Citation Nr: 1334841 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 11-12 731 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for a bilateral knee disability. REPRESENTATION Veteran represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD Rory Reyhan Layne, Associate Counsel INTRODUCTION The Veteran served in the Navy reserves from July 1963 to December 2000, which included active duty from March 1966 to December 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office in Milwaukee, Wisconsin (RO). FINDING OF FACT A bilateral knee disability has not been shown to be causally or etiologically related to the Veteran's active duty service or any period of active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA) service. CONCLUSION OF LAW The criteria for service connection for a bilateral knee disability are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. 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, 3.326(a) (2013). The RO's May 2009 letter advised the Veteran of the elements of the notice requirements. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). This letter also provided the Veteran with notice of what type of information and evidence was needed to establish disability ratings, as well as notice of the type of evidence necessary to establish an effective date. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Accordingly the RO satisfied the notice requirements with respect to the issue on appeal. As to VA's duty to assist, all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran was provided with a VA examination which was thorough and adequate. The medical examination was adequate, as it was based upon a complete review of the evidence of record, consideration of the Veteran's lay statements, and clinical examination of the Veteran, and provides sufficient information on which to adjudicate the claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Additionally, all available VA and private treatment records have been obtained and associated with the claims file. Social Security Administration disability records have also been obtained and associated with the claims file. There is no indication in the record that additional evidence relevant to the issues being decided herein is available and not part of the record. See Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). 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, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 473; see also 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). Legal Criteria for Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In addition, service connection may 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). Service connection for certain chronic diseases, to include arthritis, may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a) (3), 3.309(a). In such cases, these diseases are presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). Active military service includes active duty and any period of ACDUTRA during which the individual was disabled from a disease or an injury incurred in the line of duty, or a period of INACDUTRA during which the individual was disabled from an injury incurred in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). ACDUTRA includes full-time duty in the Armed Forces performed by the Reserves for training purposes. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). INACDUTRA includes duty, other than full-time duty, prescribed for the Reserves. 38 U.S.C.A. § 101(23)(A) (2012). The fact that a claimant has established status as a "veteran" for purposes of other periods of service, such as the Veteran's period of active duty, does not obviate the need to establish that the claimant is also a "veteran" for purposes of the period of ACDUTRA or INACDUTRA where the claim for benefits is premised on a period of ACDUTRA or INACDUTRA. See Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998). When a claim for service connection is based upon an injury that occurred during a period of ACDUTRA or INACDUTRA, presumptive periods and the presumption of sound of condition do not apply, regardless of whether the individual had a prior period of active service. Smith v. Shinseki, 24 Vet. App. 40, 44-46 (2010); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Factual background and analysis The Veteran contends that he sustained injury to his knees due to overuse, attributable to the rigorous training exercises in which he participated. Specifically, the Veteran indicated that his knees were fine until the physical fitness requirements were instituted in the 1980s. However, he has not made any contentions attributing the claimed disability to a specific incident or injury during his active duty, ACDUTRA, or INACDUTRA. The Veteran's active duty service treatment records have been reviewed and are negative for any complaints, treatments, or diagnoses of a bilateral knee disability. Service treatment records from the Veteran's service in the Navy Reserves are similarly negative for any complaints, treatments, or diagnoses of a bilateral knee disability. Post-military private treatment records show that in December 2001 a left knee medial meniscus tear was diagnosed. A March 2002 private treatment record also shows that the Veteran subsequently underwent a bilateral knee scope. In August 2007, a private physician diagnosed degenerative arthritis of both knees. At that time, the Veteran noted a history of bilateral knee pain "for the last ten years," and attributed the injury to "lots of running and officiating." Thereafter, in 2007, the Veteran had a partial right knee replacement. In 2010, he underwent a total replacement of the left knee. In a December 2009 letter, one of the Veteran's private physicians, Dr. Anderson, noted that he had a long history of degenerative joint disease. Dr. Anderson opined that premature cartilage wear and damage could have been due to the Veteran's military physical activity requirement that the Veteran was doing between 1963 and 2000. Also in December 2009, Dr. Staehler diagnosed knee osteoarthritis and degenerative disc disease. Dr. Staehler opined that the cartilage wear and tear could have been due to military physical activity requirements. The Veteran was provided a VA examination in July 2010. The VA examiner stated that in forming an opinion, the Veteran's military service records, service treatment records, and private and VA medical records, were considered; as well as, a physical exam, tests, the Veteran's statements, and a review of current medical literature. During the examination, the Veteran denied having problems with his knees prior to military service, and reported the onset of his symptoms as 1981 when the Reserves instituted running as part of the physical training requirements. He expounded that he hurt his knees in the Seabees, but did not seek medical treatment because he had no problem on active duty and he wanted to stay in service. The examiner also noted the Veteran's statement that he never took any over the counter medication for his knee problems. After speaking with the Veteran, the examiner noted that he was a "[v]ery poor historian as he gives contradictory statements." Following physical examination and diagnostic studies, the diagnosis was degenerative joint disease of both knees with partial replacement of right knee, and total replacement of left knee. The examiner concluded that "[a]ny current disability of either knee is less likely than not . . . . caused by his military training and duties." The examiner explained: Veteran denies any knee problems prior to military service. He passed his enlistment physical. He passed all his annual physicals in service in the Reserves. He denied having a knee problem or ever having a knee problem when he completed his medical history forms in service. He passed all his annual [physical training] tests in the Reserves. He denies any specific injury to his knees. Now he contradicts the testimony he gave when he completed all those forms and says he did have knee problems. That is a serious contradiction. It would seem his statements at the time given would be a better reflection of whether he had knee problems at that time [than] contradictory statements 10 to 43 years later. In a July 2010 letter, another private physician, Dr. Green stated: The [Veteran] retired after 29 years of service in 2000. At that time, he was having significant knee pain and had his knees scoped bilaterally in 2002. . . . he has been a lifelong exerciser secondary to maintaining his fitness requirements in the military. He participated in numerous training exerices . . . . [and] received multiple traumas to his knees bilaterally. He definitely feels that the military service has contributed to his knee problems. I certainly would agree that it is and contributed to his knee pain and eventual knee replacement earlier than the average age of 64. . . . The [Veteran] retired from the military when he was 54 but needed to keep up with the same exercise requirements as the younger individuals in the Seabees. The Veteran also sought a nexus opinion from his private physician, Dr. Cler, in July 2010. Dr. Cler stated that he could not provide a nexus opinion because there was no medical evidence proving that the Veteran's military service caused the cartilage decrease in his knees. In his substantive appeal, the Veteran noted that his service treatment records are silent for complaints of knee pain because he did not complain. He explained that, "[a]s military members, we habitually "suck it up" and "drive on."" . . . . in order to meet the ultimate goal of military retirement, I simply didn't present that my knees hurt. I felt it would be detrimental to my career to admit to this pain, and face the potential physical profile and subsequent medical fitment process." After reviewing the evidence of record, the Board finds that service connection for a bilateral knee disability is not warranted. As an initial matter, the preponderance of the evidence does not show, nor does the Veteran claim, that his bilateral knee disability manifested during or is attributable to his period of active duty service. As discussed above, the Veteran's service treatment records for this time period are negative for reports or diagnoses related to a knee disability. Indeed, the evidence of record does not show a diagnosis of bilateral knee osteoarthritis until many decades following his separation from active duty. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (a lengthy period without treatment is evidence that there has not been a continuity of symptomatology, and weighs heavily against the claim). Accordingly, the evidence does not show that service connection is warranted based on a direct or presumptive basis for the Veteran's period of active duty service. See 38 C.F.R. §§ 3.303, 3.307. There is a current diagnosed bilateral knee disability; however, the Board finds that the competent, credible, and probative evidence of record does not link the Veteran's current bilateral knee disability to any period of ACDUTRA or INACDUTRA. In this regard, the Veteran primarily claims that his bilateral knee disability is related to injuries he incurred during his period of ACDUTRA and INACDUTRA service. The Board also acknowledges the Veteran's contentions that he did not report his bilateral knee problem, and instead choose to "suck it up." His contentions regarding the bilateral knee injury, which is capable of lay observation, is competent evidence of what he actually observed and was within the realm of the Veteran's personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). However, the Board doubts the credibility of that assertion. Here, the Veteran's inconsistencies in reporting the onset of his bilateral knee disability with an initial injury while on ACDUTRA or INACDUTRA outweigh his credibility. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that credibility may be impeached by a showing of inconsistent statements, consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996); Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Specifically, the Veteran's extensive service treatment records, covering over 35 years of service, show no complaints of or treatment for a bilateral knee problem. Moreover, on numerous occasions in-service the Veteran specifically denied the presence of any bilateral knee problem. These denials are notable because the Veteran's service treatment records document a number of other injuries including, but not limited to, a facial laceration, ruptured disc surgery, and treatment for kidney stones. Further weighing against the Veteran's credibility is his extensive service record showing that he consistently performed all his duties and passed all his physical training tests; coupled with his assertion, during the July 2010 VA examination, that he never took any over the counter medication for his claimed knee problems. Finally, in 2007, following the diagnosed meniscus tear and bilateral knee scope in 2002, when degenerative arthritis was diagnosed the Veteran attributed his injury to "lots of running and officiating." Based on the foregoing evidence, the Board concludes that the Veteran's statements regarding the onset of his current bilateral knee disability with an initial injury during his ACDUTRA or INACDUTRA service are not credible. To extent that the Veteran contends that his bilateral knee disability was caused or aggravated by his ACDUTRA and INACDUTRA service, the Board finds that these statements as to medical causation are not competent evidence to establish service connection for a bilateral knee disability. See Jandreau v. Nicholson, 492 F.3d. 1372 (2007). While lay evidence is competent evidence for bilateral knee pain itself, the origin or cause of the Veteran's currently diagnosed bilateral knee disability is not a simple question that can be determined based on mere personal observation by a lay person. The Board therefore finds that whether the Veteran's current bilateral knee disability is related to or was caused by military service does not lie within the range of common experience or common knowledge, but requires special experience or special knowledge. See Jandreau, 492 F.3d at 1376-77; see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Accordingly, the Board finds that the Veteran's lay statements as to medical causation are not competent evidence to establish service connection for a left knee disorder. Id. The Board notes that the claims file contains differing opinions as to whether the Veteran's bilateral knee disability is related to service. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches. See Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App 171 (1991). The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Sklar v. Brown, 5 Vet. App. 140 (1993). The July 2010 VA examiner opined that the Veteran was a poor historian as he gave contradictory statements. The examiner unequivocally concluded that the Veteran's current bilateral knee disability was not related to his military service or duties. In reaching this conclusion, the examiner offered a rationale that was based on a thorough interview of the Veteran and review of the claims file, and was consistent with the other evidence of record. Notably, the VA examiner also acknowledged the positive nexus opinions provided by the Veteran's private physicians. In sum, the Board attaches significant probative value to the VA examiner's opinion. The Board has also considered the December 2009 and July 2010 opinions, provided by the Veteran's private physicians, which related the Veteran's current bilateral knee disability to his military service or duties. Initially, although all three physicians referred to the extensive physical requirements the Veteran had to undertake in the military, it is apparent that they did not review the Veteran's extensive service treatment records for his periods of service. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion). Additionally, the opinions provided by Dr Anderson and Dr. Staehler are speculative in nature. The phrase "could have been due to" constitutes mere speculation as to the etiology of the Veteran's bilateral knee disability. The law provides that service connection may not be based on speculation or remote possibility. 38 C.F.R. § 3.102; Obert, 5 Vet. App. at 33; Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992). It has been observed that statements from doctors which are inconclusive as to the origin of a disease or injury cannot be employed as suggestive of a linkage between the current disorder and the claimed incident of service. Warren v. Brown, 6 Vet. App. 4, 6 (1993); Sklar, 5 Vet. App. at 145-6. Dr. Anderson and Dr. Staehler also did not provide a rationale for their opinions. See also Reonal, 5 Vet. App. At 460. The July 2010 opinion provided by Dr. Green is based on an inaccurate factual premise. See Reonal, 5 Vet. App. at 461. Specifically, Dr. Green premised his conclusion on "multiple traumas" incurred in-service by the Veteran to his knees bilaterally. As detailed above, a review of the Veteran's service treatment and department record show that he did not complain of and was not treated for a bilateral knee problem in service. See also Reonal, 5 Vet. App. at 460 (The Board may reject medical opinion based on facts provided by the veteran previously found to be inaccurate). Moreover, the Veteran stated during the July 2010 VA examination that throughout his periods of service he did not take any over the counter medication for his knees. Based on the above, the Board attaches minimal probative value and weight to the opinions provided by the Veteran's private physicians. In sum, the Board finds that the most probative medical evidence of record as to whether the Veteran's current bilateral knee disability is related to his military service or duties is negative to his claim. Accordingly, service connection for a bilateral knee disability is not warranted. In reaching this decision, the Board has considered the benefit of the doubt doctrine when making these findings, but as discussed above, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a bilateral knee disability. 38 U.S.C.A. 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a bilateral knee disability is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs