Citation Nr: 1338460 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 08-08 660 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a right knee disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. Slovick, Associate Counsel INTRODUCTION The Veteran, who is the Appellant, served on active duty from July 1965 to July 1968. He had additional service in the United States Army Reserves. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in October 2007 of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2009 and January 2011, the claim was remanded by the Board for additional development. As the requested development has been completed, no further action to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The present right knee disability, degenerative joint disease of the right knee with a total knee replacement, was not affirmatively shown to have had onset in service; degenerative joint disease of the right knee was not manifest to a compensable degree within the one-year period following separation from service; and degenerative joint disease of the right knee with a total knee replacement is otherwise unrelated to an injury, disease, or event in service, including airborne training. CONCLUSION OF LAW The criteria for service connection for a right knee disability, degenerative joint disease with a total knee replacement, are not met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002) 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. The VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (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 v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The RO provided pre-adjudication VCAA notice by letters in April and August 2007. As for the content and the timing of the VCAA notice, the document complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); and of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice). The VCAA notice also complied with Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (pre-adjudication VCAA notice); and of Dingess v. Nicholson, 19-Vet. App. 473, 484-86 (2006) (notice of the elements of the claim). And not further notice is required. Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained service records, VA records, private medical records, and records of the Social Security Administration. The Veteran was afforded a VA examination for his right knee disability in February 2011. As the examination report is based on a review of the Veteran's history and described the disability in sufficient detail so that the Board's review is a fully informed one, the examination report is adequate to decide the claim. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts is required to comply with the duty to assist. REASONS AND BASES FOR FINDING AND CONCLUSION Principles of Service Connection A Veteran is entitled to VA disability compensation, referred to as service connection, for a disability resulting from personal injury suffered or disease contracted in line of duty in active military service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active military service. 38 U.S.C.A. § 1110 (wartime service). Generally, to establish entitlement to VA disability compensation, that is, service connection, a Veteran must show: (1) a present disability; (2) an 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). All three elements must be proved. In this case, several legal theories operate in conjunction with 38 U.S.C.A. § 1110 as implemented in 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). 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." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may also 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). For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for specifically listed chronic diseases, including arthritis, which includes degenerative joint disease, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. Evidentiary Standards VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). As the Veteran did not serve in combat, the provisions of 38 U.S.C.A. § 1154(b) do not apply. Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible. Competency is a question of fact, which is to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). Competency is distinguished from the credibility and weight of admissible evidence, which are also factual determinations. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). "Credible evidence" is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Evidence The service records show that the Veteran was an infantry man and he earned the Parachutist Badge. The service treatment records contain no complaint, finding, history, treatment, or diagnosis of a right knee disability. After service VA records shows that in February 2003 the Veteran complained of bilateral knee pain. In November 2004, the Veteran was evaluated for bilateral knee pain of three years' duration. There was no history of an injury or of surgery. X-rays in October 2004 showed arthritis, which was consistent with previous X-rays in May 2001. The assessment was bilateral degenerative joint disease. In September 2007, the Veteran had a total right knee replacement because of failed conservative treatment. In statements in May 2007, in June 2007, and in October 2007 (the notice of disagreement), the Veteran stated that he injured his right knee in jump school in 1965 and that he was held back for a week before he could complete airborne training. He stated that he had been treated by VA for the last three years. In February 2009, the Veteran testified that in 1965 in jump school he jumped off a 250 foot tower, and he hurt his knee on landing and that he went to the dispensary for treatment. The Veteran stated that he later sprained his knee at his next duty station. He stated that he had about 7 parachute jumps in service. The Veteran stated that he sought treatment in 1971 and continued to seek treatment when his knee hurt. In August 2010, VA made a formal determination that records of treatment of a right knee injury in 1965 or in 1966 could not be located. The Veteran was notified of the unavailability of the records in the supplemental statement of the case in September 2010. On VA examination in February 2011, after a review of the Veteran's file, the VA examiner, a physician, noted that there was no mention of knee problems on the Veteran's separation examination in 1968 or on the examination reports (for Reserve service) in April 1975 and in April 1978. The Veteran stated that in 1965 in jump school he jumped off a 250 foot tower, and he hurt his knee on landing and that he went to the dispensary, where he was told that it was a strain, and that he was put back a week, but he finished jump school without further injury. The Veteran stated that after service his knee pain began in the 1980s, that he sought treatment by VA in 2001, and that he had a total knee replacement in 2007. The VA examiner noted that X-rays in August 2009 showed a right total knee arthroplasty. The diagnostic impression was right knee total arthroplasty secondary to osteoarthritis. The VA examiner stated that, while the Board found that the Veteran's description of a knee injury in service was adequate documentation of an injury, there were no medical records of a knee problem after the injury or until 2000. The VA examiner expressed the opinion that it was less likely than not that the right knee total arthroplasty was secondary to an injury in 1965 during parachute training. The VA examiner explained that the Veteran had arthritis in the left knee as well and a work history of manual labor for 26 years, which was enough to cause bilateral knee osteoarthritis. Analysis In statements and in testimony, the Veteran stated that in 1965 in service in jump school he jumped off a 250 foot tower, and he hurt his right knee on landing. The Veteran as a lay person is competent to describe an injury and symptoms of an injury, such as pain, which are within the realm of his personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness). Although there is no contemporaneous record of a right knee injury in service, the Board finds that the Veteran's lay statements and testimony about a right knee injury in service are admissible as evidence of an in-service incurrence of an injury and are credibile, which establishes one of the three elements required for service connection, namely, in-service incurrence of an injury. Although a right knee injury is evidence of what happened in service, competent and credible evidence of the two other elements required for service connection, namely, a present disability and a causal relationship between the present disability and the injury in service, the nexus requirement, is still required to support the claim. Shedden, at 1167. While the Veteran is competent to describe a knee injury and knee pain, following a jump from a tower during airborne training in service, the present right knee disability, degenerative joint disease or arthritis with a total knee replacement, (hereafter to as degenerative joint disease), was not affirmatively shown to have been present during service, and service connection under 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303(a) (affirmatively showing inception in service) is not warranted. As a knee injury and pain are indicative of but not dispositive of degenerative joint disease (arthritis), which is a chronic disease listed in 38 C.F.R. § 3.309(a), the theories of service connection pertaining to chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) apply. See Walker v. Shinseki, 708 F.3d (Fed. Cir. 2013) (presumption of service connection for a chronic disease manifested during service applies only to enumerated chronic diseases under 38 C.F.R. § 3.309(a) and continuity of symptomatology avenue to service connection is available only for enumerated chronic diseases, 38 C.F.R. § 3.309(a)). For the showing of a chronic disease, such as degenerative joint disease, in service there is required a combination of manifestations sufficient to identify the disease and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). While a knee injury and pain are capable of lay observation, the presence of degenerative joint disease is not a question that can be competently answered by the Veteran as a lay person based on mere personal observation, as the diagnosis of degenerative joint disease falls outside the realm of common knowledge of a lay person, that is, not capable of lay observation, without specialized education, training, or experience. 38 C.F.R. § 3.3159; Jandreau, at 1377 Also degenerative joint disease is not the type of condition under case law that has been found to be capable of lay observation. See Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfeet are capable of lay observation); see McCartt v. West, 12 Vet. App. 164, 167 (1999) (a skin condition is capable of lay observation); see Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus is capable of lay observation); see Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); and see Jandreau, at 1377, n. 4 (a lay witness is capable of diagnosing a dislocated shoulder or a simple medical condition, for example a broken leg, but not, for example, a form of cancer). Applying the guidance of the current case law, degenerative joint disease is an internal disease process, analogous to a disease such as rheumatic fever, rather than flatfeet, a skin condition, tinnitus, varicose veins, a dislocated shoulder, or a broken leg. For this reason, degenerative joint disease is not the type of condition under case law that has been found to be capable of lay observation. As degenerative joint disease is not capable of lay observation under Jandreau and by case law, degenerative joint disease is not a simple medical condition. And no factual foundation has been established to show that the Veteran is otherwise qualified through specialized education, training, or experience to diagnose degenerative joint disease. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (the Board may find that lay evidence to diagnose a disability is not competent evidence). Where, as here, there is a question of the diagnosis of degenerative joint disease, which is not capable of lay observation under Jandreau or by case law, to the extent the Veteran's lay statements and testimony are offered as proof of the presence of degenerative joint disease in service, the Veteran's lay evidence is not competent evidence that degenerative joint disease as a chronic disease was present in service and the Veteran's lay evidence cannot be considered as evidence favorable to claim based on chronicity. Also an injury in 1965 without any later right knee abnormal finding, including on separation examination, lacks the combination of manifestations sufficient to identify degenerative joint disease and insufficient observation to establish that degenerative joint disease was present in service. As the Veteran's lay evidence is not competent evidence that degenerative joint disease was present in service and as the service treatment records lack the documentation to identify degenerative joint disease during service, chronicity of degenerative joint disease in service is not adequately supported by the evidence of record. Whereas here the fact of chronicity in service is not adequately supported, service connection can be established by continuity of symptomatology. Continuity of symptomatology requires: (1) that the condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology noted in service; and (3) evidence of a nexus between the present disability and the postservice symptomatology. Walker, at 1335-36, 40 (overruling in part Barr v. Nicholson, 21 Vet. App. 303, and Savage v. Gober, 10 Vet. App. 488, 497 (1997) to extent that 38 C.F.R. § 3.303(b) was applied to diseases not listed in 38 C.F.R. § 3.309(a), while addressing the elements of continuity of symptomatology). As a right knee injury was "noted" in service on the basis of the Veteran's statements and testimony, as a right knee injury and pain are indicative of but not dispositive of degenerative joint disease, and as the Veteran is competent to describe a right knee injury and pain, which is within the realm of personal experience, to the extent the Veteran asserts that he has had right knee pain since the injury in service the assertion is competent evidence of postservice continuity of symptomatology. As for evidence of a nexus between the present degenerative joint disease and the postservice symptomatology, the Veteran's assertion is an inference based on facts and it is an opinion rather than a statement of fact. The Veteran as a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). As previously explained, degenerative joint disease is not a simple medical condition under Jandreau or by case law and any inference based on what is not personally observable cannot be competent lay evidence. And no factual foundation has been established to show that the Veteran is otherwise qualified through specialized education, training, or experience to offer an opinion on the causal relationship or nexus between the present degenerative joint disease and the continuity of symptoms he avers. For these reasons, the Veteran lay opinion is not competent evidence of a causal relationship or nexus between degenerative joint disease and the postservice symptomatology. Since the Veteran's lay opinion is not competent evidence, the lay opinion is excluded, that is, not admissible as evidence and cannot be considered as competent lay evidence favorable to claim based on continuity of symptomatology. Although service connection is not established under either 38 C.F.R. § 3.303(a) or by chronicity or by continuity of symptomatology under 38 C.F.R. § 3.303(b) on the basis of lay evidence, service connection may still be established based on an initial diagnosis after service, when all of the evidence, including that pertinent to service, shows that the disability was incurred in service. 38 C.F.R. § 3.303(d). As degenerative joint disease is not capable of lay observation, that is, a simple medical condition, under Jandreau or by case law, to the extent the Veteran's lay evidence is offered as proof of the presence of degenerative joint disease since service and before 2001, the Veteran's lay evidence is not competent evidence, and the lay evidence is not admissible as evidence and cannot be considered as competent evidence favorable to the claim. As previously explained, degenerative joint disease is not a simple medical condition that the Veteran as a lay person is competent to identify, therefore to the extent the Veteran's lay evidence is offered as proof of causation, that is, the right knee injury in service caused the present degenerative joint disease, the Veteran's opinion as a lay person is not competent lay evidence. And no factual foundation has been established to show that the Veteran is otherwise qualified through specialized education, training, or experience to offer an opinion on the causal relationship or nexus between the right knee injury in service as described by the Veteran and the present degenerative joint disease. Except the Veteran as a lay person is competent to describe a contemporaneous medical diagnosis or symptoms that later support a diagnosis by a medical professional. Jandreau, at 1377. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. As for the Veteran reporting a contemporaneous medical diagnosis, after service, degenerative joint disease by X-ray was first documented in 2001, more than 30 years after separation from service in 1968, well beyond the one year presumptive period for degenerative joint disease as a chronic disease under 38 C.F.R. §§ 3.307 and 3.309, which does establish the presence of a disability, one of the two remaining elements required for service connection. As for the third element required for service connection, the nexus requirement, as for symptoms described by the Veteran that later support a diagnosis by a medical professional, the Veteran has not submitted any evidence from a medical professional and there is no evidence of record that degenerative joint disease is directly attributable to the right knee injury in service as described by the Veteran or otherwise related to an injury, disease, or event in service. The only medical evidence of record as to the nexus requirement consists of the opinion of the VA examiner. The VA examiner, a physician, expressed the opinion that it was less likely than not that the right knee total arthroplasty was secondary to an injury in 1965 during parachute training. The VA examiner explained that the Veteran had had arthritis in the left knee as well and a work history of manual labor for 26 years, which was enough to cause bilateral knee osteoarthritis. As the opinion of the VA examiner was based on a review of the Veteran's history and provided a rationale for the conclusion reached in the opinion, the opinion constitutes competent and persuasive medical evidence that the present right knee degenerative joint disease with a total knee replacement is not due to the right knee injury in service as described by the Veteran or otherwise related an injury, disease, or event in service. There is no other medical evidence to consider and weigh against the opinion of the VA examiner. As all three of the elements required for service connection are not proved, the Board concludes that the preponderance of the evidence is against the claim of service connection. As the preponderance of the evidence is against the claim, the benefit-of-the doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER Service connection for the present right knee disability, degenerative joint disease of the right knee with a total knee replacement, is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs