Citation Nr: 1338573 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 07-33 666 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a chronic left knee disability, to include injury residuals, arthritis, partial meniscectomy residuals, and total knee replacement residuals. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran had active service from November 1958 to October 1979. The Veteran served in the Republic of Vietnam. He was awarded the Combat Infantryman Badge, two Air Medals, and the Purple Heart. This matter came before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida that, in pertinent part, denied entitlement to service connection for left knee partial meniscectomy residuals. In April 2011 and February 2013, the Board remanded the issue for additional development. The requested development having been completed, to the extent possible, the matter again is before the Board. The Board has not only reviewed the Veteran's physical claims file, but also the Virtual VA and Veteran's Benefits Management System (VBMS) paperless claims processing systems to ensure a total review of the evidence. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has a left knee disability that is etiologically related to a disease, injury, or event in service. CONCLUSION OF LAW A left knee disability was not incurred in or otherwise related to military service, and may not be presumed to be related to such service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. VCAA letters dated in April 2006 and April 2011 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(b)(1) (2011); Quartuccio, at 187. The letters informed him of the information or evidence that was needed to substantiate his claim and explained the allocation of responsibilities between himself and VA. See Pelegrini II, at 120-121. The letters also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA treatment records are in the file. Prior remands have requested additional attempts to locate potentially missing service treatment records; however, additional requests utilizing the search parameters outlined by the Board have not yielded any additional service treatment records and the National Personnel Records Center (NPRC) has indicated that all records have been provided to VA. In addition, as will be discussed in greater detail below, the prior Board remands directed that morning reports be obtained in the hopes of confirming the Veteran's claimed left knee injury as a result of a parachute jump. Although such a search has not been adequately completed, for the purpose of this decision the Board will presume that the injury occurred as claimed by the Veteran. As such, a further remand to obtain these records would serve no useful purpose, as the Board accepts that injury occurred in service. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). Private medical records identified by the Veteran have been obtained, to the extent possible. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. See 38 C.F.R. § 3.159(c)(4). In this case, the Veteran was provided VA examinations in May 2011 and June 2013. As will be discussed in greater detail below and detailed in its February 2013 remand of this issue, the Board found the May 2011 VA examination report inadequate for the purposes of adjudicating the Veteran's claim. In the June 2013 VA examination report, the examiner considered the Veteran's contentions, but concluded that his current left knee disability was unrelated to his military service, to include any injury sustained as a result of a parachute jump. The decision was based on review of the claims file, interview of the Veteran, physical examination, and review of diagnostic testing. The report provided a thorough rationale for the opinions provided. Based on the foregoing, the Board finds the June 2013 examination report to be thorough, complete, and sufficient upon which to base a decision with respect to the Veteran's claim for service connection. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Based on the association of VA treatment records, the attempts to associate and the association of service treatment and personnel records, the May 2011 and June 2013 VA examination reports, and subsequent readjudication of the claim, the Board finds that there has been substantial compliance with its April 2011 and February 2013 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In reaching that conclusion, the Board again acknowledges that an adequate search of morning reports from the Veteran's unit was not accomplished; however, as the Veteran's claimed in-service injury will be conceded, another remand to attempt to obtain any relevant morning reports is not necessary and would serve no useful purpose. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2013). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2013). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.307, 3.309 (2013). In the instant case, however, there is no presumed service connection because the evidence does not show that arthritis of the left knee manifested within one year of discharge. Indeed, arthritis of the left knee was not diagnosed until multiple decades after separation from service. As such, service connection for left knee arthritis is not warranted on a presumptive basis. Notwithstanding, the Board will consider whether service connection is otherwise warranted on a direct basis. In the absence of presumptive service connection, to establish a right to compensation for a present disability on a direct basis, a Veteran must show: "(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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran asserts that service connection is warranted for a chronic post-operative left knee disorder as he injured his knee in 1959 during active service. Specifically, the Veteran states that he injured his left knee as a result of parachute jumps undertaken during parachute training after completing advanced infantry training (AIT) in February 1959. The Veteran also has contended that he injured his left knee as a result of a parachute jump while serving in Germany in 1961. As noted in prior decisions, the available service treatment records do not document a left knee injury as a result of a parachute jump in 1959 or 1961. Moreover, as mentioned above, the Board's prior requests to obtain relevant morning reports from the Veteran's unit have not been successfully completed. In light of these failures, the Veteran's receipt of multiple Air Medals, and personnel records suggesting parachute training, the Board will presume for the purpose of this decision only that the left knee injury occurred as a result of a parachute jump in 1959 or 1961 as claimed. In the years following the Veteran's left knee injury, his personnel records indicate that in 1963 and 1964 he was able to play basketball for the battalion team, which included practicing for "long hours." In a November 1975 Report of Medical History, the Veteran explicitly denied a history of "trick" or locked knee; arthritis, rheumatism, or bursitis; bone, joint or other deformity; and lameness. Contemporaneous examination of the lower extremities was normal. November 1976, November 1977 Reports of Medical Examination included findings of normal lower extremities. At the Veteran's retirement examination, in July 1979, the lower extremities were considered normal. In a contemporaneous Report of Medical History, the Veteran explicitly denied a history of "trick" or locked knee; arthritis, rheumatism, or bursitis; bone, joint or other deformity; and lameness. After service, the record does not indicate that the Veteran sought treatment for left knee problems for many years. Indeed, in July 2000 when the Veteran initiated treatment with VA the record indicated that he was in "remarkable good health with the exception of Hypertension and impotence." Examination of the extremities at that time included no noted abnormalities. The Veteran first sought treatment for left knee problems in approximately September 2002, at which time he complained of left knee pain for three weeks that interfered with regular walking. The Veteran reported a left knee injury in service, with occasional knee discomfort thereafter. An October 2002 treatment record discussed a questionable injury to the left knee in 1959. The Veteran reported that he was in an airborne unit and struck the knee. He complained of recent onset of problems 6 to 8 months previously with symptoms that included some swelling, popping, and trouble walking. An October 2002 treatment record created later that same day indicated longstanding left knee pain with recent exacerbation about six months previously with resulting pain and aching in the left knee. The note stated that the Veteran was an "ex parachutter" who recently reinjured the knee while mowing the lawn. He was diagnosed with severe degenerative joint disease of the left knee. The Veteran brought his claim for entitlement to service connection for a left knee injury in February 2006. At that time, he stated that he injured the knee in 1959 and that it had "continued to bother me ever since." The knee had worsened and the Veteran had been treating with VA. The records show that the Veteran underwent an arthroscopy of the left knee in 2006. A January 2007 private treatment record included the Veteran's report that he had injured his left knee in 1959 during parachuting school. The Veteran underwent a total knee replacement in February 2007. A March 2007 VA treatment record stated that the Veteran was an ex-paratrooper with 51 jumps from 1959 to 1964 and that it was more likely than not that the left knee degenerative arthritis was secondary to the jumps and injuries sustained while on active duty. An October 2007 letter from a friend of the Veteran included a report that the Veteran had complained of knee pain that caused him to miss work after separating from service and that he had not complained of knee pain prior to entering service. In addition, the letter stated that the Veteran indicated that he had left airborne school due to a fractured ankle. November 2007 x-rays showed end stage degenerative changes of the right knee joint. The Veteran was afforded a VA examination in May 2011. The examiner noted review of the claims file. The Veteran reported onset of left knee problems in 1959 as a result of a parachute jump. He claimed to have reinjured the knee approximately three months later, at which time he was diagnosed with a tear in the left knee. Subsequently, the Veteran was able to complete his military service from 1959 to 1979 without any other problems with the knee. The Veteran claimed to have started having problems with the left knee in 2004, at which time he sought treatment and was diagnosed with arthritis. In August 2006, he underwent arthroscopy and left knee replacement in February 2007. Since the replacement, the knee had been doing well. After examination, the examiner diagnosed left knee degenerative joint disease with history of total knee replacement. The examiner concluded that it was less likely than not that the left knee disability was caused by or the result of military service. The rationale was that the Veteran's service treatment records included no mention of left knee problems or injury. The examiner noted the VA treatment record associating the Veteran's arthritis of the left knee with his parachute jumps in service, but this was based on the Veteran's history and not the medical evidence of record. The examiner indicated that if in-service records showing injury or problems could be located, then the case could be reviewed. In its February 2013 remand, the Board concluded that the May 2011 VA examination report was inadequate and the Veteran was afforded another VA examination in June 2013. The examiner noted review of the claims file and a diagnosis of degenerative osteoarthritis of the left knee from August 2002. The Veteran described left knee pain, for which he was first seen by VA in July or August of 2002. He first injured the knee while parachuting in 1961. The Veteran claimed to have been seen by the dispensary at the time and returned to full duty. The Veteran continued in the military until retiring in 1979. Following examination, the examiner concluded that the left knee disability was not caused by or the result of active military service. The examiner specifically noted consideration of the Veteran's lay statements regarding his in-service parachute jumps in-service knee injuries and complaints, and the Veteran's and his friend's reports of a continuity of symptoms from service. The rationale observed that the service treatment records were silent for complaints or treatment for left knee problems. The opinion noted the October 2002 VA treatment record, wherein the provider associated the left knee problems with an injury while mowing the lawn, but overall conclusion that the current left knee problems were attributable to the Veteran's in-service parachute jumps. The June 2013 examiner found this opinion unpersuasive, in light of the absence of supporting records and the Veteran's numerous explicit denials of knee problems in subsequent service treatment records. The examiner also stated that on multiple occasions during service, physical examination of the knees was normal. After service, there were no records of treatment for many years, including during his initial years of treatment with VA. In addition, the examiner stated that the knee was the joint most commonly affected by degenerative arthritis and that the main etiologic factor was the aging process. The examiner cited to a medical study in support of that statement. The examiner stated that there was a high (approximately 30 percent) incidence of arthritis by age 50 and that in this case there was a substantially silent interval between the "original precipitating event" and the Veteran seeking medical care for degenerative arthritis of the left knee. The Veteran's left knee degenerative arthritis was consistent with the normal aging process, as evidenced by the development of a similar condition requiring same treatment in the right knee within one year of the Veteran's left knee surgical treatment. As such, the examiner concluded that the Veteran's current left knee disability was "a stand-alone entity neither due to nor aggravated by his in-service parachute jumps, self-reported knee injuries or complaints, and/or combat experiences in the Republic of Vietnam; or other related to service." The Board observes that the examiner's opinion contemplates an in-service left knee injury during a parachute jump occurred as claimed by the Veteran. In that regard, the examiner's opinion specifically references the "original precipitating event" (i.e. the injury as a result of a parachute jump) and discusses the absence of complaints or problems for many years after the event occurred. He also specifically concluded that the current left knee disability was not due to or aggravated by the self-reported knee injuries or complaints. Having reviewed the complete record, the Board concludes that the preponderance of the evidence is against finding that the Veteran has a left knee disability that was incurred in or is otherwise related to military service. In reaching that determination, the Board finds the June 2013 VA examination report of significant probative value. The examiner's opinions were based on an interview of the Veteran, his reported medical history, review of the medical evidence of record (including x-rays), and physical examination. Further, a complete and thorough rationale was provided for the opinions rendered. Specifically, the examiner concluded that it was less likely than not that the Veteran's left knee problems were the result of his military service, to include the Veteran's reported parachute jump with resulting injury. The examiner discussed the absence of in-service complaints following the claimed incident and, indeed, the numerous in-service reports wherein the Veteran denied knee problems. The examiner focused on the nature of the Veteran's left knee degenerative arthritis and concluded that it was most likely due to his age. In support of this conclusion, the examiner cited to a study for the proposition that the main etiologic factor in the development of degenerative arthritis was the aging process and, in the Veteran's specific case, observed that his right (i.e. uninjured in service) knee also was diagnosed with degenerative arthritis and required the same surgical treatment within one year of that for the left knee. The examiner's conclusions are fully explained and consistent with the evidence of record. By contrast, the Board finds the March 2007 VA treatment record attributing left knee degenerative arthritis to the Veteran's in-service parachute jumps and resulting injuries to be of significantly less probative value. The treatment provider did not indicate review of the claims file and did not otherwise indicate awareness of the evaluations in service following an injury in service, including the results of the separation examination report. The June 2013 VA examination report, on the other hand, considered all the relevant evidence of record, including the VA treatment records attempting to link current left knee degenerative arthritis with the Veteran's in-service parachute jumps and resulting injuries. In light of the foregoing, only limited probative value can be given to the March 2007 VA treatment provider's opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (explaining that factors affecting the probative value of a medical opinion are whether the opinion is based on sufficient facts or data, is the product of reliable principles reliably applied to the facts, and the reasoning employed by the expert). The Board also has considered the reports of the Veteran that his left knee problems are the result of an injury sustained in 1959 or 1961 as a result of a parachute jump. In that regard, individuals can attest to factual matters of which he or she has first-hand knowledge, such as left knee pain, and the Veteran's assertions in that regard are entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, determining the etiology of left knee degenerative arthritis fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). It is noted that the Veteran has asserted that he experienced, at most, intermittent knee problems following his in-service injury until approximately six months prior to seeking treatment. However, the examiner considered such reports and determined that it was less likely as not that current knee disability is related to service and provided a rationale in support of the opinion. Accordingly, the examiner's opinion, as well as the separation examination report which revealed no complaints or abnormal findings, outweighs the Veteran's reports of continuing symptoms since the injury. In light of the complexity of attributing his left knee degenerative arthritis diagnosed in 2002 (and associated residuals) to a 1959 or 1961 parachute jump injury, the Board affords significantly more weight to the conclusions of the June 2013 VA examiner, which were based on the examiner's complete review of the claims file, the Veteran's contentions, x-rays, and physical examination. Cf. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In conclusion, the most probative evidence of record indicates that the Veteran's current left knee disability was not incurred as a result of injury in service and is not otherwise shown to be related to his military service. As discussed, the Board finds the June 2013 VA examination report of significantly greater probative value than the Veteran's lay statements and the VA treatment records associating current left knee disabilities with the Veteran's parachuting activities. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim for service connection must be denied. See 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2013); see generally Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). ORDER Entitlement to service connection for a chronic left knee disability, to include injury residuals, arthritis, partial meniscectomy residuals, and total knee replacement residuals, is denied. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs