Citation Nr: 1340253 Decision Date: 12/05/13 Archive Date: 12/20/13 DOCKET NO. 07-32 790 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran served on active duty from February 1985 to February 1988 and February 1991 to May 1991. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, which, in part, denied the Veteran's claim of entitlement to service connection for a left knee disability. Pursuant to the Veteran's request, he was scheduled for a Travel Board hearing before a Veterans Law Judge in March 2009. However, the Veteran failed to appear for that hearing. A postponement was not requested or granted. The Veteran has not asserted any good cause for missing the hearing or requested that it be rescheduled. Under these circumstances, the regulations consider the hearing request to have been withdrawn. 38 C.F.R. § 20.702 (2013). In October 2010, October 2012, and June 2013, the Board remanded this matter for further development and the case has been returned to the Board for appellate consideration. This appeal was processed using the VBMS paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The Veteran's current left knee disability is a separate and distinctly different disability from the left knee disorder that pre-existed his active duty service. 2. A left knee disability was not demonstrated to a compensable degree within one year of discharge from active duty, and the preponderance of the evidence is against finding that the Veteran's current left knee disability is etiologically related to a disease, injury, or event in service. CONCLUSION OF LAW A left knee disability was not incurred in or aggravated by service, and may not be presumed to have been so incurred. 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 FINDINGS 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, the extensive 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). I. 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. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it 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) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the Court held that VA 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. A VCAA letter dated in September 2006 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) (2013); Quartuccio, at 187. The Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claim. This letter informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. Additionally, the letter described how appropriate disability ratings and effective dates were assigned. This letter was provided to the Veteran prior to the initial adjudication of the claim. The duty to notify has been satisfied. 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. 38 C.F.R. § 3.159(c)(4)(i) (2013). In this case, the Veteran was most recently provided a VA examination in July 2013. The examiner considered the Veteran's claims, as well as the service treatment records, post-service treatment records, and results of current examination of the Veteran. He specifically commented on the Veteran's left knee surgery that occurred before his active duty, the Veteran's reported in-service injury, and the positive nexus opinion provided by a private examiner. The VA examiner then offered a negative nexus opinion. As the given opinion was based on review of the claims file, including the Veteran's statements and supporting evidence, and provided rationale for the opinion provided, the Board concludes that the opinion provided is adequate. Based on the foregoing, the Board finds the July 2013 VA 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 Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007) (finding that an adequate opinion is one that is based upon consideration of the Veteran's prior medical history and examinations, describes the disability in sufficient detail, and includes a conclusion supported by an analysis that the Board can consider and weigh against contrary opinions). As such, the Board finds that the medical evidence of record is sufficient to adjudicate the Veteran's claims. Based on the aforementioned VA examination, and recently obtained treatment records, the Board finds that there has been substantial compliance with its prior 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). 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). II. Claims for Service Connection A. Law and Regulations The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be established for a disability resulting from (1) a disease or injury incurred in or aggravated by active duty or ACDUTRA, or (2) an injury incurred in inactive duty training. See 38 U.S.C.A. §§ 101, 1110, 1131 (West 2002); 38 C.F.R. §§ 3.1, 3.6 (2013); see also Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). An alternative method of establishing the second and third elements of service connection for those disabilities identified as a "chronic condition" under 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. 38 C.F.R. § 3.303(b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has recently held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain diseases, to include arthritis, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). The presumption provision applies only to periods of active duty, not INACDUTRA. See Biggins, supra; see also Paulson v. Brown, 7 Vet. App. 466, 469-70 (1995) [if claim relates to period of ACDUTRA, a disease or injury resulting in disability must have manifested itself during that period]. In this case, as reviewed below, the record does not reflect that the Veteran had arthritis to a compensable degree within one year of discharge from active duty; hence, this presumption does not apply. B. Factual Background As previously noted by the Board in the October 2010 and October 2012 remands, the Veteran essentially contends that his left knee disability pre-existed service and was aggravated in 1986 in California. See Notice of Disagreement, received in August 2007. Records show that from June to July 1982, prior to service entry, that the Veteran was hospitalized after he injured his left knee doing karate, and required arthroscopy, arthrotomy, and meniscal repair. The discharge diagnosis was internal derangement of the left knee, as a result of a partial medial collateral ligament tear and peripheral anterior horn tear of the left medial meniscus. Service treatment records show a normal lower extremity evaluation on the examination at service entry in February 1986. In an October 1987 Report of Medical History, the Veteran indicated having/having had trick or locked knee, and a clinician indicated that the Veteran was status-post surgery for subluxing left patella. Post-service treatment records show that he reported injuring his left knee in 1982 and reinjuring it in 1986 (during service). He specifically asserts that he injured his knee at the National Training Center at Fort Irwin requiring him to be in a MASH unit for five days. He reported that reinjured his knee again in 1998. The Veteran also stated that he tore his anterior cruciate ligament while in service. The Veteran was afforded a VA examination in February 2012. In noting a diagnosis of left knee status post tibial tubercle transfer with residual pain, decreased range of motion, and laxity, the examiner opined that it was not caused by or the result of military service and that military service did not exacerbate a pre-existing condition. To support his conclusion, the examiner cited to the Veteran's pre-service injury to the left knee (partial tear of the medial collateral ligament and tear of anterior horn of the left medial meniscus) necessitating meniscectomy. The examiner indicated that a partial tear of the medial collateral ligament would be expected to heal on its own over time. It was further noted that the Veteran was asymptomatic when he joined the service, and per his report he was able to complete airborne and air assault school. Additionally, the examiner observed that there was no evidence that the Veteran injured his knee at the National Training Center at Fort Irwin requiring him to be in MASH for five days as he reported. The examiner also noted that there was no indication of any knee problems at service discharge in May 1990, and no evidence of treatment of his left knee within five years of service discharge. The examiner further pointed to an intervening incident in December 1998 when the Veteran twisted his left knee, and determined that his current problems were related to that event as there was no mention of patellar dislocation in the left knee prior to 1998. In support of his claim, the Veteran has submitted a March 2012 letter from N.M.S. M.D., who treated the Veteran for his initial knee injury in 1982. Dr. S noted that the earlier knee condition was completely different from the Veteran's current knee condition. Dr. S opined that the knee problems in service are related to his current problems, and are not related to the June 1982 injury. In the October 2012 remand, the Board found the February 2012 VA examination report to be inadequate as the examiner did not specifically consider the Veteran's statements regarding an in-service injury to his left knee. The Board noted that the Veteran had provided competent and credible testimony regarding injuring his knee at the National Training Center at Fort Irwin requiring him to be in MASH for five days. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board remarked that the credibility of the Veteran's contentions were bolstered by the following evidence: the February 1985 examination report at service enlistment showing no notation as to a knee scar or knee problems, the May 1990 examination report reflecting a one and half inch scar on the left knee, and the October 1987 Report of Medical History showing that the Veteran complained of trick/locked knee and a notation of status-post surgery for subluxing left patella. Finally, the Board recognized that in Dalton v. Nicholson, 21 Vet. App. 23 (2007), the United States Court of Appeals for Veterans Claims (Court) held that an examination was inadequate where the examiner did not comment on a Veteran's report of in-service injury and instead relied on the lack of evidence in the service treatment records to provide a negative opinion. As such, the Board remanded the claim for a new VA examination. This examination was performed in October 2012. The examiner recorded the Veteran's contentions and then reviewed the service treatment records and post-service medical documentation. After examining the Veteran, the examiner opined that it was less likely as not that the Veteran's current left knee condition was related to his military service. For his supporting rationale, the examiner noted that the Veteran injured his knee prior to enlisting. He explained that there was a lack of documentation of a left knee injury in the military service records and a lack of documentation of any ongoing left knee problems after the Veteran's initial period of active duty. The examiner further remarked that the Veteran had two different types of left knee injuries. He explained that the 1982 pre-service injury was an internal derangement, and the more recent 2007 surgery was for patellar subluxation. The examiner found it confusing that there was an October 1987 service record which indicated the Veteran was status post surgical procedure for subluxation left patella, when the records of the 1982 surgery were for a completely different type of injury. He said that there was no other documentation of any other injury to the left knee in the military service records which would suggest a left patella subluxation or surgical procedure. However, no mention was made in his rationale of the Veteran's report of an in-service injury. As such, within his rationale the examiner did not comment on the Veteran's report of in-service injury and instead relied on the lack of evidence in the service treatment records to provide his given negative opinion. Consequently, the Board previously found the given opinion to be inadequate and remanded the claim for a new VA examination. See Dalton, supra. The requested VA examination was provided in July 2013. The examiner noted that in 1982, while in partial arts training, the Veteran fell on his left leg. He noted that it was obvious that the Veteran's left leg was dislocated at the knee at the time, as his knee was directed laterally at a 90 degree angle. Several days after the accident, the Veteran had left knee surgery to repair his knee. Eight weeks later, the Veteran's cast was removed, and the Veteran returned to martial arts training. The examiner cited the 1982 hospital record which gave a diagnosis of internal derangement of the left knee with resultant partial medial collateral ligament tear, peripheral anterior horn tear of the left medial meniscus. The examiner recorded the Veteran's report of an in-service accident during night exercises in the desert in 1986. He noted that the Veteran's left leg was caught in a wire as he was running, forcefully twisting him around and causing him to fall to the ground. It was further noted that the Veteran limped for three to four months after the reported accident and believed that he had trouble with his left knee since that time. The examiner further noted that the service retention physical dated May 1990 showed no complaints of knee problems, and although there were records of more than 10 clinic visits between February 1986 and January 1987 for various problems, those records contained no complaints of knee problems. The examiner stated that the Veteran had an additional left knee injury in December 1998, when he fell after experiencing a back spasm. The examiner reviewed and commented on the subsequent X-rays, treatment records, and MRI reports. After performing an examination of the Veteran and taking imaging studies, the examiner found no documentation of degenerative or traumatic arthritis. There was no X-ray evidence of patellar subluxation. A prior X-ray had revealed unchanged postoperative changes to the proximal tibia with no acute osseous abnormalities. An MRI revealed no significant internal derangement and a slight buckling of the posterior cruciate ligament of doubtful significance, mild focal chondrosis, and presumed postsurgical change tibial tubercle transfer. The examiner opined that it was less likely than not that the Veteran's left knee disability was incurred during, caused by, a result of, or aggravated by military service. The examiner commented that the Veteran had extensive evaluation of his current left knee condition, and no significant arthritic changes, cartilage derangements, or ligamentous pathology was found. On arthroscopy, only patellar subluxation was diagnosed. The examiner said that therefore, only prior injuries or diagnoses relative to patellar subluxation would be relevant to the contention that the Veteran's current condition was service connected. The examiner remarked that the Veteran's pre-service injury in 1982 was severe, but patellar subluxation was diagnosed. He further stated that the Veteran's reported injury in 1986 was not diagnosed as patellar subluxation. He noted that the Veteran indicated on his October 1987 Report of Medical History that he had a history of "trick or locking knee," but when the VA examiner asked the Veteran about that indication in his service treatment records, the Veteran responded that he was referring to the surgery done in 1982. The VA examiner further noted that a service examiner commented in 1987 that the Veteran was "status post surgery for subluxation left patella" but explained that the service examiner most likely did not have access to the records of the 1982 surgery and so was stating his knowledge of what type of surgery was done. The VA examiner stated that the service examiner was not establishing a diagnosis of subluxation of the patella nor indicating that the Veteran had symptoms of subluxation; he was merely clarifying the Veteran's history. After reviewing the records, the first mention of patellar subluxation that the VA examiner found was in the May 2007 orthopedic pre-operative history. Specifically concerning the Veteran's pre-existing left knee disorder, the examiner opined that it was less likely than not that the Veteran's pre-existing left knee disability was aggravated by his military service. The examiner opined that the Veteran's reported in-service injury to his left knee most likely caused temporary or intermittent symptoms during service and not a permanent condition or worsening of any underlying pathology, as the Veteran did not report symptoms common to patellar subluxation (such as popping, clicking, catching, or giving way) between 1986 and 1998. The examiner considered the Veteran's statements in conjunction with what the service treatment records did and did not show and opined that there was not a sufficient nexus to establish a causative role between the reported 1986 in-service injury and the current knee condition. The examiner additionally commented on the March 2012 positive nexus opinion of Dr. S.. The VA examiner agreed that the Veteran's 1982 injury was unrelated to the Veteran's current left knee condition. He disputed Dr. S.'s contention that the Veteran's current left knee condition was "100 percent related" to the Veteran's reported in-service knee problems, as Dr. S.'s letter did not indicate if he was aware of the Veteran's intervening knee injury in December 1998. He further remarked that Dr. S. did not state a rationale for his given opinion. Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002). As reviewed above, although the Veteran experienced a left knee injury prior to entering active duty, the evidence suggests that the residuals of that injury resolved by the time the Veteran entered active duty. In that regard, the Board notes that the Veteran's service entrance examination is negative for a current left knee disorder, and both the March 2012 letter from Dr. S. and the July 2013 VA examiner opined that the Veteran's current left knee disability is separate and distinct from his 1982 martial arts injury. As such, the Board finds that for the purpose of the current claim, the presumption of soundness applies. The medical evidence of record clearly establishes the presence of a current left knee disability for VA purposes. Also, the Board finds the Veteran's account of experiencing a left knee injury during night exercises in 1986 while on active duty to be credible, despite the lack of contemporaneous documentation in service treatment records. His accounts of being injured have been consistent, and the Veteran is competent to describe such an observable symptom, even as a layperson. 38 C.F.R. § 3.159(a)(2). The evidence of record therefore clearly shows an in-service trauma and a current disability. What the Veteran must still show to establish service connection for his current left knee disability is that it is related to his in-service left knee injury. A disorder may be service connected if the evidence of record shows that the Veteran currently has a disorder that was chronic in service or that was chronic as defined by regulation with continuity of symptomatology demonstrated after service. 38 C.F.R. § 3.303(a),(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A Veteran is also competent to testify regarding facts or circumstances that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2); see also Layno v. Brown, 6 Vet. App. 465, 471 (1994) ("[C]ompetent testimony is . . . limited to that which the witness has actually observe, and is within the realm of his personal knowledge"). However, findings of competency and credibility are two distinct matters, and after a careful review of the evidence, the Board finds that while the Veteran is competent to testify as to observable symptoms, like experiencing pain after twisting his knee and falling during a training exercise, his assertion that he experienced left knee pain since service is not credible. Significantly, although the Veteran currently asserts that he has experienced left knee symptoms continually since his in-service left knee injury, he has not always asserted a continuity of such symptoms. In fact, the record reflects that on a May 1990 Report of Medical History-completed after the in-service accident-the Veteran indicated that he did not experience any arthritis, rheumatism, or bursitis; bone, joint or other deformity; lameness; or "trick" or locked knee. Because the Veteran has contradicted himself, the Board finds his statements regarding a continuity of symptomatology not credible. See Pond v. West, 12 Vet. App, 341 (1999). Having found the Veteran's statements that his left knee disability has persisted since his active duty service not credible, the Board finds that service connection for a left knee disability on the basis that such disability became manifest in service and persisted since is not warranted. As there is no competent and credible evidence that a left knee disability was manifested in the first postservice year, there is also no basis for considering (and applying) the 38 U.S.C.A. § 1112 chronic disease. 38 C.F.R. §§ 3.307, 3.309. Regarding whether the Veteran's current left knee disability is otherwise related to his service, to include his conceded 1986 accident therein, the weight of the persuasive medical evidence of record does not support the Veteran's claim. When evaluating this evidence, the Board must analyze its credibility and probative value, account for evidence which it finds to be persuasive or unpersuasive, and provide reasons for rejecting any evidence favorable to the appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The July 2013 VA examiner reviewed the Veteran's entire claims file, including his service treatment records, and opined that the Veteran's current left knee disability was less likely than not related to his military service. In reaching this conclusion, the VA examiner noted the Veteran's assertions of an in-service left knee injury during a training exercise in 1986. He also reviewed the post-service treatment records, considered the Veteran's self-reported history, and commented on the evidence of record favorable to the Veteran's claim. Here, the Board places great weight on the July 2013 VA opinion, as it was provided by a physician (who by virtue of training and experience is eminently qualified to offer this opinion), contains a complete description of the left knee disability, include rationales for the opinions provided, and reflects familiarity with the clinical data and the Veteran's complete medical history. Concerning the March 2012 letter from Dr. S., while Dr. S. mentioned the Veteran's pre-service injury, he made no comment regarding the Veteran's post-service history. Further, it is not clear whether Dr. B. reviewed any of the Veteran's service or post-service treatment records. Additionally, Dr. B. provided no supporting rationale for his given opinion. For these reasons, the Board finds the March 2012 letter from Dr. S. to be of less probative value and outweighed by the other evidence of record. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) (in assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits). As for the statements from the Veteran relating his current left knee disability to his experiences in service, while he may be competent to testify as to the symptoms he experiences (such as pain), there are intervening possible etiologies for his right hip pain (such as a fall in December 1998). It is beyond his competence as a layperson to ascribe his current disorder to any of these particular etiologies. The Veteran is a layperson and lacks the training to opine regarding medical etiology in this case; differentiating between multiple etiologies is a question that is medical in nature and may not be resolved by mere lay observation. See 38 C.F.R. § 3.159(a)(2). Based upon the foregoing, the preponderance of the evidence is against a finding of a nexus between the Veteran's current left knee disability and his service, to include his 1986 training accident therein. Accordingly, the appeal seeking service connection for a left knee disability must be denied. ORDER Entitlement to service connection for a left knee disability is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs