Citation Nr: 1334894	
Decision Date: 10/31/13    Archive Date: 11/06/13

DOCKET NO.  08-39 363	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUE

Entitlement to service connection for a left knee disorder.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

C.A. Skow, Counsel



INTRODUCTION

The Veteran served on active duty from May 1975 to April 1979.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied the benefits sought on appeal.  The appeal was subsequently transferred to the RO in Louisville, Kentucky.

The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim.  A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal.


FINDINGS OF FACT

1.  No defect of the left knee was noted on the Veteran's March 1975 enlistment examination, clinical evaluation was normal and the Veteran denied bone, joint, and knee problems.

2.  The Veteran's self report, both during service in 1977 and again post service in 2008, that he sustained a left knee injury at about age 16 is clear and unmistakable evidence that he had an injury to the left knee prior to service entry.

3.  The absence of any documented complaints or treatment intervening service and 2008, coupled with report of VA examination dated in January 2012 showing that the preexisting left knee disorder was not permanently aggravated beyond normal progression in service or due to service, is clear and unmistakable evidence that the preexisting left knee condition was not aggravated in service.

4.  Osteoarthritis is not shown in service or within the initial post separation year.


CONCLUSION OF LAW

The criteria for service connection for a left knee disability to include osteoarthritis are not met.  38U.S.C.A. §§ 1110, 1111, 1131, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304(b), 3.306, 3.309 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), 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.  Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008.

The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held the plain language of 38 U.S.C.A. § 5103(a) requires notice to a claimant pursuant to the VCAA be provided "at the time" 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 articulated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

The record reflects that VA sent to the Veteran all required notice in a December 2007 letter, prior to the rating decision on appeal.

The Board also finds the Veteran has been afforded adequate assistance in regard to the claim on appeal.  VA obtained the Veteran's service treatment records (STRs) along with all other relevant medical treatment records identified by the Veteran.  These records have been associated with the claims file.  VA further afforded the Veteran an appropriate VA medical examination.  The Board previously remanded the claim in December 2011 for a VA examination.  In January 2012, a VA examination was conducted.  The Board has reviewed the January 2012 VA examination and finds substantial compliance with the directives contained in the Board's prior remand decision.  See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).

Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the Veteran's claim; the Board is also unaware of any such evidence.

Accordingly, the Board will address the merits of the claim.

II. Service Connection

The Veteran seeks compensation for a left knee disability.  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 (2013); 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.

Legal Criteria

Initially, the Board notes the Veteran does not assert that his claimed problems are a result of combat.  Therefore, the provisions of 38 U.S.C.A. § 1154(b) are not for application in this matter.  Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131.  Service connection basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein.  38 C.F.R. § 3.303.  Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in- service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303.

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology.  See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); 38 C.F.R. § 3.303(b).  However, the Federal Circuit decision in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), recently held the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a).

Arthritis shall be considered to have been incurred in or aggravated by service although not otherwise established during the period of service if manifested to a compensable degree within one year following service in a period of war or following peacetime service on or after January 1, 1947.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131; 38 C.F.R. §§ 3.307(a) (3), 3.309(a).

A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for active service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service.  Only such conditions as are recorded in examination reports are to be considered as noted.  38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b).

A pre-existing injury or disease will be considered to have been aggravated by active military, naval or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a).  Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying disability, as contrasted to the symptoms of that disability, has worsened.  See Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991).  Clear and unmistakable evidence (obvious and manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service.  38 C.F.R. § 3.306(b).

To rebut the presumption of sound condition, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service.  VAOPGCPREC 3-03 (July 16, 2003).  The clear and unmistakable evidence standard requires that the result be undebatable.  Cotant v. West, 17 Vet. App. 116, 131 (2003).  In considering the effect of section 1111 on claims for service-connected disability, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has stated that the government may show a lack of aggravation by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition.  Wagner v. Principi, 370 F.3d 1089, 1094-96 (Fed. Cir. 2004) (citing 38 U.S.C.A. § 1153).

The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006).  It is noted that competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").  In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. 498 (1995).

A layperson (non-expert) can provide competent evidence as to events witnessed by the person and symptoms experience by the person, both as to kind and date of the event or symptoms.  See Layno supra, 470 (explaining that "lay testimony is competent only so long as it remains centered upon matters within the knowledge and personal observations of the witness").


Analysis

Having carefully reviewed the evidence of record, the Board finds that the weight of the evidence is against the claim.

VA received a claim for compensation from the Veteran in October 2007, roughly 28 years following his service discharge.  He reported that a left knee disability began in 1975 and treatment from 1975 to 2007 in Orlando, Florida.  Although VA requested the names and addresses of his private medical care providers in a December 2007 letter, no response was received from the Veteran in this regard.  To date, the Veteran has provided no explanation as to why he believes compensation is warranted.  He indicated in March 2008 that all his medical records were located at the VA Medical Center in Cincinnati, Ohio.  In support of his claim, the Veteran submitted a photo.  This photo shows a group of adolescent boys, with one identified by the Veteran as himself with a something (bandage or ice) on the right knee.  At this time, the Veteran reported that he had had a right knee injury prior to service.

Service treatment records show an isolated complaint involving the left knee.  In May 1977, the Veteran presented with complaint that the left knee gave out while going down a ladder, and that he now had pain and swelling.  By history, 5 years earlier, both knees gave out when playing football.  The Veteran reported that he had torn ligaments, had edema, which was drained, but no other treatment.  Physical examination showed no deformity, swelling, tenderness, crepitus, or edema.  There was full range of motion.  The assessment was possible torn medial meniscus secondary to old trauma.  An Ace bandage was applied and the Veteran was advised to elevate and not to engage in heavy lifting or climbing.  He received a referral for follow-up on return to port.  Subsequently dated service treatment records show no complaints or findings for the left knee.

Also, a January 2008 VA treatment record shows a medical history for longstanding bilateral knee pain with a history of injury at age 16 to the left knee while active in football (treated with crutches and brace).  The Veteran reported bilateral knee pain that for the past 10 years with swelling and instability, but denied any treatment for these complaints.  An x-ray study showed bilateral knee arthritis.

A January 2012 VA medical opinion reflects that left knee disability existed prior to the Veteran's entry into service and did not undergo a chronic and permanent increase in severity during service supports this finding.  The physician explained that the Veteran's statements established that he had an injury to the left knee prior to service and that there was no aggravation in service based on the isolated complaint with an essentially normal examination at that time, coupled with the absence of any follow-up care for knee.  The January 2012 VA medical opinion reflects that the single episode of left knee giving out in service "healed without residuals and did not aggravate his preexisting condition."

Based on the above, with respect to left knee disability, the Board finds that the presumption of soundness upon service entry is rebutted as to this disorder because there is clear and unmistakable evidence that the injury existed prior to service and that the injury was not aggravated by service.  VAOPGCPREC 3-03 (July 16, 2003); see Cotant at 131 (2003).  The Veteran's statements concerning injury to the left knee given during treatment in service and after service are highly credible because truthfulness may reasonably be expected when seeking treatment for a medical problem.  The service treatment records and January 2012 are also highly probative.  The evidence is undebatable in establishing that the Veteran had a left knee injury prior to service and no aggravation of that injury in service.  Certainly, although the Veteran reported on a single occasion left knee symptoms, the clinical evaluation was essentially normal and there is no indication that the Veteran presented for any follow-up treatment to include his referral on return to port.

To the extent that the Veteran suggests continuity of left knee symptoms (pain, giving-way) only since injuring his knee in service, the Board finds that he is competent to report his symptoms and treatment.  Layno, supra.  However, the Board finds that the suggestion of continuity of symptomatology is not credible in view of the January 2008 VA treatment record showing a history longstanding knee problems, left knee injury while active in football at age 16, and pain only the past 10 years in both knees.  The Board assigns greater probative value to the medical evidence of record as this was prepared by skilled, neutral, medical professionals and, in the case of the January 2012 VA medical opinion, was prepared after examination of the Veteran and obtaining a history from the Veteran in addition to review of the entire claims file.

Accordingly, a left knee disability was neither incurred in nor aggravated by service and, therefore, the claim is denied.  


ORDER

Service connection for a left knee disability is denied.




____________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs