Citation Nr: 1334311 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 12-23 691 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Havivi, Associate Counsel INTRODUCTION The Veteran had active service from May 1944 to February 1946, December 1947 to November 1951, in the Navy, and from April 1952 to July 1966, in the Air Force. This matter comes before the Board of Veterans' Appeals Board on appeal from an October 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. Jurisdiction of the claims file rests with the RO in Montgomery, Alabama. The issues of entitlement to service connection for a low back disability and hypertension and entitlement to a total rating have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. A review of the Virtual VA paperless claims processing system and the Veterans Benefits Management System reveals no additional records which are pertinent to the present appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran currently has a right knee disability. 2. There is no evidence of an in-service event or injury involving the Veteran's right knee. Arthritis was first demonstrated many years after service and is unrelated to in-service occurrence or event. CONCLUSION OF LAW The criteria for service connection for a right knee disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, 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. This notice must be provided prior to an initial unfavorable decision on a claim by the AOJ. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) includes notice that a disability rating and an effective date for the award of benefits will be assigned if the claim is granted. In the instant case, the RO sent a June 2010 notification letter which satisfied the notice requirements. VA also has a duty to assist the Veteran in the development of the claim, which includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the Board finds that all necessary development has been accomplished, as the record includes the Veteran's service treatment records, private treatment records, lay statements and VA outpatient treatment records. Therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The duty to assist also includes providing an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). There must be an indication of a link between current disability and service. Waters v. Shinseki, 601 F.3d 1274, 1277 (Fed. Cir. 2010). The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon, 20 Vet. App. at 83. The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006). VA did not provide an examination in the instant case. VA was not required to provide an examination because there was no sign that the disability "may be associated" with active service nor was there any event or injury in service with which there might be a nexus. The only evidence indicating a link to service is the Veteran's bare conclusory statement that his knee disability was related to service. The Federal Circuit has held "...in the absence of any medical evidence, [the Veteran]s' own conclusory statements regarding causation were insufficient to establish the necessary nexus between his in-service [disability] and his present ailments." Waters, 601 F.3d at 1278. While a private doctor states that the Veteran's knee "could be" related to service, the statement is unsupported by any evidence other than the Veteran's lay statement. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of his claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002). Merits of the Claim The Veteran seeks service connection for a right knee disability. Having carefully considered the claims in light of the record and the applicable law, the Board is of the opinion that the criteria for entitlement to service connection for a knee disability have not been met. Service connection will be granted if it is shown that a Veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the 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 was incurred in service alone is not enough. Instead, there must be a disability resulting from that injury. 38 C.F.R. § 3.303. Generally, to prove service connection, the record must contain evidence concerning: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and a disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In certain cases, competent lay evidence may demonstrate the presence of any of these elements. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In the instant case, the Veteran has a current right knee disability which was diagnosed in March 1996 as a torn lateral meniscus. As discussed below, there is no evidence of an in-service event or injury and therefore the Board cannot proceed to the nexus step of the Shedden test. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for some diseases, such as arthritis, may be presumed to have been incurred in service where manifested to a compensable degree within 1year of separation from qualifying service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record. 38 U.S.C.A. § 7104(a). In addition, the Board must consider all information and lay medical evidence. 38 U.S.C.A. § 5107(b). In doing so, it is the Board's fundamental responsibility to evaluate the probative value of all medical and lay evidence. See Owens v. Brown, 7 Vet. App. 429 (1995). In the evaluation of evidence, VA adjudicators may properly consider internal inconsistency, facial plausibility and consistency with other evidence submitted on behalf of the Veteran. See Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). It has also been observed that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence." Madden v. Brown, 125 F. 3d 1447, 1481 (Fed. Cir. 1997). In this case, the Board must evaluate the Veteran's service treatment records, lay statements, VA outpatient treatment and private medical records. There is no evidence of an in-service injury other than the Veteran's claim. The Veteran's extensive service treatment records do not show any in-service treatment for a knee injury. Furthermore, because the Veteran had several separate periods of active service, he also had enlistment and separation examinations for each. There is no evidence of a knee injury or disability in any of these examinations either. In fact, the first mention of any treatment related to his knee is in November 1995 when the Veteran sought treatment for his back. It was not until March 1996, 30 years after service, that the Veteran was diagnosed with a lateral meniscus tear, and subsequently, other knee disabilities such as degenerative joint disease and chondroplasty of the patellofemoral joint. Evidence of a prolonged period without medical complaint and the amount of time that elapsed since service can be considered. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). While the Veteran is competent to describe the symptoms of a knee disability, such as pain, the Board finds that his statement regarding an in-service knee injury to have little credibility. The Veteran filed a July 2010 claim for his right knee disability, stating it was due to his Navy service. He reiterates this claim in his July 2012 VA-9 Form. As discussed above, there are no service records that indicate any knee injury. Furthermore, the Veteran does not describe the event or injury to his knee. He simply states that it occurred in his Navy service. Because there is neither corroborating evidence nor any supporting details, the Board cannot find the Veteran's statement credible. Moreover, the Veteran had extensive service in the Air Force after his Navy duty and at no time do those records reflect any pertinent complaints or findings. The record includes a nexus letter from the Veteran's private physician, but it carries little probative weight. The doctor is competent and credible, but offers an opinion that is speculative at best. The doctor states without explanation that the Veteran had an in-service knee injury that "certainly could have been related" to his current knee disability. A bare transcription of lay history is not transformed into competent medical evidence simply because it was transcribed by a medical professional, whether that professional is a VA or private physician. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Moreover, the Board considers it significant that the doctor did not indicate having reviewed the Veteran's service medical records. Accordingly, the letter, while a statement by competent medical professional, is of little probative value and does not constitute competent medical evidence of a nexus between the Veteran's current knee disability and active service to the extent that it is based solely on reported assertions of the Veteran that have been found to not be credible. As the doctor also did not provide rationale for his opinion, it can be afforded little probative weight. Stefl v. Nicholson, 21 Vet. App. 120 (2007). The Veteran has also been diagnosed with degenerative joint disease (arthritis). As there are no mentions of this disability in his service treatment records or within a year of his retirement from service, this disability also fails in the in-service requirement of the Shedden test. The first indications of degenerative joint changes in the Veteran were seen in November 1995. For the reasons discussed above, service connection cannot be granted for arthritis. While the Board has carefully reviewed the record, we conclude that the preponderance of the evidence is against the claim. The Board has also considered the benefit of the doubt rule in this case, but as the private doctor's conclusion is speculative and there is no evidence of an in-service knee injury outside of the Veteran's claim, the evidence is not in equipoise, and there is no basis to apply the benefit of the doubt rule. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection for a right knee disability cannot be granted. ORDER Entitlement to service connection for a right knee disability is denied. ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs