Citation Nr: 1337906 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 05-07 395 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana THE ISSUE Entitlement to service connection for a right knee disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran served on active duty from August 1986 to March 1994. In March 2008, the Board granted the Veteran's claim of entitlement to service connection for a left knee disorder and remanded the right knee disorder claim. Following the requested development, the AMC confirmed and continued the denial of entitlement to service connection for a right knee disorder. Thereafter, the case was returned to the Board for further appellate action. FINDINGS OF FACT 1. A chronic, identifiable right knee disorder, diagnosed as degenerative joint disease, was first manifested many years after service, and the preponderance of the competent evidence of record shows that it is unrelated thereto. 2. The Veteran's right knee disorder is not proximately due to, nor is it aggravated by his service-connected lumbosacral strain. CONCLUSIONS OF LAW 1. The Veteran's right knee disorder, diagnosed as degenerative joint disease, is not the result of disease or injury incurred in or aggravated by service, nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A (West 2002 and Supp. 2013) 1131 ; 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2013). 2. The Veteran's right knee disorder does not meet the criteria for secondary service connection. 38 U.S.C.A. §§ 5103, 5103A (West 2002 and Supp. 2013); 38 C.F.R. §§ 3.159, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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 him in the development of his claim of entitlement to service connection for a right knee 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. Following the receipt of the Veteran's November 2002 request to reopen his claim, VA notified the Veteran of the information and evidence necessary to substantiate and complete the claim, including the evidence to be provided by him. The VA set forth the criteria for direct and secondary service connection, as well as that for rating service-connected disabilities and for assigning effective dates, should service connection be granted. Following the notice to the Veteran, VA fulfilled its duty to assist him in obtaining identified and available evidence necessary to substantiate his claim. VA obtained or ensured the presence of the Veteran's service treatment and personnel records; records reflecting his VA treatment from September 1994 through November 2009; records and reports from J. R. G., Jr., M.D., dated from November 2007 through January 2008; and the transcript of his October 2007 video conference with a Veterans Law Judge from the Board. The video conference transcript shows the presiding Veterans Law Judge conducted the proceeding in accordance with the mandates of 38 C.F.R. § 3.103(c)(2). She explained fully the issue and suggested the submission of evidence that the claimant may have overlooked and that would be advantageous to his position. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). The hearing transcript shows that the presiding Veterans Law Judge identified the material issue, permitted the Veteran's representative to question the Veteran; asked clarifying questions; identified the type of evidence that could help substantiate the Veteran's claim; left the record open for 60 days, so that the Veteran could submit additional evidence to support his claim; and asked the Veteran if he had anything to add that had not been covered. The Veteran stated that he was satisfied with the hearing. Therefore, there was no prejudice to the Veteran's claim as a result of the conduct of that hearing. See Bryant, 23 Vet. App. at 498 (citing to 38 U.S.C. § 7261(b)(2); Shinseki v. Sanders, 129 S. Ct. 1696, 1704 (2009)). In December 2002, July 2003, August and December 2004, October 2008, August and October 2010, January and October 2011, and August 2012, VA examined the Veteran to determine the nature and etiology of and right knee disorder found to be present. The VA examination reports show that the examiners reviewed the Veteran's medical history, interviewed and examined the Veteran, documented his medical conditions, and rendered diagnoses and opinions consistent with the remainder of the evidence of record. Therefore, the Board concludes that the VA examinations are adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2013); 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 sum, the Veteran has been afforded a meaningful opportunity to participate in the development of his appeal. He has not identified any outstanding evidence which could support his claim; and there is no evidence of any VA error in notifying or assisting the Veteran that could result in prejudice to him or that could otherwise affect the essential fairness of the adjudication. Indeed, in September 2013, the Veteran's representative stated that the Veteran did not have any additional evidence to present. Accordingly, the Board will proceed to the merits of the appeal. The Merits of the Appeal Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131. 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 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, as distinguished from merely isolated findings or a diagnosis including the word chronic. When the disease identity is established, there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. For certain disabilities, such as arthritis, service connection may be presumed when such 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. Service connection may also be granted when the evidence shows that a particular disability is proximately due to or the result of a disability for which service connection has already been established. 38 C.F.R. § 3.310(a). Any increase in the severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will also be service connected. 38 C.F.R. § 3.310(b). In addition, the applicable law and regulations provide that 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). During his video conference, the Veteran testified that his right knee problems were first manifested in service. He stated that the knee would lock up after long training runs. He reported progressive popping, pain, and swell after service. The Veteran is competent to testified about what he experienced during and since the conclusion of his service. For example, he is competent to report that his right knee began to hurt in service and that it has been hurting since that time. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). However, the question of whether a current right knee disorder may be related to his problems in service involves a medical issue. As such, it may not be competently addressed by lay evidence. See Davidson, 581 F.3d at 1316. His lay assertion has been investigated by competent medical examination and found not supportable. Jandreau, 492 F.3d at 1376-77. The preponderance of the probative medical evidence shows that the Veteran's right knee disorder is unrelated to service or to a disorder for which service-connection has already been established. Service connection for a right knee disorder is not therefore warranted on a direct or secondary basis. The Veteran's service treatment records show that at the time of his February 1986 service entrance examination, his lower extremities were normal. Thus, his right knee was presumed to be in sound condition at the time he entered service. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2013). In November 1993, the Veteran was treated for bilateral retropatellar pain syndrome and crepitus. Although he reported a history of a trick or locked knee during his March 1994 service separation examination, his lower extremities were found to be normal. There was no evidence of a chronic, identifiable right knee disorder of any kind; and the examiner said that the majority of the Veteran's complaints were in the past. At that time, he was 73 inches tall and weighed 248 pounds. During a December 2002 VA examination, the Veteran weighed 277 pounds. The examiner stated that he was at least 100 pounds overweight. Degenerative arthritis of the right knee was first manifested during an August 2004 VA examination. During a December 2004 VA examination, the examiner confirmed that the Veteran was at least 100 pounds overweight. The examiner opined that the Veteran's right knee arthritis was compatible with his age and obesity and unlikely related to service. His opinion was buttressed by the normal medical findings at the time of the Veteran's separation from service, and no medical records of a diagnosis or treatment for many years after service. That opinion was further supported by a private treating physician, J. R. G., Jr., M.D., who stated that the Veteran's right knee arthritis was not service-connected. Taken together, they provided probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability.); Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact). Following an October 2008 VA examination, the diagnosis was right knee degenerative joint disease. The examiner opined that it was unlikely related to the Veteran's service-connected lumbosacral strain. The examiner stated that the knees could affect the spine but that the reverse was not true. Following the August 2012 VA examination, the examiner stated that the Veteran's right knee arthritis had progressed and was moderate to advanced in nature. In June 2013, the VA examiner who examined the Veteran in December 2004 and October 2008 reviewed the examination, as well as the claims file and opined that it was less likely than not that the Veteran's right knee disability had been incurred in or caused by an inservice injury, event, or illness. He noted that the Veteran did not require knee X-rays for 10 years after service, suggesting that his complaints, if any, were very mild. He further noted that the changes seen on the 2004 X-rays were too mild to have been caused by a military event 10 years earlier. In sum, multiple VA examiners and a private examiner agree that it is less likely than not that the Veteran's right knee arthritis is the direct result of service. There is no competent evidence to the contrary. Absent evidence of a chronic, identifiable right knee disorder in service or competent objective evidence of a nexus between the Veteran's acute right knee retropatellar pain syndrome in service and his current right knee arthritis, the Veteran does not meet the criteria for service connection on a direct basis. As to the Veteran's claims of secondary service connection, the June 2013 VA reviewer found that his right knee arthritis was less likely than not related to his service-connected lumbosacral strain. He stated that the spine could affect the knee only if there was paralysis that would disrupt the function of the knee. He found no such paralysis. In addition, he noted that the degenerative changes in the right knee were too mild to have been the result of a lumbar spine condition affecting the knee for 10 years. There is no competent objective evidence to the contrary; and therefore, the Board finds that the Veteran does not meet the criteria of service connection for a right knee disorder on a secondary basis. In August 2013, the Veteran failed to report for an additional VA examination to determine, in part, the nature and etiology of any right knee disorder found to be present. However, he failed to report for that examination without good cause. Accordingly, the evidence expected from that examination, which might have been material to the Veteran's claim, could not be considered. 38 C.F.R. § 3.655 (2013). In arriving at the foregoing decisions, 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 right knee disorder is denied. ____________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs