Citation Nr: 1337122 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 10-45 836 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty in the Navy from June 1967 to December 1973. The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs' (VA) Regional Office (RO) in Waco, Texas. In September 2011, the Board remanded the appeal for additional development. At that time, the appeal included claims for service connection for lower extremity pain and numbness and a bilateral hearing loss disability, in addition to the above-captioned claims. In December 2012, the Board adjudicated the claim involving lower extremity pain and numbness. The Board remanded the remaining claims for further development. In May 2013, the RO granted service connection for bilateral hearing loss disability. As such, this claim is no longer in appellate status and will not be addressed herein. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). Accordingly, the only issues remaining on appeal are those captioned on the title page. The Board has considered documentation included in the Virtual VA system in reaching the determination below. No new records pertinent to this appeal were found therein. FINDINGS OF FACT 1. A right knee disability did not manifest in service and is unrelated to service, and right knee arthritis was not manifest within one year of separation. 2. A left knee disability did not manifest in service and is unrelated to service, and left knee arthritis was not manifest within one year of separation. CONCLUSIONS OF LAW 1. A right knee disability was not incurred in or aggravated by service, and arthritis of the right knee may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). 2. A left knee disability was not incurred in or aggravated by service, and arthritis of the left knee may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance Under applicable law, 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, 5126 (West 2002 & Supp. 2012); 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 or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds that the content requirements of a duty to assist notice have been fully satisfied. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). A letter from the RO dated in January 2010 provided the Veteran with an explanation of the type of evidence necessary to substantiate his claims, as well as an explanation of what evidence was to be provided by him and what evidence the VA would attempt to obtain on his behalf. That letter additionally provided him with information concerning the evaluation and effective date that could be assigned should service connection be granted, pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has no outstanding duty to inform the Veteran that any additional information or evidence is needed. VA also has a duty to assist the Veteran in the development of the claims. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained. The Veteran's service treatment records and post service treatment records have been obtained. He has been afforded a VA examination for the claims on appeal. The Board is further satisfied that the RO has substantially complied with its December 2012 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). As directed by the Board, the AOJ afforded the Veteran a VA examination for the claims on appeal. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claims. Therefore, no further assistance to the Veteran with the development of evidence is required. Analysis Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be warranted 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). Service connection for certain diseases, such as arthritis, may be also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a disorder when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.") The Veteran in this case has been diagnosed with degenerative joint disease of the right knee, and meniscal tear and repair with residual degenerative joint disease of the left knee, documented, for example, on VA examination in February 2013. Thus, the question is whether his current disabilities are related to active service or events therein. See 38 C.F.R. § 3.303. As for the in-service incurrence of the condition, initially, the Board notes that the Veteran in this case has been awarded the Combat Action Ribbon. However, the record does not indicate, and the Veteran has not alleged, that he has a residual knee injury or disease as a result of combat. Rather, as discussed further below, the Veteran contends this current bilateral knee disability resulted from working in construction, including road building, during service. As a result, the combat provision is not for application in this case. See 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2013). The Veteran's service treatment records are devoid of any complaints, diagnoses, or treatment for any problem with either of the Veteran's knees. Examinations of the lower extremities, including the knees, were normal on the December 1962 examination following fourteen days of active duty training in the Navy Reserve, the February 1964 separation examination, the August 1964 annual examination, the March 1965 active duty in the Naval Reserve (TAR) examination, the May 1966 transfer to the regular Navy examination, the June 1967 reenlistment examination, the May 1973 extension examination, and the November 1973 separation examination. The Veteran denied a history of arthritis, joint problems, or a trick or locked knee on Reports of Medical History dated from September 1962, December 1962, August 1964, and March 1965. Nonetheless, given the Veteran's complaints of constant knee pain since service and documentation of a current bilateral knee disability, in December 2012 the Board sought a VA medical opinion addressing the etiology of the Veteran's current knee disabilities. In February 2013, a VA examination was conducted. The examiner reviewed the claims file and examined the Veteran. The Veteran reported no history of specific injury or treatment for his knees while in active service. He reported that he had an acute onset of left knee pain around 1984, after moving from a sitting position to a standing position from the floor. He underwent an arthroscopy in Paris at the time of the injury, and his meniscus was repaired. The pain resolved following surgery. He reported that around 1995, he began having gradually increasing pain in the bilateral knees which had become progressively worse. He underwent no additional surgery, and was on no prescription medication. He reported daily pain and stiffness, with increased pain with stairs, squatting, and getting up from sitting. The Veteran was examined and x-rays were obtained. He was diagnosed with degenerative joint disease of the right knee, and meniscal tear and repair with residual degenerative joint disease of the left knee. The examiner concluded that it is less likely than not that the current right knee condition was caused by, aggravated by, or the result of active military service. The examiner attributed the current right knee disability to a nonservice-related cause, namely, obesity. In this regard, the examiner explained that obesity is a condition that tends to accelerate the natural progressive joint degeneration that occurs with the aging process. The examiner noted no evidence of right knee problems in service or at discharge. The Veteran had reported no specific injury to the right knee, just a gradual onset of pain 20 years after discharge. The examiner additionally concluded that it is less likely than not that the current left knee condition was caused by, aggravated by, or the result of active military service. The examiner attributed the current disability to a non-service related cause, namely, chronic weight bearing on the knee which was worsened by the 1984 left knee injury. The examiner further found that the Veteran's obesity aggravated the left knee disability. The examiner noted no evidence of a left knee condition while in active military service or on separation from service. On review of this report, the Board finds the examiner's opinions are fully adequate for the purposes of adjudication and entitled to substantial probative weight. See Stefl, 21 Vet. App. at 123. The examiner founded his opinions on an examination of the claims file and of the Veteran, with reference to past and current diagnostic reports. He explained the reasons for his conclusions, and attributed the current bilateral knee disabilities to non-service related causes. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The only other evidence of record supporting the Veteran's claim are his lay assertions. Lay witnesses are competent to testify as to their observations, but this testimony must be weighed against the other evidence of record. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). The Veteran is competent to describe his symptoms in and since service. However, all findings were normal on multiple examinations during service and at separation, and the Veteran consistently denied a history of problems with his knees. He specifically denied joint problems, arthritis, and a trick or locked knee. Moreover, the conflict between the Veteran's current statements and his prior denials of knee problems, as well as his assertions to the February 2013 VA examiner that his condition did not arise until after service, establishes that the Veteran is an inconsistent historian. The Board finds the contemporaneous statements including those made to health care providers to be more credible than those made during the course of an appeal for compensation. See Pond v. West, 12 Vet. App. 341, 345 (1999); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (interest may affect the credibility of testimony); Fed. R. Evid. 803(4) (recognizing that statements made for the purpose of medical treatment generally are reliable); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) ('[R]ecourse to the [Federal] Rules [of Evidence] is appropriate where they will assist in the articulation of the Board's reasons.')). The Board finds that the lay statements of in-service bilateral knee problems are not credible, and that the weight of the evidence indicates a lack of in-service bilateral knee pathology during service or within one year of separation. As to whether the Veteran is competent to opine that his bilateral knee disabilities are related to service, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). Here, the February 2013 VA examiner, after examining the Veteran and reviewing the claims file, opined that it was not likely ("it is less likely than not") that the Veteran's bilateral knee disabilities were related to service. He found other etiologies for the current conditions. As he explained the reasons for his conclusions based on an accurate characterization of the evidence, including the Veteran's statements, his opinions are entitled to substantial probative weight and the examination was therefore adequate. See Nieves-Rodriguez, 22 Vet. App. at 304; Stefl, 21 Vet. App. at 124. In weighing the May 2013 VA examiner's opinion against that of the Veteran, the Board finds that the probative value of the specific and reasoned statement of the trained medical professional outweighs that of the general lay assertions, even assuming the Veteran's competence to opine on the medical question of the etiology of his bilateral knee disabilities. For these reasons, the Board finds the preponderance of the evidence is against the claims for service connection. The Board further notes that, chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. However, there is no credible proof of arthritis of the knees until more than one year after service. Accordingly, such presumptive service connection is not warranted here. To the extent the Veteran argues a continuity of symptomatology between the present condition and in-service injury or disease, the United States Court of Appeals for the Federal Circuit recently clarified that the continuity of symptomatology language in § 3.303(b) "restricts itself to chronic diseases" found in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)). (holding, "nothing in § 3.303(b) suggests that the regulation would have any effect beyond affording an alternative route for proving service connection for chronic diseases."). Here, there is evidence of bilateral knee arthritis. However, arthritis of the knees was not noted during service. Furthermore, characteristic manifestations of the disease process were not identified during service. Accordingly, § 3.303(b) is not applicable. The Board has also considered the fact that the Veteran in this case served in the Republic of Vietnam during the Vietnam Era. However, he has not contended that herbicide exposure caused his bilateral knee disorders, and the claims file is devoid of any evidence to support this, including the detailed opinion of the February 2013 VA examiner who extensively reviewed the claims file and opined that the disorders are not related to an event of active military service. Additionally, the disorders on appeal are not among those presumed to be associated with herbicide exposure. See 38 C.F.R. § 3.309(e). As such, consideration of service connection on the basis of herbicide exposure is not applicable. In short, there is competent evidence that the Veteran has bilateral knee disabilities; however, the more probative and credible evidence establishes that there is no relationship to service. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claims, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a right knee disability is denied. Service connection for a left knee disability is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs