Citation Nr: 1336758 Decision Date: 11/12/13 Archive Date: 11/22/13 DOCKET NO. 12-11 945 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUE Entitlement to service connection for a left lower extremity disorder. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran served on active duty from February 1956 to March 1960. Her primary duties were as a nurse anesthetist, and she continued to practice nursing after service. This case was previously before the Board of Veterans' Appeals (Board) in April 2013, at which time, it was remanded for further development. The Board directed the VA Appeals Management Center (AMC) to ask the Veteran to identify any medical treatment for a left lower extremity disability since service. The Board also directed the AMC to schedule the Veteran for a VA examination to determine the nature and etiology of any left knee disorder found to be present. Following the requested development, the RO continued to deny the Veteran's claim of entitlement to service connection for a disability involving her left lower extremity. Thereafter, the case was returned to the Board for further appellate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The preponderance of the competent evidence of record shows that the Veteran's left lower extremity disability, primarily diagnosed as arthritis and synovitis of the knee, was first manifested after service and that it is unrelated to any incident in service. CONCLUSION OF LAW A left lower extremity disorder, diagnosed primarily as arthritis and synovitis of the knee, is not the result of a disease or injury incurred in or aggravated by service, nor may the arthritis be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 5103, 5103A (West 2002 and Supp. 2013); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duty to Notify and Assist Prior to consideration of the merits of the Veteran's appeal, the Board must determine whether VA has met its statutory duty to assist her in the development of the issue of entitlement to service connection for a left lower extremity disorder. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. After reviewing the record, the Board finds that VA has met that duty. In June 2011, VA received the Veteran's claim, and there is no issue as to providing an appropriate application form or completeness of the application. Following the receipt of that application, VA notified the Veteran of the information and evidence necessary to substantiate and complete her claim, including the evidence to be provided by her and notice of the evidence VA would attempt to obtain. VA informed her of the criteria for service connection, as well as that for rating service-connected disabilities and assigning effective dates, should service connection be granted. Following the notice to the Veteran, VA fulfilled its duty to assist her in obtaining identified and available evidence necessary to substantiate her claim. VA obtained or ensured the presence of records reflecting the Veteran's treatment at a military medical facility from February to April 1962; a March 1985 report from K. L. M, M.D.; records reflecting the Veteran's VA treatment from January 2011 through February 2012; records reflecting the Veteran's November 2010 treatment at the Northeast Methodist Hospital; and records reflecting the Veteran's treatment by or through Methodist Healthcare from November 2011 to February 2012. In May 2013, VA examined the Veteran to determine the nature and etiology of any left lower extremity disorder found to be present. The VA examination report shows that the examiner reviewed the Veteran's medical history; interviewed and examined the Veteran; documented her medical conditions; and rendered diagnoses and opinions consistent with the remainder of the evidence of record. In June 2013, pursuant to the Board remand, the VA examiner reviewed the Veteran's claim folder and issued an additional opinion. Therefore, the Board concludes that the VA examination is adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2009); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). In developing the evidence, the RO requested the Veteran's service treatment records from the National Personnel Records Center (NPRC) in St. Louis, Missouri. However, in November 2011, the NPRC noted that those records had been destroyed in a 1973 fire at the facility. Therefore, the VA has a heightened duty to explain its findings and conclusions and to consider carefully the benefit-of-the- doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Later in November 2011, the RO requested that the Veteran submit any service treatment records she may have in her possession. The RO also informed her of various alternative types of evidence that she could submit to support her claim. Such evidence included, but was not limited to, statements from military medical personnel, statements from former fellow service members, additional reports post-service treatment, reports of pre-employment examinations or insurance examinations, letters written or photographs taken during service, or pharmacy prescription records. The RO also requested that the Veteran complete NA Form 13055, so that it could conduct a more thorough search for those records. In April 2013, the AMC again requested that the Veteran submit any additional post-service records reflecting her treatment for a disorder involving the left lower extremity. The AMC also advised her that she could submit statements from individuals who had known her since her service in the late 1950's. To date, however, the Veteran has not submitted any service treatment records in her possession, nor has she provided any alternative forms of evidence. In addition, she has not completed and returned NA Form 13055. There is no reason to believe that additional efforts to obtain such evidence would be any more productive. Further development in that regard would unnecessarily impose additional burdens upon the Board with no reasonable possibility of any benefit flowing to the Veteran. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). Accordingly, such development is not warranted. Finally, VA scheduled the Veteran for a hearing at the RO before a member of the Board. However, she failed to report for that hearing and has not requested that it be rescheduled. Therefore, the Board will proceed as if the Veteran no longer desires a hearing. In sum, the Veteran has been afforded a meaningful opportunity to participate in the development of her appeal. She has not identified any outstanding evidence which could support her claim; and there is no evidence of any VA error in notifying or assisting the Veteran that could result in prejudice to her or that could otherwise affect the essential fairness of the adjudication. Accordingly, the Board will proceed to the merits of the appeal. The Merits of the Appeal The Veteran contends that her current left lower extremity disorder, diagnosed primarily as left knee arthritis and synovitis, is the result of an injury sustained just prior to her separation form service. Therefore, she maintains that service connection is warranted. However, after carefully considering the claim in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against that claim. Accordingly, the appeal will be denied. Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Generally, the evidence must show (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. See Cuevas v. Principi, 3 Vet. App. 542 (1992). For certain disabilities, such as arthritis, service connection may be presumed when that disability is shown to a degree of 10 percent or more within one year of the veteran's discharge from active duty. 38 U.S.C.A. § 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Such a presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307. In addition, 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). As a medical professional, the Veteran is clearly competent to give testimony about what she experienced during and since the conclusion of her service. For example, she is competent to report the initial manifestations of left knee pain. She may also be competent to render an opinion as to the nature and etiology of her left knee disorder. However, there is nothing in the record that shows that she has expertise in orthopedic abnormalities. Therefore, her opinion, without more, is not dispositive, and must be weighed against the totality of the evidence. Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. See Rucker v. Brown, 10 Vet. App. 67 (1997). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). In deciding this appeal, the Board must weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999); Evans v. West, 12 Vet. App. 22 (1998). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings. The probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). In this regard, contemporaneous evidence has greater probative weight than a history reported by the Veteran. Curry v. Brown, 7 Vet. App. 59 (1994). However, medical evidence that is speculative, general or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30 (1993). A review of the evidence shows that from February to April 1962, the Veteran was treated at a military medical facility for synovitis and degenerative arthritis of the left knee. In April 1962, she underwent a left knee synovectomy. It was noted that she had fallen and injured the knee approximately one year prior to her hospital admission. K. L. M., M.D. reported that in June 1984, the Veteran had undergone additional left knee surgery due to a fall on Easter 1984. Dr. M. noted that the Veteran had a history of a medial meniscectomy approximately 20 years earlier. In light of the foregoing evidence, the Board requested a VA examination to determine the nature and etiology of any left lower extremity disorder found to be present. Following the VA examination in May 2013, the diagnoses were left knee arthritis and synovitis. The VA examiner opined that it was at least as likely as not that such disorders were incurred in or caused by an inservice injury, event, or illness. However, the VA examiner did not offer the rationale for her opinion. In August 2013, pursuant to a request by the AMC, the Director of the Veterans Benefits Association approved the need for clarification of the VA examiner's opinion. Therefore, in September 2013, the claims file was returned to the examiner. Following a further review of the record, the VA examiner opined that it was less likely as not that the Veteran's left knee arthritis and synovitis were incurred in or caused by an inservice injury, event, or illness. The examiner stated that his prior review of the Veteran's records had been incorrect. He had thought that her injury and surgery had occurred in-service. In reality, he noted that the injury and surgery had occurred one year after service. Therefore, he retracted his prior statement and opinion. In light of the foregoing evidence, the Board finds that the Veteran's original left knee injury, which resulted in arthritis and synovitis, occurred more than one year after her separation from service. The only evidence to the contrary is found in the personal statements from the Veteran. Although she claims that she had an initial injury in 1960 for which she has been treated since her separation from the service, the preponderance of the evidence is against that claim. None of the evidence submitted in support of her claim shows such an injury. It is reasonable to expect that as a medical professional, she would have recognized or should have recognized the importance of an accurate medical history. That she did not report a history of an inservice left lower extremity injury during her treatment in 1962 or the mid-1980's militates against her claim. The Board has also considered the fact that as a medical professional, she may be competent to render an opinion as to the nature and etiology of her left knee disorder. However, there is nothing in the record that shows that she has expertise in orthopedic abnormalities. Moreover, the VA physician who examined her in 2013 has greater training in that regard; and, therefore, the Board finds his opinion more probative than that of the Veteran. Such evidence further militates against her appeal. In sum the preponderance of the evidence is against a finding of a left knee injury or disease in service or of a nexus between the Veteran's current left knee arthritis and/or synovitis and service. Therefore, the Veteran does not meet the criteria for service connection. Accordingly, service connection for a disorder of the left lower extremity is not warranted. In arriving at this decision, the Board has considered the doctrine of reasonable doubt. However, that doctrine is only invoked where there is an approximate balance of evidence which neither proves nor disproves the claim. In this case, the preponderance of the evidence is against the Veteran's claims. Therefore, the doctrine of reasonable doubt is not applicable. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013). ORDER Entitlement to service connection for a disorder of the left lower extremity is denied. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs