Citation Nr: 1334520 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 10-09 640 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for right knee disability. 2. Entitlement to service connection for left knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The Veteran served on active duty from February 1963 to September 1968 and also had additional service in the National Guard from August 1976 to March 1981 with various periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). This appeal is before the Board of Veterans' Appeals (Board) from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Veteran was afforded a hearing before a Decision Review Officer (DRO) of the RO in June 2010. A transcript of the proceeding is of record. The record before the Board consisits of the Veteran's paper claims files and an electronic file known as Virtual VA. FINDINGS OF FACT 1. A right knee disorder was not present until more than one year after the Veteran's discharge from his extended period of active service, was not present during his periods of service in the reserves, and is not etiologically related to service. 2. A left knee disorder was not present until more than one year after the Veteran's discharge from his extended period of active service, was not present during his periods of service in the reserves, and is not etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right knee disability have not been met. 38 U.S.C.A. §§ 101, 106, 1101, 1110, 1112, 1131, 1137, 1154 (West 2002); 38 C.F.R. §§ 3.6, 3.303, 3.304, 3.307, 3.309 (2012). 2. The criteria for entitlement to service connection for left knee disability have not been met. 38 U.S.C.A. §§ 101, 106, 1101, 1110, 1112, 1131, 1137, 1154 (West 2002); 38 C.F.R. §§ 3.6, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided all required notice in a letter sent to the Veteran in January 2009, prior to the initial adjudication of the claims. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and National Guard records are in the claims folder. All other private or VA medical records identified by the Veteran have been obtained, to the extent possible. Neither the Veteran nor his representative has identified any outstanding, existing evidence that could be obtained to substantiate either claim. The Board is also unaware of any such evidence. In addition, the Veteran was provided a VA examination in January 2013. In addition to examining the Veteran, the examiner reviewed the Veteran's pertinent history and provided opinions with appropriate rationale. Therefore, the Board has found the examination report to be adequate. Accordingly, the Board will address the merits of the claim. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty or active duty for training. 38 U.S.C.A. §§ 101, 106, 1110, 1131 (West 2002); 38 C.F.R. §§ 3.6, 3.303. Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests arthritis to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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 (West 2002); 38 C.F.R. § 3.102 (2009); 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. Factual Background and Analysis The Veteran claims that his bilateral knee disability is related to injuries sustained in a parachute jump during a period of ACDUTRA in 1976. The Veteran's personnel records confirm some ACDUTRA in 1976, but there is no confirmation of the Veteran's claimed 1976 parachute jump injury or treatment for his knees in service. Indeed, the service treatment records are completely negative for evidence of any knee disorder. After service, the record contains voluminous VA and private treatment records from 1985 to the present. Despite the extent of records, the Veteran's in-service knee injuries are not noted in any of the records. Moreover, there is no medical evidence of any knee disorder until decades after service. In 2004 and 2005, the Veteran sought treatment for bilateral knee pain and, ultimately, he underwent a left knee total knee arthroplasty (TKA) in July 2008 followed by a right knee TKA in July 2009. These records do not indicate any connection between the Veteran's service and his bilateral knee disability. The Board acknowledges that the Veteran is competent to describe the details of his in-service parachute jump and the resulting knee injuries. The pertinent inquiry then is whether the Veteran's current bilateral knee disability is etiologically related to the injuries sustained in the parachute jump. The Board concludes they are not. The Veteran was afforded a VA examination in January 2013. The examiner reviewed the Veteran's pertinent history and confirmed the diagnosis of bilateral knee osteoarthritis, status-post TKA. The examiner presumed the in-service parachute jump occurred as described by the Veteran, but still opined that it was less likely than not that the Veteran's current bilateral knee disability was related to in-service parachute jumps. As a rationale, the examiner noted no in-service confirmation of treatment following the jump, and no record of knee complaints or treatment at all until decades after service. The Board finds the examiner's opinion persuasive. It is based on a complete physical examination, consideration of the Veteran's statements and reported medical history, and a thorough review of the claims folders. Also compelling, no medical professional has ever linked the Veteran's bilateral knee disability to any incident of his naval service. Rather, the claims folders contain voluminous post-service medical records dating back to the 1980s, which are completely silent as to any complaints, treatment or diagnoses related to the knees until decades after service. The Board has carefully considered the Veteran's statements and description of in-service events. The examiner also considered his description of in-service events, injury, and symptoms in rendering the opinion. In fact, the examiner presumed the parachute jump and injury occurred as described by the Veteran in rendering the opinion. In short, the evidence of record indicates the Veteran did not develop a chronic disorder of either knee until decades after service; although he performed parachute jumps and possibly injured his knees therein during his National Guard service, no medical professional has attributed any current knee disorder to the in-service parachute jumps. Indeed, there is medical evidence to the contrary. Accordingly, service connection is not warranted for the Veteran's bilateral knee disability. In reaching this decision, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to these claims because the preponderance of the evidence is against the claims. ORDER Entitlement to service connection for right knee disability is denied. Entitlement to service connection for left knee disability is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs