Citation Nr: 1335105 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 12-20 669 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUE Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: Hawaii Office of Veterans Services ATTORNEY FOR THE BOARD Chris Miller, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1985 to May 1989. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. FINDING OF FACT The Veteran does not have a right knee disability that is attributable to active military service. CONCLUSION OF LAW The Veteran does not have a right knee disability that is the result of disease or injury incurred in or aggravated by active military service; right knee arthritis may not be presumed to have been incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 Upon receipt of a complete or substantially complete application for benefits, the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating the claim. 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(a) (2012). VA satisfied its duty to notify the Veteran in the development of this claim. Proper VCAA notice must inform the claimant of any information and evidence not in the 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. Quartuccio v. Principi, 16 Vet. App. 183, 186 (2002). These requirements apply to all elements of a claim, including: (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 of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). Proper notice must be provided prior to the initial unfavorable decision. Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). In this case, a February 2011 letter notified the Veteran of the evidence and information necessary to substantiate his claim, the responsibilities of the Veteran and VA in obtaining such evidence, and the evidence and information necessary to establish a disability rating and an effective date, in accordance with Dingess/Hartman. This was prior to the initial adjudication of the Veteran's claim in June 2011. This letter fully complies with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). As such, VA satisfied its duty to notify the Veteran. VA has also satisfied its duty to assist the Veteran in the development of his claim. VA's duty to assist includes assisting the claimant in the procurement of service and other relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO associated the Veteran's service treatment records (STRs) and VA treatment records with the claims file. Although the Veteran has suggested that there are outstanding VA records relevant to his claim, neither the duty to assist nor adjudication of the Veteran's claim require the Board to obtain any such records. The Veteran has indicated that he has tried to obtain the records, but without success. He states that these records detail treatment he received in 1989 for a right knee problem. However, the RO found the Veteran and lay statements submitted in his behalf competent and credible on the issue of an in-service incident. The outstanding records are therefore not necessary evidence on this element. These records are also not necessary to prove a nexus between the Veteran's in-service injury and his current disability. The Veteran has not asserted that they show he had a chronic disability demonstrated at that time, such as arthritis. As discussed below, available VA treatment records dated from 1993 forward indicate no right knee complaint until September 2010. Even if the 1989 records were obtained, they therefore would not establish continuity of symptoms or treatment. Thus, the Board concludes that VA has made every reasonable effort to obtain all records relevant to the Veteran's claim. Secondly, VA satisfied its duty obtain a medical opinion. The Veteran was afforded a VA examination in December 2012, and there is no argument or indication that the report or opinion is inadequate for adjudication purposes. Thus, the medical evidence is sufficient. As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A , or 38 C.F.R. § 3.159. II. Merits of the Claim The Veteran asserts that he injured his right knee while on active duty aboard the U.S.S. Coral Sea in 1989, when he hit his knee while rushing to a drill. He argues that he is entitled to service connection for his current right knee disability, to include degenerative joint disease and anterior cruciate ligament (ACL) laxity. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). To make these determinations, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). For certain listed chronic diseases, including arthritis, service connection will be granted on a presumptive basis if it manifested to a compensable degree within one year following active service. See 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Alternatively, a nexus to service will be presumed where there is continuity of symptomatology since service for a listed chronic disability. See Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Although evidence of record establishes a present disability and an in-service injury, the preponderance of the evidence is against a finding that the Veteran's right knee disability is related to the knee injury sustained in service. A current disability is established. VA treatment records show that the Veteran was diagnosed with degenerative joint disease and ACL laxity in his right knee in November 2010. This is also consistent with the December 2012 VA examination. There is also sufficient evidence of injury to the right knee in service. The Veteran has submitted statements from himself, his former fiancée, L.J., and a fellow servicemember, R.G. Lay statements may serve to support claims by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.159(a); Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The statements of the Veteran and R.G. indicate that, in 1989, the Veteran hurt his knee while rushing to a drill. The Veteran and L.J. state that the Veteran has had knee pain for years after injuring it in service. The Veteran is competent to provide lay evidence with regard to his injury and subsequent pain. R.G. is also competent to report what he witnessed as the Veteran's fellow service member, as is L.J. with regards to what she observed over the course of their relationship. Inasmuch as there is no evidence to the contrary, there is no reason either to doubt that the Veteran injured his knee in service. The remaining element is the existence of a nexus between the Veteran's current disability and his in-service injury. Here, there is no medical evidence linking the disability to service. In this regard, the Veteran's service treatment records, including the separation examination that was conducted shortly after his injury, do not reflect any mention, treatment, or diagnosis of a right knee disability. The Veteran states that he did not seek contemporaneous treatment for his knee because he did not want to delay his separation from service. More importantly, the Veteran did not mention any post-service problems with his right knee for treatment purposes until 2010. A right knee disability is not mentioned in any of his VA treatment records from Texas and Hawaii, which stretch from 1993 onwards. In March 1998, the Veteran reported stiffness, pain, and swelling in his left knee. There was no mention of issues with his right knee. When initially meeting with his primary care physician in Honolulu in April 2002, the Veteran similarly did not mention any problems with his knee. Rather, the Veteran was noted to have normal extremities in April 2002 and June 2007. In June 2007, he affirmatively reported having "no problems" for the past four years. The Board finds these medical reports telling. The records were generated with a view towards ascertaining Veteran's then-current state of fitness and obtaining proper treatment. They are of greater probative value than the statements made subsequently when he began pursuit of his claim for monetary benefits. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (stating that the Board may cite to the Federal Rules of Evidence where they will assist in the articulation of the Board's reasons); Fed.R.Evid. 803(4) (generally finding reliable statements for the purposes of medical diagnosis or treatment). The Board notes that the Veteran asserts that outstanding VA records from 1989 would show that he obtained treatment for his right knee at that time. Even if such records do indeed exist and reflect such information, they would carry little, if any probative value given that the Veteran never sought treatment in the ensuing years, and specifically denied any problems on several occasions. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (stating that a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred during military service, which resulted in a chronic or persistent disorder). (As noted above, he has not asserted that he had a chronic problem diagnosed in 1989, such as arthritis.) The Board also notes that lay evidence may be sufficient to establish a nexus, such as by continuity of symptomology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). While the Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence, the Board may consider a lack of contemporaneous medical evidence as one factor in determining the value of lay evidence. Buchanan, 451 F.3d at 1336-37. There is no medical evidence showing treatment for the Veteran's right knee for over 20 years after his release from service. The lack of medical evidence of ongoing right knee problems, especially because the record shows he had opportunity to report such problems but did not do so, when considered in conjunction with the inconsistency of the Veteran's statements for treatment purposes and for his current claim, weighs against a finding of a nexus between current disability and military service. Similarly, while the Veteran's ex-fiancée is competent to testify as to what she witnessed, the Board does not find her credible. Although her statements are consistent with the Veteran's statements from his claim, both his and her statements are inconsistent with the Veteran's treatment records. As such, they are not credible. Accordingly, the evidence does not establish continuity of symptomology for the Veteran's right knee disability. Additionally, there is no competent evidence linking the Veteran's right knee disability directly to his service. To the extent that the Veteran and L.J. believe that he has a current right knee disability as a result of the injury during service, they are not competent to offer an opinion as to the etiology of his current disability. Rather, this question requires specialized knowledge, training, or experience due to the Veteran's medical history and the involved bodily system, as well as the Board's findings herein that he is not credible with respect to continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The VA examiner opined that the Veteran's in-service injury and his current disability are not related. The examiner supported this conclusion by pointing out that the Veteran made no complaints about his knee in service; his separation examination indicated no problems with his extremities; and his VA treatment records reflect no complaints or evidence of a right knee problem for many years. This is consistent with the Board's credibility findings on the question of continuity of symptoms. There is no medical evidence of record to rebut the VA examiner's opinion against the claim or otherwise diminish its probative weight. See Wray v. Brown, 7 Vet. App. 488, 492-93 (1995). The Veteran is also not entitled to service connection for his right knee degenerative joint disease on a presumptive basis. There is no indication that the Veteran's degenerative joint disease was diagnosed or manifested to a compensable degree within one year of his separation from service. As noted above, the Board finds his statements incredible regarding his symptoms since service, and the first diagnosis of arthritis was by x-ray in 2010. He is not entitled to service connection on a presumptive basis. See 38 C.F.R. §§ 3.307, 3.309. In summary, the evidence does not establish that the Veteran's current right knee disability is the result of disease or injury incurred or aggravated during his military service. The preponderance of the evidence is against the claim. As such, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for a right knee disability is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs