Citation Nr: 1336164 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 10-34 995 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The Veteran had active service from April 1969 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran testified before the undersigned Veterans Law Judge at the RO in October 2012. A transcript of the hearing has been associated with the record. In February 2013, the instant issue was remanded for additional development of the record. The appeal has been returned to the Board following completion of the remand directives. FINDING OF FACT The Veteran's current left knee disability was not manifest in service or within one year of separation from active service; his current left knee disability is unrelated to his service. CONCLUSION OF LAW The Veteran's left knee disability was not incurred in or aggravated by service, and degenerative joint disease of the left knee may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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. VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. A letter dated in October 2009 discussed the evidence necessary to support a claim for service connection. The Veteran was invited to submit or identify relevant evidence. The evidence of record was listed and the Veteran was told how VA would assist him in obtaining additional pertinent evidence. This letter also discussed the manner in which VA determines disability ratings and effective dates. Subsequent letters advised the Veteran of the status of his claim. The content of the notice provided to the Veteran fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. With respect to VA's duty to assist, the Board notes that service treatment records, VA treatment records, and private treatment records have been associated with the claims file. Records have also been obtained from the Social Security Administration (SSA). The Veteran has been afforded a hearing before the undersigned. A VA examination was most recently conducted in April 2013. The Board finds that the examination report is adequate in that the examining physician reviewed the record, interviewed the Veteran, and performed an appropriate examination prior to providing her conclusions. The examination report of record is thorough and consistent with contemporaneous treatment records, and adequately addresses other evidence of record and responds to the questions posed in this appeal. The Veteran has not identified any additional evidence or information which could be obtained to substantiate his claim. The Board is also unaware of any such outstanding evidence or information. As noted, the Veteran also was afforded a hearing before the undersigned during which he presented oral argument in support of his service connection claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ or Decision Review Officer who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ fully explained the issues on appeal during the hearing and asked questions specifically regarding the elements necessary to establish the benefits sought. Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the evidence necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the evidence necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. Analysis Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a claimant 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service incurrence or aggravation of arthritis may be presumed to have been incurred or aggravated if it is manifested to a compensable degree within a year of the Veteran's discharge from service. 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. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b). Service treatment records indicate that the Veteran underwent separation examination in October 1970, five months prior to his separation. At that time, his lower extremities and musculoskeletal examinations were normal. He certified that he was in good health. He was seen with complaints of pain of the fibular head in February 1971. The provider's comment with regard to physical examination is illegible. The treatment note appears to indicate that X-ray was not available. A February 1971 sick slip indicates injury, and the remarks section contains the statement "knee trouble." The Veteran was returned to duty. In March 1971 the Veteran certified that there had been no change in his medical condition since his last separation examination. During a January 2005 examination for SSA purposes, the Veteran stated that he had been bothered by arthritis for five years. He indicated that he had pain including in his knees. He reported that he had undergone surgery for torn cartilage in 1976. The impression was osteoarthritis. A VA X-ray report dated in January 2010 indicates considerable osteoarthritis of the left knee joint. A private record dated in February 2010 notes the Veteran's report of having been injured in service. The provider noted that he had been seeing the Veteran on and off for the previous 30 plus years for problems with the knee. He further noted that the Veteran related his symptoms back to the in-service injury. He concluded that an MRI was needed to determine whether the damage occurred during service in 1971. On VA examination in August 2010, the Veteran's history was reported. The examiner noted that the service records did not indicate any injury to the left knee, and that separation examination in October 1970 was also negative for any left knee condition. The Veteran reported that his knee was injured in February or March 1970, when his knee was struck by a ring while repairing tires. He indicated that he saw his family physician in 1976 for knee pain and had surgery. At that time, he denied history of trauma or injury to the knee following discharge from service. He complained of pain and grinding, as well as locking. He stated that he was unable to bend his knee. Following examination, the diagnosis was degenerative disease of the left knee with mild to moderate loss of function. The examiner opined that the left knee condition was not likely related to service. He reasoned that there was no evidence of any injury to the Veteran's left knee and no evidence of treatment during service. He also pointed out that the separation examination report was negative for any left knee condition. He stated that the Veteran's left knee condition was most likely due to the normal process of aging and or any injury (if any) sustained after service discharge. During his October 2012 hearing, the Veteran testified that he was injured while helping a friend repair a tire. He stated that the rim jumped off and struck his knee. He indicated that he was seen at sick bay. He noted that he noticed instability of his knee within two months of separation from service. He stated that he started seeing his family physician in 1971. He asserted that he was not provided an exit physical on discharge. Statements received by VA in November 2012, from the Veteran's siblings and friends, indicate that the Veteran had problems with his knee at his return from service, and that he had continued to have problems. An additional VA examination was carried out in April 2013. The examiner reviewed the Veteran's history. The Veteran reported that shortly after returning from service, he began to see his local family doctor, until he came to VA in 2006. He stated that he had experienced severe pain since the injury in service. He related that he had roped cattle prior to service and that he tried it again after he got out of the Army. He noted that he could no longer do it because his left leg would not hold him, and he sold his horse. The examiner noted that the Veteran had surgery in 1976, but that the surgical records were no longer available. Following examination, the diagnosis was arthritis/degenerative joint disease of the left knee. The examiner opined that the condition was less likely than not incurred in or caused by the claimed injury in service. He reasoned that, while it was true that the Veteran received a blow from a tire safety rim, it was important to note that the clinic record stated that the Veteran was hit on the fibular head. He noted that the fibular head was anatomically below the actual knee joint by several inches. He also noted that the Veteran had been hard on his knees by doing calf roping and getting hit in the left knee by equipment during a civilian industrial injury accident. He indicated that the Veteran's knee continued to worsen since then. He concluded that the knee condition was more likely related to other traumatic events over his life rather than the in-service occurrence that did not directly involve the knee. Upon careful consideration of the foregoing evidence, the Board concludes that service connection is not warranted. While the evidence reveals that the Veteran has a diagnosis referable to his left knee, the most competent and probative evidence of record does not etiologically link any such diagnosis to service or any incident therein. In this regard, the Board observes that although the Veteran was seen during service with pain in the left femoral head in February 1971, he certified in March 1971 that his health status had not changed since his separation examination, when he certified that he was in good health and his musculoskeletal system was examined and found to be normal. While the record is not entirely clear as to when the Veteran first sought treatment for left knee complaints following service, he has reported that he underwent surgery in 1976, following a post-service industrial accident, which he initially denied having in his August 2010 VA examination. Thus, the current record suggests a remote, post-service onset of complaints related to the Veteran's left knee. Two VA examiners have concluded that a left knee disability is not related to service. They provided reasoned opinions based on a complete review of the Veteran's history, interview, and examination. The more recent April 2013 examiner pointed out that the fibular head, the area the Veteran had identified as painful during service, was anatomically below the actual knee joint by several inches. He concluded that the current knee condition was more likely related to other traumatic events over the Veteran's life than one occurrence that did not directly involve the knee. In assigning high probative value to these opinions, the Board notes that the examiners reviewed the record, obtained a history from the Veteran, and conducted a complete examination. There is no indication that the examiners were not fully aware of the Veteran's past medical history or that they misstated any relevant fact. The Board thus finds the examiners' opinions to be of greater probative value than the Veteran's assertions to the contrary. The Board also acknowledges the Veteran's own assertions that a left knee disability is related to service. It also notes that various lay statements have been submitted attesting to the Veteran's knee problems when he returned from service. A lay person may attest to factual matters of which he has first-hand knowledge, such as subjective complaints and visual observations, and these assertions in that regard are entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). He is competent to report incidents in service and symptoms since then, and his friends and relatives are competent to report what they observe with respect to the Veteran's behavior. They are not, however, competent to render an opinion as to the cause or etiology of the currently diagnosed left knee disability because they do not have the requisite medical knowledge or training, and because such matters are beyond the ability of a lay person to observe. See Rucker v. Brown, 10 Vet. App. 67, 71 (1997). As discussed, the VA examiners considered the Veteran's description of in-service events and the documented history, but ultimately concluded that the current left knee disability is not related to service. The Board finds the most probative evidence of record to be these opinion by the competent VA health care providers. Even if the Veteran's statements asserting that his left disability is related to service were found to be competent, credible and probative, they are still outweighed by the examiners' opinions. The opinions were provided by medical professionals who reviewed the history, interviewed the Veteran and provided opinions supported by rationale. In summary, no medical professional has attributed the Veteran's current left knee disability to service. In that regard, the Board places much more weight on the opinions of the competent VA health care providers who conducted physical examination and reviewed the record, than on the Veteran's assertions that his current left knee disability is related to service. The grant of service connection requires competent evidence to establish a diagnosis and, as in this case, relate the diagnosis to the Veteran's service. While the record contains a diagnosis referable to the Veteran's left knee, the preponderance of the evidence is against finding that this diagnosed disability is related to any injury or disease in service. The Board finds that the negative record at service discharge and for years following service is more probative than the Veteran's more recent statements. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As a final matter, the first documented diagnosis of arthritis of record was in January 2010, and the first mention (without x-ray proof) was in January 2000. These are both well beyond the Veteran's 1971 separation from service. Therefore, presumptive service connection is not available for the Veteran's arthritis, as it did not manifest to a compensable degree within one year of separation. Absent credible and competent lay or medical evidence relating this claimed disability to service, the Board concludes that the claim of entitlement to service connection must be denied. The preponderance of the evidence is against the Veteran's claim and the doctrine of reasonable doubt is not applicable in the instant appeal. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990); 38 C.F.R. § 3.102 (2013). ORDER Entitlement to service connection for a left knee disability is denied. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs