Citation Nr: 1342931 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 09-19 120 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a left knee disability. REPRESENTATION Veteran represented by: Calvin Hansen, Attorney at Law ATTORNEY FOR THE BOARD S. Nathanson, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1969 to September 1971 with subsequent Reserve service. These matters initially came before the Board of Veterans' Appeals (Board) from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska that continued the denial of service connection for chondromalacia patella of the right and left knees. The Veteran requested a hearing with a Decision Review Officer (DRO) in September 2008. A hearing was scheduled for February 2009. The Veteran withdrew his hearing request in February 2009. His hearing request, therefore, is deemed withdrawn. See 38 C.F.R. §§ 20.702(d); 20.704(d) (2013). The Veteran's claim for whether new and material evidence had been received to reopen the claim for service connection for a right knee disability and a left knee disability was previously before the Board in April 2011. The Board reopened the claim and remanded it for further development. The Board remanded the matters again in November 2011. As all directed development has been conducted, as will be discussed in greater detail below, the claims for service connection are properly before the Board at this time. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDINGS OF FACT 1. The Veteran had chondromalacia patella in service that was acute and resolved. 2. A right knee disability did not manifest in service and is not attributable to service. 3. A left knee disability did not manifest in service and is not attributable to service. 4. Arthritis did not manifest in service or within one year of separation. CONCLUSIONS OF LAW 1. A right knee disability was not incurred in or aggravated by service, nor may arthritis be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1111, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309 (2013). 2. A left knee disability was not incurred in or aggravated by service, nor may arthritis be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1111, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 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). Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice should be provided prior to an initial unfavorable RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. This notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The Veteran was provided all required VCAA notice in a July 2007 letter, prior to the initial adjudication of the claim in September 2007. Subsequent VCAA notice letters were provided to the Veteran in May 2011, July 2011, and August 2012. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA obtained the Veteran's service treatment records from active service, the Reserves, and post-service VA treatment records. The Veteran indicated that he sought treatment for his knee disability in the late 1970s or early 1980s. Although the records were not obtained, the Veteran stated that the physician died and provided no way for VA to obtain the records. In addition, the Veteran was provided with VA examinations in June 2011 and April 2012. As the examinations, when taken together, included a review of the pertinent medical history, clinical findings, diagnoses, and were supported by medical rationale, the Board finds that the evidence is adequate to make a determination on this claim. As directed in the April 2011 Board remand, the RO scheduled the Veteran for an examination to determine the etiology of his knee disability. As discussed below, that examination report was inadequate and the Board remanded the matter again in November 2011 for an additional VA medical opinion. As directed in the November 2011 Board remand, the RO scheduled the Veteran for an examination and the medical examiner provided an adequate opinion. Therefore, the RO has complied with the directives contained in the Board's remands. Stegall v. West, 11 Vet. App. 268, 271 (1998). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claims for service connection are thus ready to be considered on the merits. Legal Principles As an initial matter, the Board notes that the Veteran does not allege, and the evidence does not reflect, that the disabilities for which he claims entitlement to service connection are the result of participation in combat with the enemy. Therefore, the combat provisions of 38 U.S.C.A. § 1154 (West 2002) are not applicable. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303(a). 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). 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). In addition, 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 they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. As arthritis is considered to be chronic diseases for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Analysis The Veteran contends that his current right and left knee disabilities are related to service. However, the evidence establishes that the Veteran's in-service chondromalacia patella resolved and is not related to the current chondromalacia patella, patellofemoral syndrome, or arthritis. The Veteran's service treatment records reflect a complaint of bilateral knee pain in May 1971. The military medical personnel noted that the Veteran may have bilateral chondromalacia patella. On clinical examination at separation in September 1971, the examiner reported that the Veteran's lower extremities were normal and the Veteran denied cramps in his legs, arthritis, or a "trick" or locked knee. A review of the treatment records from the Veteran's service in the Reserves show no complaints or diagnoses related to his knees from April 1974 to September 1993. On clinical examination in April 1974, May 1978, April 1982, January 1986, March 1989, May 1992, and September 1993, the Veteran's lower extremities were "normal" and the Veteran denied a "trick" or locked knee, cramps in his legs, and arthritis. In January 1994 the Veteran complained of bilateral knee pain. He was referred to Plum Creek Medical Facility and the examiner reported that the Veteran had arthritis, but that there was no swelling of the joints, redness, hotness, or tenderness. A March 1995 physical profile indicated the Veteran had arthritis in his right and left knee. The Veteran was also afforded a VA examination in March 1994. The examiner noted that the Veteran developed bilateral knee pain in service with no history of injury or associated activity. He was diagnosed with inflammation and was not provided medication nor placed on light duty. On examination, the examiner reported that there was no swelling, deformity or other impairment of the knees and rendered a diagnosis of chondromalacia patellae, bilateral. An X-ray examination report showed a negative impression for the right and left knee with no abnormalities. A review of the post-service VA treatment records show numerous complaints of bilateral knee pain along the joint line medially with some crepitus, and a diagnosis of degenerative joint disease of the knees. The Veteran denied any injuries to his knees. The Board notes that the evidence reflects that arthritis was not manifest, noted, or diagnosed during service or within one year of separation. In addition, the Veteran did not have characteristic manifestations sufficient to identify the disease entity during service or within one year of separation. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. § 3.303(b). Therefore, the provisions of 38 C.F.R. § 3.303(b) are not applicable in this case. The most probative evidence establishes that the Veteran's current bilateral knee disability did not have its onset in service. The Veteran was afforded a VA examination in June 2011. The Veteran reported bilateral knee pain, weakness, stiffness, popping, and snapping. He stated that his symptoms possibly started in the 1970s following his return from Vietnam. The examiner rendered a diagnosis of bilateral knee chondromalacia patella and opined that the current knee condition is less likely as not due to or a result of active military duty. The examiner reasoned that it was determined in the 1994 VA opinion that the in-service knee pain was temporary and responded to treatment without residual disability or ongoing chronic problems. The 1994 examiner, however, did not provide such an opinion and merely rendered a diagnosis of chondromalacia patella. As such, the Board remanded the matter for a new opinion. The Veteran was afforded a VA examination in April 2012. The Veteran reported bilateral knee pain commencing in 1971, two to three months after returning from Vietnam. He indicated that he did not remember any specific injury to his knees. He denied any treatment other than anti-inflammatories and reported using Advil and Tylenol for as long as he could remember. He indicated that he sought treatment for his knees in the late 1970s or early 1980s, however, the physician subsequently died. He stated that he did not resume care for his knees until he was diagnosed with diabetes mellitus in 2003. X-ray examination revealed small enthesophytes extending from the anterior, superior patellae and anterior tibial spines. There was no fracture, dislocation, or significant degenerative changes. The examiner rendered a diagnosis of patellofemoral syndrome and opined that it was less likely than not that the onset of the Veteran's bilateral knee disability had causal origins in active service and the current pain in his knees is less likely than not a manifestation of his pain in service. The examiner reasoned that the Veteran's service treatment records from April 1974 until March 1995 showed no complaints or diagnoses related to the Veteran's knees and the Veteran denied problems with his lower extremities and his joints. The examiner remarked that the preponderance of evidence suggests that the Veteran was evaluated in service for bilateral acute knee condition which subsequently resolved. After a careful review of the record, the Board finds that the evidence weighs against the Veteran's claim. The April 2012 VA examiner explained the reasons for his conclusions based on an accurate characterization of the evidence of record, including the Veteran's lay statements, medical history, and clinical findings, and this opinion is therefore entitled to great probative weight. See Nieves-Rodriguez, 22 Vet. App.295, 304 (2008). The Board has also considered the Veteran's lay statements of recurrent knee pain since service and that his knee disability is due to exposure to Agent Orange while in service. In regard to the assertion that his knee disability is due to exposure to Agent Orange exposure, VA laws and regulations provide that, if a Veteran was exposed to Agent Orange during service, certain listed diseases are presumptively service-connected. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.309(e). Patellofemoral syndrome, chondromalacia patella, and arthritis of the knee are not included on the list of presumptive diseases. In addition, there is no evidence, other than the Veteran's generalized lay assertions, that establishes the Veteran's bilateral knee disability was due to Agent Orange exposure. Therefore, the Veteran is not entitled to service-connection based on this theory of entitlement. In regard to the Veteran's assertion that his knee disability began in service and has continued thereafter, the Board acknowledges that the Veteran is competent to provide evidence of that which he experiences, including his symptoms and their history. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, competence must be distinguished from probative weight. Under these circumstances, it is the Board's responsibility to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192- 93 (1992)). See also Guerrieri v. Brown, 4 Vet. App. 467, 470- 471 (1993). The Board is obligated under 38 U.S.C.A. § 7104(d) (West 2002 & Supp. 2013) to analyze the credibility and probative value of all evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide reasons for its rejection of any material evidence favorable to the Veteran. See, e.g., Eddy v. Brown, 9 Vet. App. 52 (1996); Meyer v. Brown, 9 Vet. App. 425 (1996); Gabrielson v. Brown, 7 Vet. App. 36 (1994). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Veteran indicated on multiple reports of medical history during his Reserve service that he did not have, and had never had, a trick or locked knee, arthritis, rheumatism, or bursitis, or leg cramps. The Veteran's contemporaneous statements on these reports of medical history are of greater probative weight than his later statements made during the course of an appeal from the denial of compensation benefits. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board decision giving higher probative value to a contemporaneous letter the Veteran wrote during treatment than to his subsequent assertion years later); see also Fed. R. Evid. 803(4) (noting that statements made to physicians for the purposes of diagnosis and treatment are exceptionally trustworthy and not excluded by the hearsay rule because the declarant has a strong motive to tell the truth in order to receive proper care); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) ("[R]ecourse to the [Federal] Rules [of Evidence] is appropriate where they will assist in the articulation of the Board's reasons"); Pond v. West, 12 Vet. App. 341, 345 (1999); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (interest may affect the credibility of testimony). The statements he made on the reports of medical history are also consistent with the clinical findings of normal lower extremities during the examinations. The Veteran's indication that he did not have a trick or locked knee at the same time that he reported that he had other symptoms such as gonorrhea, adverse reaction to serum, drug, or medicine, hernia, hearing loss, severe tooth or gum trouble, broken finger, and loss of finger or toe, further suggest a lack of knee symptoms at that time. Buczynski v. Shinseki, 24 Vet. App. 221, 226-27 (2011) (citing Fed. R. Evid. 803(7)) (where there is a lack of notation of medical condition or symptoms where such notation would normally be expected, the Board may consider this as evidence that the condition or symptoms did not exist). The Board also notes that the Veteran indicated that he sought treatment for his knee in the late 1970s or early 1980s, but that the physician subsequently died. The Veteran has not provided a way for the Board to obtain the treatment records nor substantiate their existence. It also appears unlikely that the Veteran would seek treatment for his knees while, on clinical evaluation, his knees were "normal" and he denied any trouble with his lower extremities. In light of the clinical evaluations and reports of medical history from 1974 to 1993 that show normal knees and no complaints or indications of symptoms of knee pain, the Board finds that, while the Veteran may be competent to report his symptoms and onset of pain, his statements are inconsistent with the record and therefore not credible. In sum, the Board finds that service connection for a left and right knee disability must be denied because the weight of the evidence is against the claim. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. Here, however, as the preponderance of the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER A right knee disability is denied. A left knee disability is denied. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs