Citation Nr: 1335901 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 07-37 509 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL The appellant ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The Veteran had active duty for training from May 13 to September 18, 1975 and from July 8 to July 22, 1989, with additional unverified training with the United States Army Reserves from September 1975 to June 2002. This case initially came before the Board of Veterans' Appeals (Board) on appeal of a February 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In a rating decision of May 2010, the RO granted entitlement to service connection for degenerative joint disease of the left knee. Moreover, in a subsequent rating decision of May 2013, the RO additionally granted entitlement to service connection for narrow angle glaucoma as the residual of injury to the left eye. Accordingly, those issues, which were formerly on appeal, are no longer before the Board. A review of the record in this case indicates that, in May 2012, the Veteran was afforded a videoconference hearing before one of the signatories to this decision (Acting Judge Mac) regarding the issue currently on appeal. However, due apparently to malfunctioning equipment, no recording or transcript of that hearing was produced. Accordingly, the Veteran was afforded an additional videoconference hearing before two additional Judges (Braeuer and Lyon) in August of 2012. A transcript of this hearing is contained in the claims folder, and will be considered in the context of the Veteran's current appeal. All three Judges will take part in this decision. In a decision of November 2012, the Board denied entitlement to service connection for hypertension and sleep apnea. At that same time, the Board remanded for additional development the issues of entitlement to service connection for a right knee disability and the residuals of injury to the left eye. As noted above, service connection has now been granted for narrow angle glaucoma as the residual of injury to the left eye. Accordingly, the sole issue remaining for appellate review is that of entitlement to service connection for a right knee disability. Review of Virtual VA reveals no records that are pertinent to this appeal. FINDING OF FACT A chronic right knee disability, including osteoarthritis of the right knee, is not shown to have been present during a period or periods of active or inactive duty for training, nor is it the result of any incident or incidents of such active or inactive duty for training. CONCLUSION OF LAW A chronic right knee disability, including osteoarthritis of the right knee, was not incurred in or aggravated by a period or periods of active or inactive duty for training. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131, 5103, 5103A (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) In the case at hand, the requirements of 38 U.S.C.A. §§ 5103 and 5103A (West 2002) have been met. There is no issue as to whether the Veteran was provided the appropriate application form, or the completeness of his application. VA notified the Veteran in November 2006 and December 2012 of the information and evidence needed to substantiate and complete his claim, to include notice of what part of that evidence was to be provided by him, and what part VA would attempt to obtain. VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate his claim. As to the issue currently before the Board, there is no evidence that additional records have yet to be requested, or that additional VA examinations are in order. Moreover, during the Board hearings, the undersigned explained the issue on appeal and asked questions designed to elicit evidence that may have been overlooked with regard to the claim. These actions provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(3). Finally, in reaching this decision, the Board has reviewed all the evidence in the Veteran's claims file, which includes his multiple contentions, including those offered during the course of a videoconference hearing in August 2012, as well as available service treatment records, and both VA (including Virtual VA) and private treatment records and examination reports. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the Veteran's claim, and what the evidence in the claims file shows, or fails to show, with respect to that claim. See Gonzales v. West, 218 F. 3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service Connection The Veteran in this case seeks entitlement to service connection for a right knee disability. In pertinent part, it is contended that the Veteran's current right knee disability had its origin during a period or periods of active military service, specifically, a period or periods of active or inactive duty for training. In that regard, service connection may be granted for disability resulting from disease or injury incurred in or aggravated while performing active duty for training, or injury incurred or aggravated while performing inactive duty training. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131 (West 2002). In addition service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). In order to establish service connection for a claimed disability, there must be competent evidence of that disability; medical, or in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and evidence of a nexus between the claimed inservice disease or injury and the current disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). In the case at hand, only one period of active duty for training, that extending from May 13 to September 18, 1975, has been verified. A second period of active duty for training, extending from July 8 to July 22, 1989, has been accepted by the Board as verified, given that there currently exists a Statement of Medical Examination and Duty Status (DA Form 2173) dated in August 1989, reflecting that the Veteran pulled a muscle in his left leg while performing physical training during that period of active duty for training. However, with the exception of the aforementioned two periods of active duty for training, and despite repeated attempts by the RO, no other period of active duty, active duty for training, or inactive duty for training has been verified. The Veteran has no period of active service of 90 days or more so the one year presumption for service connection is not for application. In that regard, there currently exist no service treatment records whatsoever dating from the Veteran's first period of active duty for training, which is to say, May 13 to September 18, 1975. The sole service treatment record dating from the Veteran's second period of active duty for training, that is, the period from July 8 to July 22, 1989, consists of the aforementioned Statement of Medical Examination and Duty Status dated in late August 1989, reflecting a history of a pulled muscle in the Veteran's left leg during that period of active duty for training. Significantly, there currently exists no evidence that, during either of the two aforementioned verified periods of active duty for training, the Veteran sustained an injury to, or received a diagnosis of or treatment for, problems with his right knee. In point of fact, the earliest clinical indication of the presence of arguably chronic right knee pathology is revealed by a private medical record dated in February 2000, approximately 11 years following the Veteran's discharge from his second verified period of active duty for training, at which time he received treatment for bursitis in his right knee. Interestingly, at the time of that treatment, the Veteran gave a history of right knee pain for only the past three weeks. Moreover, when questioned, the Veteran denied any trauma, and similarly denied any previous history of joint disease or knee injury. While it is true that, in a service treatment record of April 2002, the Veteran voiced complaints of bilateral knee pain and "popping" following running with his company, there is no indication that, to the extent the Veteran experienced right knee problems, those problems arose during a verified period of active or inactive duty for training. This form indicated that the complaints treated were not "deployment related." No other duty treatment is shown. The Board observes that, following a VA orthopedic examination in December 2012, which examination, it should be noted, involved a full review of the Veteran's claims folder, it was the opinion of the examining orthopedic surgeon that the Veteran's right knee osteoarthritis with joint effusion was less likely than not incurred in or caused by a claimed inservice injury, event, or illness. This was particularly the case given the lack of adequate documentation to create a nexus between the Veteran's current right knee pathology and the aforementioned April 2002 episode. Significantly, in an addendum to the aforementioned VA orthopedic examination dated in March 2013, that same VA orthopedic surgeon offered his opinion that it was less likely than not the case that the Veteran's right knee condition was incurred during or caused by his military service, in particular, given the inadequate documentation in the Veteran's record to support his contention that his current right knee disability resulted from or was permanently aggravated by his military service. In evaluating the Veteran's claim, the Board has a duty to assess the credibility and weight to be given to the evidence of record. See Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). As noted above, the Veteran has variously attributed the origin of his current right knee pathology to his period or periods of active duty for training. However, the entire weight of the evidence is to the effect that the Veteran's right knee pathology did not have its origin during, and is not in any way the result of, an incident or incidents of the Veteran's two verified periods of active duty for training. Under the circumstances, the Veteran's claim for service connection must be denied. The Board acknowledges the Veteran's testimony regarding the origin of the disability at issue. However, the Board rejects those assertions to the extent that the Veteran seeks to etiologically relate his current right knee disability to a period or periods of active military service. The Veteran's statements and history, when weighed against the objective evidence of record, are neither credible nor of particular probative value. Significantly, the Veteran, as a layperson, is not competent to create the requisite causal nexus for his current right knee disability. Although lay persons are competent to provide opinions on certain medical issues [see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)], the issue as to the etiology of the Veteran's right knee disability falls outside the realm of common knowledge of a layperson. Significantly, evidence which requires medical knowledge must be provided by someone qualified as an expert by knowledge, skill, experience, training, or education, none of which the Veteran possesses. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Based on the aforementioned, the Board is unable to reasonably associate the Veteran's current right knee disability with any incident or incidents of his two verified periods of active duty for training. Accordingly, his claim for service connection must be denied. ORDER Service connection for a right knee disability is denied. _______________________________ _______________________________ M. MAC WAYNE M. BRAEUER Acting Veterans Law Judge, Veterans Law Judge, Board of Veterans' Appeals Board of Veterans' Appeals ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs