and June 2005 VA treatment records reflect that the Veteran complained of his right knee giving out on him and of pain. He denied any particular injury. An October 2005 VA orthopedic consultation record reflects that x-rays showed no arthritis in the Veteran's right knee, albeit he was instructed to do quad strengthening exercises to prevent his right knee from giving out. A January 2006 orthopedic record reflects that although he reported intermittent right knee pain, x-rays were normal, range of motion was excellent, and stability was good, and a diagnosis of right knee pain was recorded. Shortly thereafter, an August 2006 Agent Orange Registry examination report notes a history of arthritis of the right shoulder, right knee, and left ankle. A June 2007 primary care VA treatment record reflects the Veteran complained of his right knee giving out, and a diagnosis of right knee osteoarthritis was recorded, but an addendum note the next day reflects the same physician noted that prior films were negative and that the Veteran had the same complaints as in the orthopedic consultation notes dated in October 2005 and January 2006 that showed no instability at that time. A January 2008 primary care VA record reflects diagnosed right knee weakness. An April 2009 VA treatment record reflects that the Veteran was referred to physical therapy for complaints of right knee pain. Subsequent VA treatment records reflect that he has been followed for complaints of right knee pain. A September 2009 VA examination report reflects that the Veteran reported that his knees had been bothering him for a "long time," but that it was worse in the past four to five years. Examination revealed some limitation of motion, with evidence of pain, and an x-ray revealed mild chondrocalcinosis and very slight degenerative changes. The examiner recorded a diagnosis of bilateral knee DJD, and opined that it is less likely as not related to service. The examiner reasoned that there was no record of injury in service, he only reported having jumped once in service and his records show he injured his right shoulder in a jump, not his knee, and there was no post-service record of complaint for a period of over 30 years (until 2005, albeit the Board acknowledges it was noted as 2001 in the opinion, which is the first year of a left knee complaint). The examiner added that advanced age was one of the strongest risk factors for osteoarthritis. As noted in the VCAA section above, a new VA examination was provided in February 2012 because the September 2009 VA examiner did not take into account the fact that the Veteran performed multiple parachute jumps in service. The February 2012 VA examination report reflects, however, that the examiner opined that the Veteran's right knee DJD is less likely than not related to his service but included no supporting rationale. An August 2012 VA medical opinion reflects that a VA physician at the Appeals Management Center opined that based on a review of the claims file, the Veteran's right knee DJD and chondrocalcinosis (diagnosed in the September 2009 VA examination report per the x-rays) are less likely than not caused by his active service. The examiner reasoned that although a history of making parachute landings on hard ground and carrying heavy loads is a plausible reason for knee complaints, his service treatment records are silent as to any complaints, and there is no record of complaint or treatment until over year 30 years post-service. Therefore, the examiner opined that the Veteran's right knee DJD was most likely due to the effects of aging. The Board finds the August 2012 opinion to be the most probative evidence of record as to whether the Veteran's right knee DJD is related to his active service. The physician based the opinion on a review of the entire claims file, and provided a thorough rationale for the conclusion. The Board adds that there is no medical opinion of record that contradicts the August 2012 VA medical opinion. The Veteran testified that he always had pain in his knees and legs from walking all day with heavy loads. He also indicated that his right knee disability was incurred in service because he was a paratrooper and sometimes landed on hard ground. After service, he said that he took over the counter medicine to take care of himself because he did not go to the doctor much. With respect to the aforementioned Board hearing, the Court of Appeals for Veterans Claims held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ noted the current appellate issue at the beginning of the hearing, and asked questions to clarify the Veteran's contentions concerning service incurrence and treatment. Following the hearing, the case was remanded in order to obtain additional medical records and to afford the Veteran a VA examination. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. The Board acknowledges the Veteran's lay assertion that his right knee condition was caused by multiple parachute jumps or carrying heavy loads. The Board finds, however, that he is not competent to etiologically link his current right knee condition to parachute jumps or lifting or carrying he performed over 30 years ago, which requires medical expertise. See Jeandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, continuity is not shown, in part, as the Veteran denied having knee problems in July 1968 and the physical examination of the lower extremities was normal. Regarding knee symptoms after service, it is noted that the mere absence of medical records does not contradict a Veteran's statements about his symptom history. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, if it is determined based upon reliable evidence that there was an extended period of time after service without any manifestations of the claimed condition, then that tends to weigh against a finding of a connection between the disability and service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In this case, the Veteran was seen in the VA rheumatology clinic in May 1996 and noted to have traumatic arthritis in multiple joints but there were no complaints or findings with respect to the right knee. Other VA medical records dating from 1998 to 2001 also do not include any complaints of right knee symptoms. Based upon the language and context of these records, the Board finds that the Veteran was reporting all the problems that he was experiencing at that time. Therefore, his failure to report any complaints with respect to the right knee, is persuasive evidence that he was not then experiencing any relevant problems and outweighs current recollections to the contrary. In summary, the Board finds that the preponderance of the evidence is against granting service connection for a right knee disability, to include DJD, and the benefit-of-the-doubt rule is not for application; there is not an approximate balance of evidence. See 38 U.S.C.A. § 5107(b). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for a right knee disability, to include DJD, is denied. ______________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs