Citation Nr: 1338436 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 11-09 705 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Yuan, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from October 1976 to October 1996. These matters are before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Huntington, West Virginia Department of Veteran Affairs (VA) Regional Office (RO). Subsequently, jurisdiction was transferred to the Roanoke, Virginia VARO. In August 2011, a Travel Board hearing was held before the undersigned; a transcript of the hearing is associated with the Veteran's claims file. FINDINGS OF FACT 1. During service, the Veteran apparently sustained a left knee injury, no chronic pathology was noted at the time, and associated complaints resolved. 2. A chronic left knee disability was not manifested in service; left knee arthritis was not manifested in the first postservice year; and the Veteran's current left knee disability (to include arthritis) is not shown to be related to his service/injury therein. CONCLUSION OF LAW Service connection for a left knee disability is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that (1) is necessary to substantiate the claim; (2) VA will seek to provide; and (3) the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quarticcio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (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, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable decision from the agency of original jurisdiction. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his claim by an August 2009 letter (prior to the April 2010 rating decision). The letter explained the evidence necessary to substantiate the claim, the evidence VA was responsible for providing, and the evidence the Veteran was responsible for providing. The Veteran has had ample opportunity to respond/supplement the record, and has not alleged notice was less than adequate. At the August 2011 Travel Board hearing, the undersigned explained the issue to the Veteran, specifically noting that a favorable nexus opinion was required to substantiate his claim. [At his request the record was held in abeyance 60 days to afford the Veteran opportunity to submit such opinion. He did not submit such an opinion.] The Board finds that the duties mandated by 38 C.F.R. § 3.103(c)(2) are met. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). The Veteran's service treatment records (STRs) and pertinent postservice treatment records have been secured. The RO arranged for a VA examination in January 2010. While the Board acknowledges the Veteran's September 2011 request for a new examination, it finds the January 2010 examination adequate for rating purposes, as the examiner expressed familiarity with the history of the disability, conducted a thorough examination, and provided a clear rationale to support his opinion. The Board finds nothing to suggest that the examination and opinion are inadequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran has not identified any pertinent evidence that is outstanding. VA's duty to assist is met. Legal Criteria, Factual Background and Analysis The Board notes that it has reviewed all evidence of record. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Service connection may be granted for disabilities due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after discharge when the evidence establishes that disability was incurred in service. 38 C.F.R. § 3.303(d). Certain conditions, such as arthritis, will be considered to have been incurred in or aggravated by service if they manifest to a compensable degree within a year after service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). To substantiate a claim of service connection, the Veteran must show: (1) 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, 1166-1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. If a fair preponderance of the evidence is against the claim, it is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). STRs show that in February 1977 the Veteran was seen for a complaint of knee pain of two weeks duration. No diagnosis was provided; x-rays were noted to be normal. Subsequent STRs contain no further mention of knee complaints. Though joint pain was noted upon separation, it was specifically related to "ankle arthritis." In a September 2009 letter , the Veteran stated that his left knee was first injured during SEAL training in 1977. On January 2010 VA examination, the diagnosis was left knee medial meniscus tear with degenerative joint disease (DJD). The examiner opined it was less likely than not that such disability was related to the Veteran's active service considering the Veteran's service records contained a single, isolated complaint of knee pain, that he ultimately finished a physically demanding career, and that he did not mention any knee problems at separation. It is not in dispute that the Veteran has a current left knee disability; left knee medial meniscus tear and DJD are diagnosed. STRs show a knee injury and complaints in 1977. Consequently, what the Veteran must still show to substantiate his claim is that the current disability is related to the complaints and injury in service. The Veteran's left knee injury very early in service was acute and resolved with no evidence of chronic residual pathology. As STRs do not show a diagnosis of a chronic left knee disability, and there is otherwise no suggestion of one in the record, service connection for a left knee disability on the basis that such became manifest in service and persisted is not warranted. 38 C.F.R. § 3.303(b). In that regard the Board finds that the Veteran's allegation that he has had a chronic left knee disability with continuing [unreported] symptoms since an injury in 1977 to be inconsistent with contemporaneous data (i. e. no mention of knee complaints in STRs after 1977, normal lower extremities on service separation examination), self-serving, and not credible. The Board finds it highly unlikely that someone with a chronic symptomatic knee disability following an injury (as alleged) would have been capable of completing some 19 years of post-injury service participating in such duties as the rigors of Navy SEAL training. Notably, there is also a significant postservice interval prior to any notation of left knee complaints/disability. Moreover, the Veteran's postservice medical records show left knee arthritis was first documented/diagnosed on January 2010 VA examination. Consequently, service connection for left knee arthritis on a presumptive basis (as a chronic disease under 38 U.S.C.A. § 1112) is also not warranted. 38 C.F.R. § 3.307(a)(3). What remains for consideration (as the Veteran was advised at the hearing) is whether the Veteran's current left knee disability may otherwise be related to his service. In the absence of evidence of injury/onset of chronic disability in service and continuity of symptoms since, this becomes a medical question. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). None of the Veteran's postservice medical records relate his present disability to his service. The Board acknowledges the Veteran's several statements relating his current disability to his injury in 1977. However, he is a layperson, and has not submitted any medical evidence or literature supporting his allegation of a nexus between his current left knee disability and his service/the remote injury therein. Therefore, his statements are not probative evidence. The only competent (medical) evidence that specifically addresses the matter of a nexus between the Veteran's current left knee disability and his service/injury therein is the opinion of the January 2010 VA examiner, who cited to the absence of chronic pathology in service and opined that the current left knee disability is unrelated to the injury therein. Because the VA examiner's opinion is supported by citation to supporting clinical data, reflects familiarity with the Veteran's complaints and history, and includes a clear explanation of rationale, it is probative evidence. As there is no competent evidence to the contrary, it is persuasive. In light of the foregoing, the Board finds the preponderance of the evidence is against a finding that the Veteran's current left knee disability is related to his service/injury therein. Therefore, the benefit of the doubt doctrine does not apply; the appeal must be denied. ORDER The appeal seeking service connection for a left knee disability is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs