Citation Nr: 1335103 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 13-11 352 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD C.E. de Jong, Associate Counsel INTRODUCTION The Veteran (appellant) served on active duty from April 1971 to April 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the RO in Milwaukee, Wisconsin, which denied service connection for a left knee condition. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDING OF FACT The Veteran's left knee disability was not caused by or related to his active service. CONCLUSION OF LAW The criteria for service connection for a left knee disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran filed a claim for service connection for a left knee condition in April 2010. The Veteran contends that his current left knee condition, to include osteoarthritis and a meniscus tear, is a result of an injury he sustained while in Korea during service, and that he is therefore entitled to service connection for his current left knee disability. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Veteran has a current diagnosis of osteoarthritis in the left knee, as shown by June to August 2004 and September 2010 treatment records from Dr. R.C. These records reflect that the Veteran underwent a medial meniscectomy in 2004 and a partial knee replacement in 2010. In the Veteran's August 2013 statement, he reported that he also underwent a total knee replacement in June 2013. The private treatment records and the Veteran's statement reporting his surgery are both competent and credible evidence of the Veteran's left knee condition, and thus the Board finds that the Veteran has a current left knee disability and the first element of his claim of entitlement to service connection is satisfied. The Veteran contends that sometime in 1971 or 1972 while he was stationed at Camp Red Cloud in Korea, he fell and sustained a laceration to his left knee which required 7 to 8 stitches to close. In his April 2013 statement, the Veteran asserted that the injury occurred after hours and that the medical personnel who treated his wound were all Koreans and "they were just enlisted men that stitched [him] up." There is no mention in the Veteran's service treatment records of a left knee injury. The Veteran asserted in his April 2013 statement that the lack of medical records could be explained by the fact that the medics who treated his injury were Korean military personnel serving alongside U.S. soldiers, and they did not speak English. The Veteran's March 1974 separation examination did not indicate any abnormality in the lower extremities or musculoskeletal system and upon examination the Veteran reported that he was in good health, providing factual evidence against his own claim. The Veteran asserts that he developed a scar on the left knee as a result of his in-service injury. However, his separation examination did not note a left knee scar, although the examiner did note scars on both the right arm and the chest. Such a fact is important as two scars were cited, but not the scar in question. The Board notes that the absence of evidence may not generally be considered as substantive "negative evidence". McLendon v. Nicholson, 20 Vet. App. 79, 85 (2006); see also Forshey v. Principi, 284 F.3d 1335, 1363 (Fed. Cir. 2002) (en banc) (Mayer, C.J., dissenting) (distinguishing between the existence of negative evidence and the absence of actual evidence and noting that "[t]he absence of actual evidence is not substantive 'negative evidence' "). However, in some situations, silence to a condition may be taken as proof that the doctor did not observe the symptom. Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). Moreover, the absence of an entry in a record may be evidence against the existence of a fact if it would ordinarily be recorded. Fed. R. Evid. 803 (7). The Veteran's asserted in-service injury was serious enough to require many stitches, and as such, is the type of injury that would have ordinarily been recorded in service treatment records. The Veteran's service treatment records appear to be complete. Therefore, the fact that the Veteran's service treatment records are silent for any mention of this injury or treatment for it is strong evidence against the Veteran's assertions. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (VA may use silence in the service treatment records as evidence contradictory to a veteran's assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred). Furthermore, the fact that the examiner did not note a left knee scar at separation, while noting scars on the right arm and chest, is strong evidence that there was no left knee scar present at the time of the Veteran's separation from service. See id. The Veteran did not report the injury, the scar, or any symptoms of a left knee condition to the examiner at separation, and the examiner's silence as to a left knee condition, including a scar, may be taken as proof that the examiner did not observe such a condition. See Buczynski, supra. There is significant competent and credible evidence of record, coming from the Veteran himself, that squarely contradicts the Veteran's current assertions of an in-service injury, and although the Veteran is competent to report his experiences during service, the Board finds his assertions of an in-service injury to be incredible. There is no other evidence of record regarding an in-service injury, and thus the second element of the Veteran's claim of entitlement to service connection is not satisfied. As there is no competent and credible evidence of an in-service injury, there is also no competent and credible evidence of a relationship between the Veteran's asserted in-service injury, and the third element of his claim of entitlement to service connection cannot be satisfied. The Veteran reported in his June 2010 statement that at the time of his injury he had "occurring [sic] incidents of discomfort and pain that would come and go" and that "over time the incidents would come and go more often and more severe." He further reported that "[he] would control or maintain daily tasks by taking 800 mg ibuprofen 1 to 3 times daily for left knee injury that cause [sic] or started osteoarthritis." The Veteran, as a layperson, is competent to report his observable symptoms, such as knee pain, but the Veteran lacks the medical training and expertise to provide a complex medical opinion as to the etiology of his osteoarthritis. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran has not submitted any statements from medical professionals as to the relationship between his current left knee condition and his service, nor has he reported being told by a medical professional that his left knee condition is related to service. In his August 2013 statement, the Veteran reported that he had asked Dr. R.C. about such a relationship in 2004, and that Dr. R.C. had said "he couldn't say yes or no, if it could've been the start of a meniscus tear left knee." This does not support, or refute, this claim. As there is no competent and credible evidence of an in-service injury and no competent evidence of a relationship between the Veteran's current left knee condition and his service, his claim of entitlement to service connection cannot be granted on a direct basis. Although the Veteran's claim of entitlement to service connection cannot be granted on a direct basis, a claim must nevertheless be reviewed to determine whether service connection can be established on another basis. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). In this case, the Veteran could be afforded a presumption of service connection based on a chronic disease. He has a current diagnosis of osteoarthritis. Arthritis is classified as a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. In this case, the evidence does not show any manifestations of arthritis during service, nor does the evidence show continuity of arthritis symptoms from the time of the Veteran's service to his current diagnosis. The Veteran was afforded a VA examination for purposes of disability evaluation in 1983, at which time the Veteran's musculoskeletal system was noted to be normal, providing some limited evidence against this claim. Further, when the Veteran presented to Dr. R.C. in 2004, he reported a 10 year history of pain in his left knee, which indicates that his knee pain began in 1994, 20 years after his separation from service, providing more evidence against this claim. As noted above, the Veteran has reported "occurring [sic] incidents of discomfort and pain that would come and go" after his asserted injury, but this statement cannot be read as a report of continuous arthritis symptoms from the time of his service to the present. Mere allegations of joint pain are not sufficient to identify arthritis. See 38 C.F.R. 3.303(b). The Veteran's arthritis also did not manifest within one year of his separation from service. The Veteran was diagnosed with arthritis in 2010, and reported left knee pain beginning in 1994, respectively 36 years and 20 years after his separation from service. Therefore, the chronic disease presumption cannot be applied and presumptive service connection based on a chronic disease is not warranted. In this case, the Board finds that the evidence cite above outweighs the Veteran's recollection of events in service. The Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection on both a presumptive and direct basis. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's claim of entitlement to service connection for a left knee condition. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and 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). 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. Compliance with the first element requires notice of the five service connection elements: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. See 38 U.S.C.A. § 5103(a); see also Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). A May 2010 letter fully satisfied the duty to notify provisions prior to initial adjudication of the Veteran's claim in September 2010. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The Board also concludes VA's duty to assist in obtaining records has been satisfied. The Veteran's service treatment records and VA medical records are in the file. The Veteran's private treatment records have been obtained to the extent possible. The Veteran has provided the names and service serial numbers of two fellow service members, and he contends that they have personal knowledge of his in-service injury and could provide supporting evidence for his claim. However, VA has repeatedly notified the Veteran that VA may not attempt to contact these fellow service members without authorized releases from the Veteran, as well as complete addresses provided by the Veteran. VA has also repeatedly notified the Veteran that it is ultimately his responsibility to ensure that VA receives this evidence. The Board concludes VA has satisfied its duty to assist the Veteran in obtaining these records. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. A medical examination or opinion is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient competent medical evidence to decide the case. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c); McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. 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 v. Nicholson, 20 Vet. App. 79 (2006). The Federal Circuit has addressed the appropriate standard to be applied in determining whether an examination is warranted. In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service (as in this case) would not suffice to meet the standards, as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279. Here, as the only evidence that the Veteran's claimed disability is related to military service is the conclusory generalized lay statements of the Veteran, which are unsupported by even speculative medical evidence. There is also significant factual evidence, as cited above, against the Veteran's lay evidence. Accordingly, the Board finds that referral for a VA medical examination is not warranted. ORDER Entitlement to service connection for a left knee disability is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs