Citation Nr: 1343219 Decision Date: 12/30/13 Archive Date: 01/07/14 DOCKET NO. 12-36 037 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a right hip disability, including as secondary to a right knee disability. 3. Entitlement to service connection for a back disability, including as secondary to a right knee disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Shana Z. Siesser, Counsel INTRODUCTION The Veteran had active service from September 1960 to December 1963. This matter comes before the Board of Veterans' Appeals (Board) from a September 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Veteran requested a hearing in his November 2012 substantive appeal. The Veteran was notified of the scheduling of a hearing at the RO in April 2013. The records show that he failed to report for the hearing, and neither he nor his attorney has requested that the hearing be rescheduled. Accordingly, the Board considers the request for a Board hearing withdrawn. See 38 C.F.R. § 20.704(e) (2012); see also 38 C.F.R. § 3.103(c) (2012). In addition to the paper claims file, there are Virtual VA and Veterans Benefits Management System (VBMS) paperless files associated with the Veteran's case. A review of the documents in the Virtual VA paperless and VBMS claims files do not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. The Veteran's right knee disorder is not etiologically related to service, did not manifest within one year of separation from service, nor may it be presumed to be related to service. 2. The Veteran does not have a right hip disorder that was incurred during his active service or that is secondary to a service-connected disability. 3. The Veteran's back disorder was not incurred during his active service and is not secondary to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for a grant of service connection for a right knee disorder have not been met. 38 U.S.C.A. §§ 1110, 1111, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). 2. The criteria for a grant of service connection for a right hip disorder, including as secondary to a service-connected disorder have not been met. 38 U.S.C.A. §§ 1110, 1111, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). 3. The criteria for a grant of service connection for a back disorder, including as secondary to a service-connected disorder have not been met. 38 U.S.C.A. §§ 1110, 1111, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any 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). Proper notice from 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; (3) that the claimant is expected to provide; and (4) VA must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ), as was done in this case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). For claims pending before VA on or after May 30, 2008, 38 C.F.R. 3.159 was amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). In compliance with the duty to notify the Veteran of what information would substantiate his claim, the Veteran was advised that VA used a Schedule for Rating Disabilities (Schedule) that determined the rating assigned and that evidence considered in determining the disability rating included the nature and symptoms of the condition, the severity and duration of the symptoms, and the impact of the condition and symptoms on employment. Here, the VCAA duty to notify was satisfied by way of letters sent to the Veteran dated in March 2010 and April 2010 that fully addressed all notice elements. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the service treatment records, VA outpatient treatment records and private medical records. Additionally, a VA examination was conducted in September 2012 that is determined to be adequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service connection claims Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Pursuant to 38 C.F.R. § 3.303(b), when a chronic condition is present, a claimant may establish the second and third elements by demonstrating continuity of symptomatology. The term "chronic disease," whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis is included in 38 C.F.R. § 3.309. Additionally, chronic diseases may be presumptively service connected if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service. 38 C.F.R. §§ 3.307(a)(3); 3.309(a) (2013). The Board notes that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. §§ 1110, 1131. In the absence of proof of present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a non-service-connected disability which is aggravated by a service connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b) (2012); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Veteran contends that in 1961, he injured his knee while playing football. He stated that he was diagnosed with a sprain and was issued a cast for treatment. He was given a profile for no and light duty for eight weeks. The Veteran's service treatment records show that he sprained his right ankle in October 1961. In May 1962, he sprained his left hip. In January 1963, he injured his right foot. His separation examination in November 1963 showed a normal clinical evaluation of his lower extremities and his spine. There was no record of an injury to his right knee during service. On a July 1965 annual certificate of medical condition, the Veteran reported having had "swollen or painful joints" and a "trick or locked knee." The report contains an explanation by the Veteran where he elaborated that the swollen joints refer to his broken ankle and the trick knee refers to when he broke his right knee while playing football in the Marines and as a result, the knee locks frequently. The RO determined that although the service records did not show a right knee injury in service, it was conceded that such an injury occurred based on the Veteran's lay statement. The Veteran alleged that his knee began to hurt in 1998. He sought treatment and was diagnosed with arthritis. He underwent a knee replacement surgery in July 2008. The Veteran was afforded a VA examination in September 2012. He reported a sprain of the right knee in 1961. He also stated that he developed knee pain in 1998. The examiner conducted a review of the claims file and a full examination of the Veteran. He opined that the Veteran's current knee disability was less likely as not incurred in or caused by the claim in-service injury. As a rationale, the examiner stated that "the absence of a knee problem on his 1963 evaluation suggests that [the 1961 knee sprain] had healed and there was no additional intra-articular pathology. This was consistent with a sprain and the treatment described. The knee arthritis late in life is more likely associated with advancing age and would likely have occurred independent of the knee injury in service." Regarding the Veteran's hip, the examiner opined that a hip disability is less likely than not proximately due to or the result of the Veteran's service connected condition, because the evidence does not show that the knee condition is service connected and no significant hip pathology was found. Finally, regarding the Veteran's claimed back disability, the examiner again opined that it was not due to the Veteran's knee disorder. As a rationale, the examiner stated that the Veteran's advanced, multilevel lumbar spine degenerative changes are not readily explained by a gait disturbance associated with knee degenerative joint disease. Rather, it is more likely the result of a problem with the spine itself. Also, the evidence does not show that the knee is service connected. The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. The Board finds that the preponderance of the evidence is against the Veteran's claims of service connection. The Veteran is competent to report that he injured his knee during service. Although the service treatment records do not document the injury, the Veteran's account is supported by his 1965 report of medical history. Additionally, the evidence is clear that the Veteran has a current knee disability, including a 2008 knee replacement. However, the more probative evidence is against finding an etiology between his in-service injury and his current disability. The Veteran's separation examination showed a normal clinical evaluation of his lower extremities, including his knees, and the Veteran denied having any knee pain upon discharge from service. By his own account, the Veteran stated that his knee pain began in 1998, more than 30 years after his discharge from service. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (it was proper to consider the Veteran's entire medical history, including a lengthy period of absence of complaints). There is no evidence of a chronic disorder of arthritis in service. Rather, the VA examiner opined that the absence of a notation on his 1963 service separation report indicates that any injury to the Veteran's knee was acute and had healed. The examiner further stated that his current knee disability was more likely the result of aging which in the examiner's opinion would have occurred "independent of the knee injury in service." Although the Veteran contends that the 1998 knee pain, and subsequent 2008 knee replacement, is related to his in-service injury, there is no competent evidence to support this theory. The Veteran is competent to provide evidence as to his symptoms, but the VA examiner's opinion is more probative regarding the specific diagnoses and etiology, given his training and expertise. Jandreau, supra. The Board has considered the Veteran's complaints of continuity of symptomatology, but finds them to be not persuasive in light of there being no evidence of a chronic disorder in service, the separation exam showing a normal knee, and the Veteran's statement that his knee began to hurt in 1998. With regard to the Veteran's hip and back disorders, the Veteran claims they are secondary to his knee disability. As his knee disability does not warrant service connection, a grant of secondary service connection for hip and back disorder is also not warranted. 38 C.F.R. § 3.310. Although the Veteran has not alleged as such, the Board has considered the Veteran's claims of service connection for a right hip disorder and a low back disorder on a direct basis. However, there is no evidence of injury to the Veteran's right hip or back during service. Also, the VA examiner did not find a current diagnosis of a right hip disability. Therefore, the Veteran has neither a right hip nor a back disorder that was incurred as a result of service. In sum, the Board finds that the competent and probative evidence of record does not establish a link between the Veterans's currently diagnosed right knee disability and service. Additionally, service connection is not warranted for a right hip or back disability. The preponderance of the evidence is against the claims for service connection, and the claims must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for a right knee disability is denied. Service connection for a right hip disability is denied. Service connection for a back disability is denied. ____________________________________________ Cheryl L. Mason Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs