Citation Nr: 1341276 Decision Date: 12/16/13 Archive Date: 12/31/13 DOCKET NO. 10-22 061 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran served on active duty from April 1969 to April 1985. This appeal comes before the Board of Veterans' Appeals (Board) from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. Jurisdiction over the case was subsequently transferred to the RO in Indianapolis, Indiana. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. FINDING OF FACT A right knee disability was not present until more than one year following the Veteran's discharge from service and is not related to service. CONCLUSION OF LAW The criteria for service connection for a right knee disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was provided all required notice in a letter mailed in April 2008, prior to the initial adjudication of the claim. The record also reflects that all service treatment records (STRs), Social Security Administration (SSA) records, and available post-service medical evidence identified by the Veteran have been obtained. Neither the Veteran nor her representative has identified any outstanding, existing evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. The Veteran was afforded an appropriate VA examination and probative opinions (i.e. opinions supported by a detailed rationale) have been obtained with respect to the disability at issue. Accordingly, the Board will address the merits of the Veteran's claim. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests arthritis to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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 claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis Service treatment records reflect that the Veteran was seen in September 1981 with a history of bilateral knee pain. The Veteran reported falling on the left knee one-month earlier. X-ray images showed no significant abnormality. Examination showed weakness of both quadriceps, and the examiner noted the Veteran was overweight. Although the examination was conducted to determine if the Veteran had chondromalacia, no diagnosis was rendered; the records only note that the Veteran was given quadriceps strengthening exercises. A November 1983 examination record reflects normal clinical findings for the lower extremities, no history related to the right knee, though other histories were noted, and a negative history as to "trick' or locked knee" or "bone, joint, or other deformity." A July 1984 X-ray report reveals the Veteran's history of recurrent left knee pain and indicates that X-ray imaging revealed degenerative changes of the left knee. An August 1984 treatment record reflects the Veteran's complaint of pain in the knees for three days. She explained that she had a pulling stretch sensation with bending. After examination, muscle strain was diagnosed. The record of the March 1985 separation examination reveals normal clinical findings for the lower extremities, and negative histories as to "trick' or locked knee" or "bone, joint, or other deformity." The Veteran did report "arthritis, rheumatism, or bursitis" and indicated that she had had painful knee joints since 1982, secondary to arthritis, which was treated with Aspirin and was currently asymptomatic. A December 2000 VA treatment record reveals complaints pertaining to the hands, right ear, and left leg. The Veteran did not report any symptoms involving the right knee or leg. An April 2002 VA treatment record reveals the Veteran's history of joint pain. A July 2002 VA treatment record reflects the Veteran's history of a knot on the right knee for six months. The Veteran did not report any symptoms involving the right knee, though she did report symptoms involving the left knee. A January 2007 non-VA treatment record reveals the Veteran's history of traumatic lower leg pain. X-ray images showed mild degenerative changes and effusion. A May 2007 VA treatment record reflects the Veteran's history of bilateral knee pain for approximately 10 days. She reported falling twice that year. Examination revealed crepitus in each knee and slowed range of motion. She was assessed with knee pain. A March 2008 SSA form reports the Veteran's history of knee pain since a fall injury in January 2007. A May 2008 SSA examination report reveals the Veteran's history that she was initially diagnosed with degenerative arthritis in the 1980s. She reported that it gradually worsened and that she fell in January 2007, when her right leg slipped under her and her left knee hyperflexed. After examination, the record was noted to have "allegations of degenerative disease of the bilateral knees" with "slight" decreased range of motion. An October 2008 VA examination record reveals the Veteran's history of right knee pain since some time between 1977 and 1980. She reported that she performed "a lot" of heavy exercising at that time and that she complained of heavy knee pain. She did not remember any specific injury dates but did remember falling several times in that three-year period. She reported that she also fell and injured the right knee in August 2002 and January 2007. After examination, degenerative joint disease of the right knee was diagnosed. The examiner reported that it appeared that the Veteran complained of pain in her knees in 1982, 1984, and 1985. The examiner noted that the Veteran also had several falls after service, however. The examiner found it would be speculative to relate the current right knee arthritis to active duty. A November 2008 addendum opinion indicates that the examiner was asked to comment on whether the right knee condition was the result of service. The examiner noted that the Veteran had multiple injuries of the knee and complaints during and after service. The examiner explained that degenerative arthritis has a multitude of components, adding that it could be posttraumatic or genetic. The examiner reported that it could be posttraumatic, although the Veteran had only minor injuries. The examiner found it was most likely genetically related but indicated that current medical research did not know all of the exact causes and reasons for osteoarthritis. However, the examiner found it was less likely than not that the right knee condition was the result of service. The examiner reiterated that there was some genetic component to the Veteran's arthritis. The examiner found that, "whether [the Veteran] was in the military or worked in another type of job, she more likely than not would have had similar right knee conditions." The examiner thus found active duty was less likely than not a direct cause of the osteoarthritis. In August 2009, the Veteran reported injuring her right knee in the winter of 1979/80. She reported that she did not go to the doctor or sick call at that time. She explained that she fell on her right knee on a cement floor after her bed rolled out from under her. In October 2010, the Veteran testified that she injured both knees in the late 1970s/early 1980s during annual physical conditioning. She reported that the she began complaining to doctors, who found she had degenerative arthritis. She reported that she continued to have the symptoms throughout service, particularly stiffness. She also testified that her mother and sister had "a lot of knee problems" so it "could be genetic." She explained that she did not know the origin of the knee pain, though she did remember injuring the knee during service when she hit it on the cement floor. She added that she was already experiencing stiffness in the knee at the time of this injury. Following the review of the evidence, the Board must conclude that service connection is not warranted for the Veteran's right knee disability. Initially, the Board finds the preponderance of the evidence shows that the current right knee disability was not present until more than one year after service. The Board acknowledges that the service treatment records reflect treatment for knee pain in September 1981 and August 1984, the separation examination record reveals a history of painful knee joints since 1982, then asymptomatic, and the Veteran currently reports knee injury in service and chronic knee symptoms since the late 1970s/early 1980s. Although the service treatment records reflect treatment for knee complaints in 1981 and 1984, the associated records indicate that the complaints were due to a muscle issue rather than a knee disability per se, and the findings on X-ray imaging in 1981 were within normal limits. Furthermore, the Board finds the history at separation is not probative evidence of a chronic knee disability during service. Initially, the Board notes that although the Veteran reported persistent knee pain at separation, the record does not indicate that the pain was actually due to the knees, rather than the previous muscle issues. Moreover, the history of persistent right knee symptoms is contradicted by the service treatment records which, though reflecting persistent complaints and diagnoses pertaining to the left knee, only reflect two short-term episodes of right knee symptoms, which were ultimately attributed to muscle issues rather than a knee disability. Based on the inconsistency between the histories recorded in the treatment records and at separation, and the history at separation that the knees were then asymptomatic, the Board finds the history provided at separation is only credible and probative if it is interpreted as a history of recurrent or intermittent knee pain rather than chronic right knee pain. This determination is supported by the post-service medical records which do not reflect any symptomatic complaints pertaining to the right knee until after the fall in January 2007, though the Veteran received treatment, to include for complaints pertaining to the left knee, during that time, and which initially reflect histories of right knee pain since the fall in January 2007. For the same reasons, the Board finds the Veteran's current history of symptoms since the late 1970s/1980s is only credible and probative if it is interpreted as a history of recurrent or intermittent knee pain rather than chronic knee pain. Although the Board finds the Veteran is credible and competent to report intermittent knee pain during and since service, the Veteran is not competent to diagnose a chronic right knee disability manifested by intermittent symptoms as opposed to a distinct episodes of symptoms or even multiple episodes of acute disorder manifested by pain and other symptoms, and based on the absence of a diagnosis of a disability until 22 years after service, and the VA examiner's probative determination that the current right knee disability is not related to service, the Board finds that the preponderance of the evidence establishes that no chronic right knee disorder was present until more than one year after the Veteran's discharge from service. The preponderance of the evidence also shows that the right knee disability was not caused by service. Although the Veteran reported falling on her knee during service, the record does not include any medical findings of long-term abnormality related to the fall, and the Veteran has not alleged that the symptoms began or increased in conjunction with the fall. Moreover, a VA examiner provided a probative opinion that the right knee disability was not related to service, to include the reported fall. There is no contrary medical opinion of record. Accordingly, service connection is not warranted for a right knee disability. ORDER Service connection for a right knee disability is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs