Citation Nr: 1335864 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 10-22 208 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for a bilateral knee disorder, to include as secondary to a service-connected left ankle disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran served on active duty from March 1978 to September 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office in Louisville, Kentucky (RO). FINDINGS OF FACT 1. The evidence shows diagnoses of current bilateral knee disabilities including osteoarthritis and patellar tendonitis. 2. Arthritis of the knees was not present in service or manifested in the first post service year. 3. Service treatment records are negative for complaints, treatment, or diagnoses of a knee disorder in service. 4. The earliest documented evidence of treatment for knee disabilities is dated decades after the Veteran separated from active military service. 5. Service-connection is in effect for residuals of a fracture of the left ankle and a left eye disability. 6. There is no probative evidence linking a current knee disorder to active duty service or to a service-connected disability. CONCLUSION OF LAW A bilateral knee disorder was not incurred in, or aggravated by, active military service, may not be presumed to have been incurred in such service, and is not due to, or aggravated by, a service-connected disorder. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). The Veteran has been provided the requisite notice with respect to his claim for service connection for a bilateral knee disorder in letters dated August and September 2009, which were prior to the initial RO rating decision denying the benefit sought. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice. See 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); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). VA has obtained available service treatment records; private medical records; VA medical records; VA examination reports, assisted the Veteran in obtaining evidence; and, afforded him the opportunity to present testimony, written statements and evidence. All known, identified, and available records relevant to the issue on appeal have been obtained and associated with the evidence of record and he has not contended otherwise. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran was afforded a VA examination in conjunction with his claim for entitlement to service connection and the examination is adequate. There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (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 the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess, 19 Vet. App. at 486; Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Veteran seeks entitlement to service connection for a bilateral knee disorder. He initially claimed that a bilateral knee disorder began in service when he injured his knees during the constant physical training, road marches, and field exercises that were required in service. He further alleges that while in service, he fell from a trailer and injured both knees. The Veteran also asserts that a bilateral knee disorder developed secondary to his service-connected left ankle disorder. Service connection may be granted for disability due to a disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. In addition, service connection may be granted for any disease diagnosed after separation, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet. App. 341, 346 (1999). Service connection may also be established on a presumptive basis. Arthritis may be presumed to have been incurred during active military service if it is manifest to a degree of 10 percent within the first year following active service. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309. Review of the service treatment records does not reveal any diagnosis of arthritis of the knees. There is no evidence of a diagnosis of arthritis of the knees being made during service or within the first year after the Veteran separated from service. VA treatment records reveal diagnoses of osteoarthritis of the knees that date from 2006. Finally, service connection may be established on a secondary basis for a disability that is proximately due to or the result of, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists; and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). A review of the Veteran's service treatment records does not reveal any complaint, diagnosis, or treatment for a knee disorder during service. A February 1980 treatment record reveals a report of pain in both legs, which was assessed as being muscle pain. A March 1985 Emergency Care and Treatment report indicated that the Veteran injured his leg falling from a trailer, and that his leg slipped between the wheels of the trailer. The Veteran also reported that a wheel fell on his right foot. The physician noted a 6 by 12 centimeter hematoma with a two-centimeter abrasion on the Veteran's anterior right shin. The diagnosis was a hematoma. A number of other service treatment records reveal treatment for left ankle injuries, for which service connection has already been established. In July 1985 the Veteran completed a report of medical history on which he indicated "no" to the question asking if he had a tick or locked knee. In October 1987, service treatment records record show that the Veteran was recovering from a right ankle sprain, which was resolving, and that he was ordered not to return to physical training or marching for two weeks. At his July 2011 Board videoconference hearing, the Veteran testified that he had bilateral knee pain dating from service, indicating possible treatment by a private physician in 1991 or 1992. However, a review of the Veteran's post-service VA and private treatment records do not reveal a diagnosis of any knee disorder prior to 2006. Private treatment records dated from 1994 to 1996 have been obtained and do not reveal any complaints or treatment for knee pain. VA outpatient treatment records dated in September 2006 show that the Veteran complained of his left knee giving out and knee pain that he treated his pain with over-the-counter pain medication. An assessment of osteoarthritis of the knees was indicated. A diagnosis of degenerative joint disease of the knees is present in subsequent VA treatment records dated in August 2007 and January 2008. An October 2008 Department of Transportation examination report noted a limp, weakness, and impaired mobility of the left leg resulting in impairment of his ability to operate pedals in his employment as a professional driver. However, no specific notation of knee impairment is indicated. An October 2008 note from a VA physician was issued with respect to the impact of the Veteran's service-connected disabilities on the Veteran's employment as a bus driver. The VA physician noted the Veteran's service-connected left ankle and left eye disabilities, but indicated that the Veteran's other disabilities were related to his morbid obesity. The VA physician specifically stated that the Veteran had "weight related degenerative joint disease involving primarily knees." A February 2009 VA x-ray examination report revealed the presence of mild loss of medial joint space of both knees as well and identifying abnormalities related to the left patella tendon. A July 2009 VA treatment record noted a historical diagnosis of bilateral knee arthritis; physical examination revealed "station and gait are normal, no joint deformities." In June 2009, a disability examination of the Veteran for Social Security Disability purposes was conducted. While the examiner notes current diagnoses of arthritis of the knees, it does not link the disability to service or note a reported history of such disability until decades after service. July 2009 VA treatment records reveal that the Veteran was issued knee braces to proved knee support. A September 2009 statement from the treating VA physician stated that the Veteran "suffers with severe osteoarthritis of the knees and is followed by our orthopedic department. His limitations are based on his degenerative joint disease and obesity." No opinion as to the etiology of the bilateral knee disorders was specifically expressed. A December 2009 VA treatment record confirms that the Veteran's complaints of knee pain were being treated by medical injection. The Veteran was afforded a VA joints examination in August 2010, at which time he reported a post service fall injury to the knees in 2009. Range of motion testing of the knees revealed severe limitation of motion. However, the examiner noted that the "directly measured [range of motion (ROM)] was significantly reduced compared to indirectly observed ROM and even more reduced compared to recent the ROM measurements by orthopedics at Louisville VA - ROM was normal. . . . Indirectly observed ROM of the knee was at least 90 degrees and was normal at orthopedic appointments." The examiner noted that a December 2009x-ray revealed a negative examination of both knees, and the current February 2010 x-ray examination revealed enthesopathy at the patella of both knees. The examiner's medical opinion was that claimed bilateral knee disorder was not caused by or a result of injury during military service. The examiner explained that the Veteran's two instances of in-service treatment for the right lower extremity were acute and resolved while still in service. The examiner further articulated a concern about the medical history provided by the Veteran with respect to a reported in-service right ankle injury. The examiner commented that the results of the range of motion examination exhibited severe limitation of motion of the knees, while on indirect observation, the range of motion of the knees was at least to 90 degrees, and was reported as normal at prior treatment sessions. The examiner concluded that there were "egregious discrepancies in the Veteran's history and range of motion examination related to the prospect of secondary financial gain." In support of his claim, the Veteran submitted a form from a private physician dated in August 2011. In this form, the physician opined that the Veteran's "ankle + knee injuries" were due to the service-connected conditions of "fractured left ankle, sprained right ankle." The examiner stated that this diagnosis was based on the patient's history alone, as no records were reviewed of the claimed injury. The private physician's reference to the "sprained right ankle" as a service-connected disorder is in error, as is the finding of a knee injury from the fall during service. In March 2012, a VA examination provided a diagnosis of mild osteoarthritis of the right knee and bilateral patellar tendonitis. Range of motion testing of the knees was conducted and revealed normal extension of both knees and flexion to 90 degrees of both knees. The examiner reviewed the evidence of record and concluded that the claimed bilateral knee disorder was "less likely than not" caused by the claimed in-service event or injury. The examiner noted that the Veteran currently had mild osteoarthritis of the right knee, which was not diagnosed by imaging until decades after separation from service. The examiner also noted the Veteran's report of knee injury during service, and that the documented service treatment records confirmed a fall injury, but did not confirm any knee pathology during service. The examiner also stated that the record did not show any connection between the Veteran's service-connected left ankle disorder and the bilateral knee disorder and there was a general lack of supporting evidence that the service-connected left ankle disorder was currently causing any knee disorder. The examiner concluded that it was "less likely as not" that the Veteran's current bilateral knee conditions are caused by, related to, or aggravated by the service-connected left ankle disorder or any event or injury during service. The medical evidence of record does not show a diagnosis of any knee disorder until decades after service. The service treatment records document that the Veteran was treated for hematoma of the right shin in March 1985, and for a right ankle sprain in October 1987. There is no credible evidence of a knee injury or disorder during service and there is no evidence of a diagnosis of arthritis within the first year after separation from service. The VA medical examiner in October 2008 specifically opined that the Veteran's current bilateral knee disorder is weight-related. The medical VA examiners in 2010 and 2013 opined that the current bilateral knee disorders were unrelated to service, an injury during service, or to the service-connected left ankle disability. To the extent that the August 2011 private medical opinion links the Veteran's current knee disabilities to service and the service-connected left ankle disability, the opinion is not probative as it is based upon an incorrect factual basis. Reonal v. Brown, 5 Vet. App. 458 (1993). To the extent that the Veteran claims that he has had bilateral pain continuously during service and since his service discharge, the Board finds the Veteran's statements of continued pain are inconsistent throughout the record and are not consistent with the medical and other evidence of record. Therefore, his statements of continued pain are not deemed credible. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Accordingly, the preponderance of the evidence is against the claim of entitlement to service connection for a bilateral knee disorder; the benefit-of-the-doubt rule does not apply and service connection for a bilateral knee disorder is not warranted. Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for a bilateral knee disorder, to include as secondary to a service-connected left ankle disorder is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs