Citation Nr: 1340666 Decision Date: 12/09/13 Archive Date: 12/20/13 DOCKET NO. 10-46 217 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for a left knee disability. REPRESENTATION Veteran represented by: Mississippi Veterans Affairs Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty from May 1973 to May 1975. This case comes before the Board of Veterans' Appeals (Board) on appeal of March 2008 and January 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which denied the claims on appeal. The Board notes that the Veteran's claim was originally characterized generally as entitlement to service connection for a knee condition. As noted in May 2012 and substantive appeal and as documented in his January 2013 hearing transcript, the Veteran is only seeking service connection for his left knee disability. As such, issue is best characterized as noted on the cover page of this decision. The Veteran testified at a hearing before an RO Decision Review Officer (DRO) in August 2009 and at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in January 2013. Transcripts of both hearings are associated with the claims file. The claim was remanded in March 2013 for further development and has since been returned to the Board for adjudication. In addition to a paper claims file, the Veteran also has an electronic file known as a Virtual VA file. The Board has reviewed both files prior to reaching the decision below. FINDING OF FACT A left knee disability was not shown during service, or for many years thereafter, and is not shown to be related to any event, injury, or disease during active service. CONCLUSION OF LAW A left knee disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 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 claims, the 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); 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 August 2007 and October 2009 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2013); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claim. The letters 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. 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). Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the Veteran has been continuously represented by an experienced state service organization and has submitted argument in support of his claims. Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claims and is not prejudiced by a decision in this case. As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran. 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). As noted above, the Veteran also was afforded a hearing before the undersigned Veterans Law Judge (VLJ) during which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ/DRO who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ explained the issue on appeal during the hearing and discussed the basis of the prior determination, the elements of the claim that were lacking to substantiate the claim for benefits, and suggested the submission of evidence that would be beneficial to the Veteran's claim. Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the VLJ substantially complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records (STRs) and VA medical records are in the file. Records from the Social Security Administration (SSA) also have been associated with the claims file. Private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran has at no time otherwise referenced outstanding records that he wanted VA to obtain or that he felt was relevant to the claim. 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) (2012). In this case, the Veteran was provided a VA examination of the knee in April 2013. The examiner considered the Veteran's complaints and contentions, as well as the service treatment records, post-service treatment records, and by conducting a physical examination. Based on the foregoing, the examiner concluded that the Veteran's left knee disability was not due to or aggravated by an event, disease, or injury incurred during active service. Therefore, as the opinion was based on review of the claims file, including the Veteran's statements, and provided an extensive rationale for the opinions provided, the Board concludes that the opinion provided is adequate. Given the foregoing, the Board finds the evidence of record to be thorough, complete, and sufficient upon which to base a decision with respect to the Veteran's claims 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). As such, the Board finds that the medical evidence of record is sufficient to adjudicate the Veteran's claim. 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). Legal Criteria Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may 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). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Arthritis is deemed to be a chronic disease under 38 C.F.R. § 3.309(a) and, as such, service connection may be granted if the evidence shows that the disease manifest to a degree of ten percent or more within one year from the date of separation from service. 38 C.F.R. § 3.307. A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In adjudicating these claims, the Board must assess the competency and credibility of the veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). Lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witnesses' personal knowledge. Barr v. Nicholson, 21 Vet. App. 303 (2007), Layno v. Brown, 6 Vet. App. 465 (1994). Factual Background and Analysis The Veteran contends that his current left knee disability is a result of a documented in-service injury on the flight deck. He contends that he has experienced left knee pain since that time. There was no notation of any left knee injury during his discharge physical examination dated in April 1975. Following the examination, the service treatment records show that in May 1975, the Veteran was working in a tractor on the flight deck when a tow bar snapped. The treating personnel indicated that the Veteran fled, and that he was unsure how the "injury" occurred. The Veteran indicated that this unidentified injury may have been caused by running. He was sent for an x-ray. No further treatment was indicated, nor was any documentation of a left knee injury made. The Veteran contends that this incident resulted in the current left knee arthritis. The Veteran sought VA outpatient treatment in 1976 at which time he reported foot pain. He reported being treated for foot pain during service, but did not report any injury or treatment for a left knee complaint. In a 1997 problem list, the Veteran indicated that he injured his left leg in service, but there was no diagnosis related to a left knee disability. In the mid to late-1990s, the Veteran was treated for significant varicose veins in the bilateral legs, but at no time did he report any injury to the left knee during service. The Veteran sought emergent VA treatment for right knee pain in September 2006, during which he reported a history of right meniscal tear. At that time, he made no mention of a left knee disability or in-service injury to the left knee. X-rays dated at that time showed no acute fracture or dislocation in either knee. The joint spaces were well preserved and the bony architecture was normal. The radiologist indicated that the patellofemoral joint spaces are normal and there is no joint effusion seen in either knee. The radiologist noted there was some bilateral nodular and serpiginous soft-tissue density appreciated in both knees, suspicious for varicose veins. In 2007, the Veteran reported increasing bilateral leg pain that occurs mostly at night and at rest. The treating professional indicated that it was likely due to peripheral vascular disease (PVD). During a SSA disability determination examination in June 2007, the Veteran was diagnosed as having osteoarthritis/degenerative joint disease involving the knees, back, ankles, wrist, and hands. The examiner did not attribute any left knee disability to an incident in service. The Veteran submitted multiple statements from his service buddies that recalled him being pinned down by a tractor aboard a ship and caused him "serious leg injuries" and had to be "carried away on a stretcher." In April 2013, the Veteran was afforded a VA examination to determine the nature and etiology of his left knee disability. He was diagnosed as having bilateral knee arthritis, diagnosed in 2013, and morbid obesity. The examiner opined that the Veteran's left knee disability is less likely than not related to his military service. In reaching this conclusion, the examiner noted that it is suspect that the Veteran did not report an in-service injury to the knee during VA treatment over the years. Finally, he opined that the Veteran's obesity is the cause of the minor changes in the left knee as shown over time. There is no clinical opinion to the contrary. Upon careful review of the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a left knee disability. It is clear that the Veteran has a current left knee disability. As noted above, he contends that his current disability is due to a left knee injury incurred during active duty, but based upon the evidence of record, the Board concludes it was not. First, as shown above, the Veteran was not diagnosed as having osteoarthritis of the left knee within his first post-service year, nor has he so contended. As such, he is not entitled to service connection for a left knee disability on a presumptive basis. The Board finds the opinion expressed in the April 2013 VA examiner's report to be credible and highly probative as to the element of nexus. The report was based on a careful review of the claims file, including a detailed notation of the Veteran's medical history. The examiner also reviewed relevant VA and private treatment records. Further, a complete and through rationale is provided for the opinion rendered. As noted, during the course of post-service treatment, the Veteran generally did not report any in-service injury to his left knee, nor did he report any history of chronic left knee complaints since service or the claimed injury itself. Additionally, the Veteran's diagnosis has been attributed to his obesity as reflected in the minor left knee changes over the years. As such, the examiner concluded that the Veteran's left knee disability is less likely than not related to an event, injury, or disease while on active duty. The Board has considered the Veteran's contentions that he injured his left knee during the tow bar incident during service and he has had left knee problems since service. The Board, however, has "the authority to discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Brown, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In this case, the "inherent characteristics" of the Veteran's current statements as to a continuity of his knee injury during service and knee problems since service are inconsistent with the objective medical record and his own more contemporaneous statements. Moreover, as noted in the March 2013 Board opinion denying service connection for an acquired psychiatric disorder, the Board specifically found that the Veteran's representations (and his buddy statements) regarding the severity of the documented tow bar incident are less than credible. In that regard, the Veteran was not shown to have any chronic left knee disability at service discharge. Of even greater significance, the Veteran was seen numerous times following service for his physical and psychiatric complaints, but he did not report any in-service injury until the late-1990s. Even so, he did not report an injury to his left knee, this record only referenced a left leg injury. As noted above, his first diagnosis of a left knee appears to have occurred in the early-2010s. As such, the Board finds that had the Veteran been experiencing ongoing left knee problems since service, it would have been reasonable for him to make such an assertion to his treating professionals between service separation and his current diagnosis. The Board finds that all these factors weigh heavily against finding that the Veteran's current assertions of continuity of symptomatology since service to be credible. The Board acknowledges that the Veteran is competent to testify as to symptoms he has experienced during and since service. However, to the degree that such symptomatology satisfies the criteria for service connection for a left knee disability, the Board places far greater weight on the opinion of the April 2013 VA examiner. There is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a diagnosis of the left knee disability or a medical opinion regarding the etiology of his left knee disability. See 38 C.F.R. § 3.159 (a)(1) (2012) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). In short, the Board gives greater credence and weight to the contemporaneous and near contemporaneous medical records and the Veteran's statements when seeking treatment following service than his recent assertions of continuity of symptomatology and in-service injuries to the left knee, which were first made only after filing his claim for service connection. Moreover, the service treatment records show that he was able to "flee" the scene during the tow bar incident. This directly contradicts his statements and those submitted by his "buddies" that he was pinned down for hours with leg injuries and had to be carried out on a stretcher. Additionally, there is no evidence that the Veteran was hospitalized for this alleged in-service injury. Therefore, the Board finds that the Veteran's allegations of an in-service left knee injury and continuity of symptomatology until his treatment for left knee problems in the 2010s are not credible. Although the Veteran's buddies are competent to report to incidents they observed during service, the Board finds their statements as to the severity of the Veteran's in-service injuries to also lack credibility. These statements are specifically contradicted by the documentation in service of the Veteran fleeing the scene of the incident. As such, the Board assigns minimal probative value to the statements from the Veteran and his buddies as to the severity of this tow bar incident. Again, the most probative medical evidence specifically rules out a relationship between the Veteran's current left disability and the nonspecific in-service injury. The Board places more weight on the opinion of the competent VA medical professional who provided the April 2013 opinion, based on review of the medical records and claims file, and following examination and interview of the Veteran, than on the Veteran's lay assertions that his current left knee disability is attributable to his in-service injury. For the same reasons as discussed above, the Board finds that the Veteran's statements with respect to his in-service knee injury and continuity of left knee symptoms lack credibility. In summary, the preponderance of the evidence demonstrates that the Veteran's osteoarthritis of the left knee was not caused or aggravated by his military service. In that regard, the Board finds the conclusions of the April 2013 VA opinion provider of significantly more probative value than those of the Veteran based on his non-credible claims of continuity of left knee symptomatology from service and the buddy statements describing a more severe injury to the Veteran's legs than clearly documented in the service treatment records. The Veteran has not provided any competent and credible evidence to show his current left knee disability is related to an event, injury, or disease incurred during service. As such, the Board finds that the benefit of the doubt doctrine is not for application, and that the claim must be denied. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). (CONTINUED ON NEXT PAGE) ORDER Service connection for a left knee disability is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs