Citation Nr: 1329599 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 12-26 986 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for bilateral knee osteoarthritis. REPRESENTATION Veteran represented by: Montana Veterans Affairs Division ATTORNEY FOR THE BOARD Michael J. Adams, Associate Counsel INTRODUCTION The Veteran had active service from August 1976 to March 1983. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana on behalf of the VA RO in Louisville, Kentucky. FINDINGS OF FACT 1. The Veteran had multiple in-service knee injuries including left knee strains and numerous parachute jumps. 2. The Veteran is presently diagnosed with bilateral knee osteoarthritis. 3. The Veteran's diagnosed knee disability is not related to service. CONCLUSION OF LAW The criteria for service connection for a bilateral knee disability have not been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VCAA Notice and Duty to Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The United States Court of Appeals for Veterans Claims (Court) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. Further, the notice requirements apply to all five elements of a service connection claim: 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record shows that through a VCAA letter dated March 2011 the Veteran was informed of the information and evidence necessary to substantiate the claim for service connection. The Veteran was also advised of the types of evidence VA would assist in obtaining, as well as the Veteran's own responsibilities with regard to identifying relevant evidence. See Charles v. Principi, 16 Vet. App. 370 (2002). Additionally, he was informed of the criteria for assignment of an effective date, and/or disability rating, in the event of award of the benefit sought. The VCAA letter to the Veteran was provided in March 2011, prior to the initial unfavorable decision in June 2011. The Board also finds that there has been compliance with the VCAA duty to assist provisions. The record in this case includes service treatment records, a VA examination report, and lay evidence. Moreover, the Veteran has not reported receiving any VA or private treatment for his bilateral knee disability. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case, and no further action is necessary. See generally 38 C.F.R. § 3.159(c). No additional pertinent evidence has been identified by the Veteran. The Veteran also requested a hearing before the Board but declined to appear on his scheduled date. The record is negative for a good cause reason for the Veteran's absence and the request for a hearing is therefore considered withdrawn. The Veteran was provided a VA examination in April 2011. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Board notes that the examiner was provided with the claims file, and the Veteran's history and complaints were recorded. The examination report sets forth detailed examination findings to include a nexus opinion with adequate bases for the opinion. As such, the examination report is adequate to decide the claim of service connection. Furthermore, neither the Veteran nor his representative have challenged the adequacy of the examination. Thus, further examination is not necessary regarding the issue on appeal. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. II. Service Connection In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. In order to establish direct service connection for a disability, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection may also 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). Additionally, service connection may be established by either continuity of symptomatology after service under 38 C.F.R. § 3.303(b) or by initial diagnosis of the medical condition after service under 38 C.F.R. § 3.303(d). The Federal Circuit recently held that continuity of symptomatology under 3.303(b) applies only to chronic diseases listed in 38 C.F.R. § 3.309. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir 2013). The Veteran contends that his presently diagnosed bilateral knee disability is the result of his military service. Specifically the Veteran asserts that during service he participated in numerous parachute jumps and forced marches that required him to carry 60 to 80 pounds of equipment. He alleges that these activities caused his current bilateral knee disability. Preliminarily, the Board recognizes that the Veteran has been diagnosed with bilateral knee osteoarthritis. As such, the Veteran has established a present disability for the purposes of service connection. Hickson v. West, 12 Vet. App. 247, 253 (1999). The Veteran's DD 214 indicates that he was awarded a parachutist badge and air assault badge. Service treatment records (STRs) reflect that he experienced a number of injuries to his knees. Specifically, STRs demonstrate treatment for knee injuries in September 1976 (left knee strain), November 1978 (right knee Osgood-Schlatter's disease), and September 1979 (tendonitis of left leg; ligament strain). In September 1979, he was placed on restricted duty to to ligament strain. The report from a physical examination performed at enlistment in August 1976 revealed a prior left hip injury as well as pes planus but did not mention any knee symptoms. The Veteran did report left knee pain at a separation physical in August 1979 when Osgood-Schlatter's disease was noted. A May 1982 periodic physical examination report did not indicate any knee symptoms but did reference the Veteran's well healed scars from his pre-service hip surgery and past trauma. A report of medical history conducted in February 1984 in conjunction with enlistment in the National Guard revealed that the Veteran was in good health. An additional physical examination was also conducted prior to enlistment for the National Guard in January 1991, the report of which demonstrates that the Veteran had some scars and acne but was otherwise normal. At a VA examination in April 2011, the Veteran reported that the onset of his knee pain began in 2004. The Veteran did not report a specific injury or trauma during service but alleged he had been told that his airborne status may have caused his knee pain. He also stated that the onset of pain was gradual and that currently he experiences intermittent pain with flare ups that require medication. After conducting a physical evaluation of the Veteran the examiner diagnosed him with bilateral osteoarthritis of the knees. The examiner went on to opine that the Veteran's current bilateral knee disability was not due to, caused by or aggravated by any event as a result of active duty. In reaching this conclusion the examiner noted that the STRs did not show any complaints of knee symptoms after 1979 and that no additional complaints regarding the Veteran's knees were of record until the April 2011 VA examination. The examiner also noted the lack of complaints concerning the Veteran's knees at his National Guard enlistment physical examination in January 1991. Despite the fact that the Veteran experienced in-service knee injuries, the evidence in this case weighs against a finding that the Veteran's bilateral knee disability was caused by or otherwise began during service. In this regard, the Board finds that such injuries were acute and transitory and resolved without residual disability. As described, the VA examiner concluded that the Veteran's bilateral osteoarthritis was not due to or aggravated by the Veteran's active duty service. There is no other competent medical evidence of record that establishes a nexus between the Veteran's current disability and any event or injury that may have occurred during service. While the Veteran is competent to report any symptoms he has experienced, such as pain, or limitation of motion during flare-ups, he is not competent to proffer a complex medical opinion. Barr v. Nicholson, 21 Vet. App. 303 (2007). Thus, even though the Board finds the Veteran's complaints of his symptomatology to be credible, his lay testimony is simply not competent to establish a nexus opinion between his bilateral knee disability and his military service as he has not been shown to have had the requisite medical training. As such, the weight of the evidence is against a finding that the Veteran's bilateral knee disability is related to service. Based upon this evidence, the Board also finds that continuity of symptomatology of bilateral knee arthritis since service is not established. The Veteran has not alleged experiencing symptoms since service or that symptoms began within one year of separation. In fact, at the April 2011 VA examination the Veteran reported that his symptoms began in 2004, nearly 21 years after separation. Furthermore, the record is negative for any reports of treatment until the examination in 2011, approximately 28 years after separation. Additionally, the report of medical history from February 1984 and the physical examination in January 1991 were both negative for any indication of knee symptoms. Based on this evidence, the Board does not find that the Veteran has consistently reported symptoms of knee problems since service nor does the evidence demonstrate that he experienced symptoms since separation. Therefore service connection due to continuity of symptomatology is not warranted. 38 C.F.R. § 3.303(b). In sum, the evidence weighs against a finding that the Veteran's bilateral knee disability is related to his military service. As such, service connection must be denied. ORDER Entitlement to service connection for bilateral knee osteoarthritis is denied. ____________________________________________ U.R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs