Citation Nr: 1336158 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 10-11 808 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a left knee disability. 2. Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1990 to March 1998. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois and September 2012 and March 2013 Board remands. In December 2012, the Veteran testified before the undersigned at a Board hearing via videoconference. The hearing transcript is associated with the Virtual VA electronic claims file. Otherwise, a review of the Virtual VA electronic filing system reveals documents that are either duplicative of the evidence in the paper file or are not pertinent to the issues on appeal. A review of the Veterans Benefits Management System reveals no documents pertinent to this appeal. The Board has reviewed all electronic and paper records associated with this file. FINDINGS OF FACT 1. A left knee disability did not manifest during service or within one year of service discharge, and is not otherwise related to active service. 2. A right knee disability did not manifest during service or within one year of service discharge, and is not otherwise related to active service. CONCLUSIONS OF LAW 1. A left knee disability was not incurred in or aggravated by active service and is not presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 2. A right knee disability was not incurred in or aggravated by active service and is not presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and medical or lay 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. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). This notice must be provided prior to an initial RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). VCAA notice requirements apply to all five elements of a service connection 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). Defective timing or content of VCAA notice is not prejudicial to a claimant if the error does not affect the essential fairness of the adjudication, such as where (1) the claimant demonstrates actual knowledge of the content of the required notice; (2) a reasonable person could be expected to understand from the notice what was needed; or (3) a benefit could not have been awarded as a matter of law. Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007), rev'd on other grounds, Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009). Defective timing may be cured by a fully compliant notice letter followed by a readjudication of the claim. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, VA's duty to notify has been satisfied. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b). The March 2008 VCAA letter, sent prior to the initial adjudication of the claims in July 2008, provided notice of the requirements for service connection and of what VA will obtain or provide and the information and evidence that the claimant must provide. Accordingly, VA's duty to notify has been satisfied. VA's duty to assist the Veteran has also been satisfied. 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(c)(1)-(3). The Veteran's service treatment records (STRs), lay statements, and identified private medical records have been obtained. The Veteran did not receive VA treatment for his knees. The Veteran was provided an opportunity to testify before the Board in December 2012. The undersigned Acting Veterans Law Judge (AVLJ) identified and clarified the issues on appeal and asked questions regarding the onset of his symptoms and current symptomatology. 38 C.F.R. § 3.103. Therefore, the actions of the AVLJ supplemented VA's compliance with the VCAA, and Board finds that it complied with any duties owed during a hearing. Moreover, the Veteran and his representative have not contended otherwise. The Board notes that the May 2013 supplemental statement of the case does not appear to have listed or discussed the RO's initial consideration of the Veteran's Board hearing testimony in connection with the appeal. However, the Board recognizes that this is a harmless error. The Veteran's testimony discussing the intensity of physical training in connection with his duties in service and reports of continuity of symptomatology since service, though relevant, is cumulative of the lay evidence previously considered by the RO in the first instance. Thus, the Board's consideration of the Veteran's hearing testimony herein does not prejudice the Veteran. This appeal has been remanded by the Board in September 2012 and March 2013. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a Court or Board remand confers upon the appellant the right to compliance with that order). The September 2012 remand was for the purpose of obtaining the Veteran a Board hearing, and such hearing was scheduled and conducted. The March 2013 remand directed the RO to schedule the Veteran a VA examination in connection with his appeal, for which the Veteran failed to report. The examination was scheduled for April 2013 and the record indicates that the Veteran was provided notice of the time and place of the examination and the consequences of failing to report for such examination. Such notice letter was sent to the last known address of record and it was not returned as undeliverable. The record does not indicate failure to report due to "good cause." 38 C.F.R. § 3.655(a). Thus, the claims shall be considered herein based on the evidence of record. 38 C.F.R. § 3.655(b). The "duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Accordingly, there has been substantial compliance with the Board's previous remands, VA's duty to assist has been met, and the Board may proceed to adjudication of this appeal. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). As an initial matter, the Board notes that the Veteran does not claim, and the evidence does not reflect, that his disabilities are the result of combat with the enemy. Therefore, the combat provisions of 38 U.S.C.A. § 1154 (West 2002) are not applicable. Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In order to establish service connection, the following must be shown: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, 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 addition, arthritis may be presumed to have been incurred during service if it first became manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)). Lay testimony is competent to establish a diagnosis where the layperson is competent to identify the medical condition, is reporting a contemporaneous medical diagnosis, or describes symptoms that support a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 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). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; 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). In considering the evidence of record under the pertinent laws and regulations, the Board concludes that the Veteran is not entitled to service connection for his left or right knee disabilities for the reasons set forth below. The Veteran specifically avers that his current bilateral knee disabilities are a result of the rigors of physical training and the physical nature of his duties in service as a member of the military police. The Veteran's DD Form 214 confirms his military occupational specialty. A review of the STRs shows no left or right knee complaints, treatment or diagnoses in service. Upon enlistment examination in July 1989, the Veteran's lower extremities and musculoskeletal system were normal. The Veteran denied arthritis, swollen or painful joints, bone/joint deformity, or any issues with his knees on the report of medical history. At the June 1994 periodic examination, the Veteran's lower extremities and musculoskeletal system were normal. The Veteran denied arthritis, swollen or painful joints, bone/joint deformity, or any issues with the knees. Upon separation examination in March 1998, the Veteran's lower extremities and musculoskeletal system were found normal. The Veteran denied arthritis, swollen or painful joints, bone/joint deformity, or any issues with his knees on his separation report. The evidence first documents complaints of knee pain in October 2006. Private treatment records from Dr. M.B. dated in 2005 indicate that an evaluation of the extremities revealed no joint swelling, tenderness or erythema of all joints. An October 2006 private record reveals that the Veteran complained of stiff knees in the morning. At that time, the Veteran reported that being in the Marines affected his knees. In a July 2007 record, the Veteran reported bilateral knee pain, worse in the left knee. He reported having knee pain for several months in the medial and patella region. X-ray studies were ordered. The Veteran indicated that he was a runner and football player for several years. Upon objective examination, the Veteran was assessed with having left knee osteoarthritis (unconfirmed by X-rays) and pain in his knee, etiology undetermined. The Board notes that the evidence does not show that osteoarthritis has been later confirmed by X-ray studies. A February 2010 treatment report by private physician Dr. R.J. shows that the Veteran sought evaluation for his bilateral knee pain. The Veteran reported injury during service while running and that he began having pain in 2005. Various testing was performed for both knees, to include X-ray studies, which revealed patellofemoral knee pain and chondromalacia of the patella. The examiner noted there were no acute fractures, dislocation, or other bony abnormalities. During his Board hearing, the Veteran testified that his knees were injured in service in connection with rigorous physical training, to include running and tackling that he underwent as a military policeman, along with duties such as walking patrol for approximately eight to twelve hours. He did not seek medical treatment for his knees, rather he used over-the-counter pain medication and icing to alleviate his pain. He stated that he did not seek help within a year or two after separation from service. He explained that in service he experienced minor swelling and tightness in his knees due to the rigors of his military occupation. The pain he experienced in service continued to present day and has gotten worse with age and at time exacerbated by colder weather. Lay statements were submitted by D.C. and D.W. D.W., who observed the Veteran immediately post-service, indicated that he noticed the Veteran had difficulty standing and heard him complain of knee pain and discomfort as beginning in service. D.C., who was a member of the military police in the Marines with the Veteran, confirmed the physical rigors of their military duties (prolonged standing and physical training) and noted that the Veteran did not exhibit any evidence of knee pain until enduring the physical aspect of their duties. The Board finds that the evidence of record does not support a finding of direct service connection for either a left or right knee disability. First, there is a current disability in both knees as the evidence of record demonstrates bilateral patellofemoral syndrome and chondromalacia. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167. Second, there is evidence of in-service rigorous physical activity and knee pain during service as the Veteran provided competent and credible testimony and additional lay evidence of the stressful physical training and military duties which he was subject to in service. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167; Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that a lay witness is competent to report to factual matters of which he or she has first-hand knowledge); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The Board does not, however, find the Veteran's statements regarding a knee injury during service credible; this statement directly conflicts with his statements upon service discharge wherein he denied any knee difficulty, and his statements at a 2010 private treatment wherein he denied any prior knee trauma. Caluza, 7 Vet. App. at 511. However, the crux of the matter here involves the issue of a relationship between service and the Veteran's current bilateral knee disabilities. See 38 C.F.R. § 3.303(a) ; Shedden, 381 F.3d at 1167. The Board notes that arthritis was not diagnosed within one year of service discharge, and has not been confirmed by X-ray studies at any point. See 38 C.F.R. §§ 3.307, 3.309. Private treatment records in 2010 expressly noted there were no bony abnormalities. Additionally, there was no notation of a chronic disorder shown in service; thus, continuity of symptomatology is not an appropriate theory of entitlement to service connection in this case. See 38 C.F.R. § 3.303(b); Walker, 708 F.3d 1331. There is no medical evidence of record indicating a relationship between the current disabilities and service, including physical rigors of training and/or any knee injury. Although the Veteran was scheduled for an examination, he failed to report. As the Veteran did not report to the examination, the Board's consideration is limited to the evidence contained in the present record. 38 C.F.R. § 3.655(b). Additionally, the Board cannot accord the Veteran's testimony attributing his current knee disabilities to service significant probative value; the Veteran is not competent to provide such a nexus opinion as the determination of the etiology of patellofemoral syndrome and chondromalacia is not capable of lay observation. Such an opinion requires knowledge of the complex workings of knee joints, including the construction of bones, cartilage, and tendons, and the affects of use and injury upon that construction. The etiology of a left or right knee disability which has manifested decades after separation from service is a complex medical matter beyond the expertise of a layperson. Jandreau v. Nicholson, 492 F. 3d 1372 (2007). This is especially true in this case where private treatment records show that the Veteran was a runner/football player for several years, which undoubtedly may have impacted his knees. In this instance, no individual with appropriate expertise has related the Veteran's present knee disabilities to any in-service event. The evidence falls short of suggesting a nexus between the current disabilities and service. Accordingly, direct service connection is not warranted. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claims, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a left knee disability is denied. Service connection for a right knee disability is denied. ____________________________________________ K. MILLIKAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs