Citation Nr: 1421990 Decision Date: 05/15/14 Archive Date: 05/29/14 DOCKET NO. 13-12 421 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a left knee disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Megan C. Kral, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from February 1957 to January 1959 and from November 1961 to August 1962. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of the St. Louis, Missouri Department of Veterans Affairs (VA) Regional Office (RO). In the his April 2013 VA Form 9 (substantive appeal), the Veteran requested a hearing before the Board. In July 2013, he withdrew the request. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT A chronic left knee disability was not manifested in service; arthritis of the left knee was not manifested in the first year following the Veteran's discharge from active duty; and a current left knee disability is not shown to be related to the Veteran's service. CONCLUSION OF LAW Service connection for a left knee disability is not warranted. 38 U.S.C.A. 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA 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/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his claim prior to its initial adjudication. An October 2010 letter explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing, and informed him of disability rating and effective date criteria. He has had ample opportunity to respond/supplement the record, and has not alleged that notice was less than adequate. The Veteran's service treatment records (STRs) and available postservice treatment records (both VA and private) have been secured. The Veteran reported that he received treatment for his left knee disability from private providers, including Shands Hospital at the University of Florida, Alachua Hospital, and Dr. Shaw. An October 2011 response from Shands Hospital indicated that there were no records of the Veteran available; however, in April 2012, limited records of Dr. Shaw from Shands Hospital were received. A Report of General Contact notes Alachua Hospital was closed. The Veteran has not identified any available evidence that remains outstanding. The RO arranged for a VA examination in July 2012. The Board notes that the VA examination report contains sufficient probative medical evidence to be adequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007) . The Board finds that no further development of the evidentiary record is necessary. VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis Initially, the Board notes that it has reviewed all of the evidence in the Veteran's record with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. A disability may be service connected if shown to be of a chronic nature in service, or if not chronic, then seen in service with continuity of symptomatology demonstrated after discharge. 38 C.F.R. § 3.303(b). Disorders diagnosed after discharge may still be service connected if all the evidence establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain chronic disabilities (to include arthritis) may be service connected on a presumptive basis if manifested to a compensable degree within a specified period of time following discharge from active duty (one year for arthritis). 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. To substantiate a claim of service connection, there must be evidence of: A current disability; incurrence or aggravation of a disease or injury in service; and a nexus between the claimed disability and the disease or injury in service. See Shedden v. Principi, 381 F.3d 1163, 1166-1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran claims that he has a chronic left knee disability that was incurred in service, and required a total knee replacement in January 2000. He alleges that the disability was incurred in an injury sustained unloading a helicopter during service in 1958. [He has established service connection for a right knee disability as due to such injury.] The Veteran's available STRs show that in February 1958, was seen in an orthopedic clinic for a complaint of right knee pain; chonromalacia of the right patella was diagnosed. In June 1958, he was again seen for right knee pain. There was no mention of complaint, finding, treatment, or diagnosis pertaining to a left knee disability. On December 1958 examination, it was noted the Veteran had chondromalcia (which knee (or whether both) unspecified). In a November 1961 Report of Medical History, the Veteran reported that he believed he was in good health, except for almost constant pain in both knees. In February 1962, he was again seen for chonromalacia of the right patella; there was no mention of complaint, finding, treatment, or diagnosis pertaining to a left knee disability. In a June 1962 Report of Medical History for separation, the Veteran reported that he was in good health, except for a knee injury sustained in 1958. He noted that he had knee pain on standing for prolonged periods (which knee (or whether both) unspecified). On service separation examination there were no knee complaints; the examination was normal. The earliest postservice record of treatment for a knee disability is a December 2000 surgical record of a right total knee replacement. Records of the left total knee replacement are unavailable. It is not in dispute that the veteran underwent a left total knee replacement. On August 2010 examination to establish VA care, the Veteran reported complaints of back and neck pain, decreased vision, and decreased hearing acuity. The examination was silent for complaints pertaining to the knees. VA treatment records are silent for any complaints or findings regarding the left knee prior to April 2012, when the Veteran's wife reported that he fell in the summer of 2011 and that his left knee has been "messed up" ever since. A May 2012 treatment record notes that the Veteran complained of left knee pain, of approximately a year's duration. The diagnosis was: left knee arthralgia, status post total knee arthroplasy; degenerative changes; and pes anserine bursitis. On July 2012 VA examination, the Veteran reported that he injured his knees in service and that his knee problems progressed until he was treated by Dr. Shaw in 1999 and had bilateral total knee replacements in 2000. He reported that he did not see an orthopedic provider for knee pain until just before the total knee replacement surgeries. He stated that it was not until recently that his left knee became bothersome. Osteoarthritis of the knees, status post total knee arthroplasty was diagnosed. The examiner opined that the left knee disability was less likely than not caused by, or a result of, an event in service. The examiner explained that there was objective documentation of only a right knee disability and treatment in service and on separation. He noted that although there were subjective statements pertaining to "both" knees on 1961 periodic examination, there was no objective STR documentation of left knee evaluation, injury, condition, or treatment. He further noted that it was not until 2000 that osteoarthritis became problematic, and required total knee arthroplasy. Statements received in support of the Veteran's claim detail that both providers remembered the Veteran being injured at Fort Bragg and suffering from knee pain since. A chronic left knee disability was not diagnosed in service. While the Veteran reports that he has had continuous left knee pain since 1958 (when the alleged injury in service occurred), his assertions are not supported by the objective evidence in the record. Where contemporaneous records would be expected to provide support for his accounts, they do not. For example, even though the Veteran asserts he injured both knees in the same incident in service, his STRs only show treatment for one knee, the right one. Moreover, on July 2012 examination, the Veteran himself stated that he did not seek treatment for left knee pain until 1999, shortly before his left total knee replacement. Additionally, on physical examination in August 2010, when he began receiving VA treatment, he did not report any left knee complaints. Notably, the lengthy time interval between the Veteran's complaints in service and the initial postservice notation of the left knee disability for which service connection is sought (approximately 37 years) is, of itself, a factor weighing against a finding of continuity of left knee symptoms since service, and thus, against a finding of service connection. The lack of treatment during that interval, weighs against the credibility of accounts of continuous ongoing disabling symptoms since service. Accordingly, service connection for a left knee disability on the basis that such disability became manifest in service, and persisted, is not warranted. 38 C.F.R. § 3.303(b). Inasmuch as there is no evidence that arthritis of the left knee was manifested in the first year following the Veteran's separation from active duty, service connection for such disability on a presumptive basis (as a chronic disease under 38 U.S.C.A. §§ 1112, 1137) is not warranted. The Board further finds that the preponderance of the evidence is against a finding that the Veteran's left knee disability is somehow otherwise related to his service. The only medical evidence that directly addresses the matter of a nexus between the Veteran's current left knee disability and his service is the July 2012 VA examination report indicating that the Veteran's current left knee disability is unrelated to his service. The examiner noted the history of the disability and explained the rationale for the opinion, citing that there was no objective evidence of left knee evaluation, injury, condition, or treatment in service. The examiner noted the Veteran's subjective complaints, but found them inconsistent with the objective evidence. The examiner's opinion is probative evidence in this matter. Because there is no competent (medical opinion/treatise) evidence to the contrary, the Board finds the July 2013 opinion to be persuasive. The Board has considered both the witnesses' and Veteran's statements regarding the etiology of his left knee disability. However, in the absence of evidence of continuity of symptoms, their assertions that there is a nexus between his current left knee disability and an incident in service are not competent evidence. The matter of a nexus between current arthritis and a remote injury is one beyond the scope of lay observation, but is a complex medical question that requires medical knowledge/training (and perhaps diagnostic studies). See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The Veteran is a layperson and lacks the requisite expertise. He does not cite to supporting medical opinion or medical literature. In light of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran's claim of service connection for a left knee disability. Accordingly, the benefit-of-the-doubt rule does not apply; the appeal in this matter must be denied. See 38 U.S.C.A §5107; 38 C.F.R. § 3.102. ORDER Service connection for a left knee disability is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs