Citation Nr: 1338490 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 12-27 119A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a left knee disability. 2. Entitlement to service connection for a right knee disability. ATTORNEY FOR THE BOARD L. Willis, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from July 1982 to July 1985. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Board has not only reviewed the Veteran's physical claims file, but also the electronic record maintained in the Virtual VA and VBMS systems to ensure total review of the evidence. FINDINGS OF FACT A left knee disability is not etiologically related to service. A right knee disability is not etiologically related to service. CONCLUSIONS OF LAW A left knee disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2013). A right knee disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duty to Notify and Assist 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 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). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice 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. Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Here, the Veteran was sent a notice letter in September 2010 that fulfilled the requirements of both 38 C.F.R. § 3.159(c) and Dingess/ Hartman. The letter informed the Veteran of what evidence is required to substantiate the claims, and apprised the Veteran as to his and VA's respective duties for obtaining evidence. VA has also informed the Veteran how it determines the disability rating and the effective date for the award of benefits if service connection is to be awarded. The Board further concludes that the duty to assist has been met. The Veteran's service treatment records, VA treatment records (through 2012), and Social Security Administration (SSA) records have been obtained. The Veteran has reported ongoing treatment but has not specified dates of treatment later than those already included in the record. The Veteran contends that the May 2011 VA examination (VAX) was inadequate and therefore requests a new examination. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Specifically in his February 2012 Notice of Disagreement, the Veteran states that there was a misunderstanding with the nurse at the exam and requests a "chronic exam for [his] knee." The May 2011 VAX report shows that examiner reviewed the case file and noted several in-service incidents, interviewed the Veteran and noted his responses, and conducted a physical and x-ray examination. The examiner's opinion is based upon an informed review of the record, and therefore the Board finds that the opinion is adequate for adjudication purposes. As such, the Board finds that there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. II. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of 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, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Historically, service treatment records reflect that the Veteran was treated for an injury to his left knee in April 1984. The Veteran reported that he had injured his left knee during basic training. The examiner noted no effusion or instability. In December 1984, the Veteran was treated for left knee pain with heat and an ace wrap and light duty for two days. In February 1985, the Veteran was treated for trauma to his left knee while playing basketball with Motrin. In regards to his right knee, service treatment records reflect that the Veteran was treated for right knee pain in September 1982 with Ben-Gay. The examiner noted that the pain may have been due to stress. The Veteran reported that he had hit his knee on the ground. Post-service records do not show left or right knee symptomatology for many years after discharge. Specifically, there is no history of complaints or treatment until the Veteran's claim in August 2010 - over 20 years after discharge. At the May 2011 VAX, the examiner conducted a physical and x-ray examination and opined that the Veteran's bilateral knee conditions were "certainly" not related to his treatment in the military service. He further noted that the Veteran did not complain of any issues with either one of his knees that day and attributed the Veteran's difficulties to his low back and groin. The Veteran's x-ray results revealed no fractures, dislocations or soft tissue abnormalities and normal joint spaces. These findings do not suggest a disability of the left or right knee, aside from pain. In this regard, the Board observes that "pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted." Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). The Board has considered the Veteran's statements regarding his condition. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). A Veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465 (1994). The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). In this case, after a review of all the evidence, the Board finds that the weight of the evidence demonstrates that the Veteran did not experience continuous symptoms of a left and right knee disability after separation. Further, the Board concludes that his assertion of continued symptomatology since active service, while competent, is not credible. Here, the Veteran contends that his left and right knee conditions occurred in service and have worsened since discharge. See Veteran's October 2012 VA Form 9. However, this statement is inconsistent with other evidence of record. Specifically, in his April 1985 separation Report of Medical History, the Veteran denied any current knee disorders. The Board is aware of the Veteran's documented history of injuries to his knees. However, the Board finds the Veteran's normal separation examination and lack of report of any knee problems at separation more probative. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board decision giving higher probative value to a contemporaneous letter the veteran wrote during treatment than to his subsequent assertion years later). Moreover, although not dispositive, the Veteran's post service medical evidence does not reflect complaints or treatment of either knee for over 20 years following active service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim). Further, the Veteran has been treated at a VA facility since 2002, but did not mention any problems with his knees until his August 2010 claim. Indeed, the Veteran complained of several infirmities including his hips, thighs, groin area and pelvis in April and May 2002, but did not claim any knee problems. The Board has weighed the Veteran's statements as to continuity of symptomatology and finds his current recollections and statements made in connection with a claim for VA compensation benefits to be of lesser probative value than the previous more contemporaneous findings at service separation and the absence of complaints or treatment for years after service. For these reasons, the Board finds that the weight of the lay and medical evidence is against a finding of continuity of symptoms since service separation. In sum, while the Veteran had left and right knee complaints in service, his separation examination was negative for any chronic left or right knee pathology. Further, he had no documented symptoms of any left or right knee problems until over two decades after service. Moreover, no VA examiner has linked any knee symptoms to service. Finally, his assertions regarding continuity of symptomatology have found to be not credible. Overall, the preponderance of the evidence is against the Veteran's claim for service connection for a left and right knee disability, and his claims must be denied. As the preponderance of the evidence is against the Veteran's claims, the benefit-of-the-doubt doctrine of 38 U.S.C.A. § 5107(b) is not applicable in this case. ORDER Service connection for a left knee disability is denied. Service connection for a right knee disability is denied. ____________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs