Citation Nr: 1507110 Decision Date: 02/18/15 Archive Date: 02/26/15 DOCKET NO. 09-15 002 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a right knee disorder. 2. Entitlement to service connection for a left knee disorder. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Zenzano, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1979 to July 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. This case was previously remanded by the Board in July 2012, at which time the issues were characterized as applications to reopen previously denied claims for service connection for right and left knee disorders. In September 2014, the Board reopened the claims and remanded the issues for additional development. The case has since been returned to the Board for final appellate review. This appeal was processed using the Veteran Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. FINDINGS OF FACT 1. A right knee disorder is not shown to be causally or etiologically related to any disease, injury, or incident in service, and arthritis did not manifest within one year of the Veteran's discharge from service. 2. A left knee disorder is not shown to be causally or etiologically related to any disease, injury, or incident in service, and arthritis did not manifest within one year of the Veteran's discharge from service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disorder have not been met. 38 U.S.C.A. §§ 1101, 1112, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2014). 2. The criteria for service connection for a left knee disorder have not been met. 38 U.S.C.A. §§ 1101, 1112, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). Proper VCAA notice 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; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, May 2006, August 2006, and March 2007 letters, sent prior to the initial unfavorable decision issued in May 2007, and an August 2012 letter, advised the Veteran of the evidence and information necessary to substantiate his service connection claims as well as his and VA's responsibilities in obtaining such evidence and information. The letters also informed the Veteran of the evidence and information necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. While the August 2012 letter issued after the initial May 2007 rating decision, the United States Court of Appeals for the Federal Circuit has held that VA could cure such a timing problem by readjudicating the Veteran's claim following a compliant VCAA notification letter. Mayfield v. Nicholson, 444 F. 3d 1328, 1333-34 (Fed. Cir. 2006). The Court clarified that the issuance of a statement of the case could constitute a readjudication of the Veteran's claim. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). In the instant case, after the August 2012 letter was issued, the Veteran's claims were readjudicated in the June 2013 and September 2014 supplemental statements of the case. Therefore, any defect with respect to the timing of the VCAA notice has been cured. Relevant to the duty to assist, the Veteran's service treatment records, VA outpatient treatment records, private treatment records, and records associated with his award of Social Security Administration (SSA) disability benefits have been obtained. The Veteran has not identified any additional, existing evidence that could be obtained to substantiate the claims. Additionally, the Veteran was afforded a VA examination in May 2014, pursuant to the Board's April 2014 remand, in order to determine the nature and etiology of his claimed bilateral knee disorder. The Board finds that this VA examination and opinion contained therein is adequate to decide the issues on appeal. As discussed in detail below, the Board notes that the examiner mistook a periodic in-service examination, which was negative for any knee complaints, for the separation examination. However, as the examiner based his opinion on the totality of the evidence, the Board does not find such error to have materially affected the outcome of his decision. Indeed, apart from the two incidences of in-service treatment for his knees, which were noted by the examiner, the Veteran's service treatment records are silent on the matter. Moreover, the examination was predicated on an interview with the Veteran as well as a physical examination and, further, the examiner noted review of the record, to include the Veteran's service and post-service treatment records, to include private opinions offered in support of his claims. The ultimate opinion proffered considered the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to, the records reviewed. The examiner, to the extent possible, offered a conclusion with supporting data as well as a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Further, the Veteran has not in any way challenged the adequacy of the VA examination report. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011), (in the absence of a challenge to the adequacy of the examination, the Board is not required to explicitly explain why each medical opinion is adequate). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination and opinion regarding the issues decided herein has been met. As indicated previously, the Board remanded the issues in July 2012 and April 2014 for additional development. In this regard, in July 2012, the AOJ was directed to provide additional VCAA notice and to obtain SSA and any identified treatment records, to include VA records. Thereafter, the Veteran was provided with VCAA notice in an August 2012 letter, and SSA, private, and VA treatment records were obtained. In April 2014, the claims were remanded in order to obtain any outstanding treatment records, to include updated VA treatment records, and to provide a VA examination so as to determine the nature and etiology of the Veteran's bilateral knee disorder. Thereafter, updated VA treatment records were obtained in May 2014 and, as discussed in the preceding paragraph, he underwent a VA examination in May 2014, at which time the examiner considered the Veteran's service treatment records and private opinions as directed in the April 2014 remand. Therefore, the Board finds that the AOJ has substantially complied with the prior remand directives such that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claims. II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran claims his left and right knee disorders are due to injuries sustained in service when ammunition fell on his legs, and that he has had continuity of bilateral knee symptomatology since service separation. Service treatment records show that, in January 1981, the Veteran complained of his right knee hurting "for a long time." At that time, he denied any trauma to his knee, and was treated for "possible strained muscle" of the right knee. During a January 1983 examination, the Veteran's knees were found clinically normal and he denied a history of trick or locked knees. In April 1983, the Veteran complained of an injury of the left leg that had occurred two hours previously, resulting in pain in the back of the leg behind the knee when he walked or bended his knee. The Veteran was diagnosed with a possible pulled muscle. The remainder of the Veteran's service treatment records are silent for any knee-related complaints. Post-service, the Veteran filed his claim for a bilateral knee disorder in August 2003. Prior to that, an February 1997 examination conducted in connection with the Veteran's SSA disability claim shows that he had full range of motion in all major joints and no joint swelling, deformity or tenderness. The first medical evidence of knee complaints are documented in April 2004, in the form of a statement from the Veteran's private physician, Dr. Stacks, indicating that the Veteran had been treated by him for his chronic right knee pain over the past several months and that his in-service treatment for knee strain "may be" where the beginnings of his right lower extremity pain originated. There was no diagnosis relating the right knee, and no mention of the left knee. VA treatment records first show reports of osteoarthritis of one or both knees in October 2004, denoting "OA-pt with back and knee disease." However, X-rays conducted in connection with a December 2004 VA examiner were negative and the Veteran was diagnosed with "injury" of the knees. The Veteran told the examiner that, during service in 1981, ammunition fell on his knees, injuring them. The examiner accepted the Veteran's report of his in-service injury to his knees, but noted that speculation made it impossible to be absolutely sure whether the current knee injuries were the same injuries that he had in service. A June 2006 note from the Veteran's private physician, Dr. Schaeffer, states that he was treating the Veteran for osteoarthritis of the knees and that the Veteran reported he has had these problems since service. The Veteran submitted additional statements from Dr. Schaeffer, dated in 2010, 2011, and 2012 indicating his current knee diagnoses relate back to a single in-service knee injury, without providing a rationale for such conclusions. The Veteran was afforded a VA examination in June 2013. At such time, the examiner diagnosed the Veteran with left patellofemoral syndrome, right medial meniscus tear, and right anterior cruciate ligament tear. With regard to etiology, the examiner only noted in-service right knee treatment, with no evidence of an in-service left knee injury. The examiner found it unlikely that any of the Veteran's current conditions were related to the one-time treatment in the military. The Veteran underwent another VA examination in May 2014. He was again diagnosed with left patellofemoral syndrome, right medial meniscus tear, and right anterior cruciate ligament tear. At such time, the Veteran reported that ammunition fell on his right knee in 1982, and that he doesn't recall an injury to the left knee. He also said he was seen on multiple occasions during service. Following an interview with the Veteran, a review of his service and post-service treatment records, to include the aforementioned positive opinions, and a physical examination, the examiner opined that the Veteran's knee conditions were not caused by or a result of his military service. In this regard, he noted that the service treatment records showed one visit for each knee and that there were no significant findings. He also stated that the report of history at separation was negative for knee complaints, supporting the lack of chronicity during service. The examiner found that the conditions treated in service were clearly minor and self-limiting based upon the evidence. He noted that the Veteran's knee conditions did not manifest until many years subsequent to service, and indicated that the favorable private opinions were based only on a history provided by the Veteran and appeared to be speculative. After a careful review, the Board finds that service connection for the Veteran's bilateral knee disorder is not warranted. As an initial matter, the Board notes that there is no indication that knee arthritis manifested during service or during the first post-service year, or for more than two decades thereafter. At the earliest, knee arthritis was initially documented in 2004. A chronic disease need not be diagnosed during the presumptive period under 38 C.F.R. § 3.307(c), but if not, there must then be shown by acceptable medical or lay evidence, characteristic manifestations of the disease to the required degree, followed without unreasonable time lapse by definite diagnosis. Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991). Here, the Veteran has provided lay contentions to the effect of chronicity and continuity of knee symptoms in and since service; however, the Board finds such statements to be not credible as they are inconsistent with the contemporaneous medical evidence. In this regard, the Board notes that service treatment records show one-time treatment for each knee, with unremarkable findings and no follow-up care. Significantly, the Veteran has variously reported an injury to one or both of his knees in 1981 or 1982 due to ammunition falling on his legs. However, his service treatment records denote no such injury to his knees as he has described in connection with his claim. Rather, he denied any trauma to his right knee when treated in January 1981. Additionally, a February 1997 examination, conducted in connection with an SSA claim, showed full range of motion in all major joints, no joint swelling, deformity or tenderness. The Board notes that the Veteran filed his claim for a bilateral knee disorder in August 2003, after which time the first medical documentation of bilateral knee treatment appeared in 2004. In essence, in light of more probative and credible evidence to the contrary, in the form of in- and post-service clinical records, the Veteran's assertions regarding continuity of symptomatology are not found credible, and service connection on the basis of a "chronic" disease listed under 38 C.F.R. § 3.309(a) may not be granted. See Walker, supra. Furthermore, with respect to the theory of direct service incurrence, the most probative evidence of record does not establish that the Veteran currently has knee disorders that are etiologically or causally associated with service. In this regard, the Board notes that all of the medical opinions of record, save the May 2014 VA opinion, are inadequate to decide the claims. Specifically, the December 2004 VA examiner essentially stated he could not provide an opinion without resorting to mere speculation, and the June 2013 VA examiner, who provided a negative opinion, incorrectly stated there was no evidence of in-service treatment for the left knee. Therefore, as the December 2004 VA examiner's opinion was essentially a non-opinion and the June 2013 VA examiner offered an opinion based on an inaccurate factual premise, such are accorded no probative weight. Furthermore, the private opinions of record are not supported by a rationale and were based on a medical history supplied by the Veteran that, as previously discussed, has been determined to be not credible. See Nieves-Rodriguez, supra; Stefl, supra; see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005); Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (reliance on Veteran's statement renders a medical report incredible only if the Board rejects the statement of the Veteran). Therefore, such private opinions are accorded no probative weight. In contrast, the Board accords great probative weight to the May 2014 VA examiner's opinion. In this regard, the May 2014 VA examiner found that the knee conditions were less likely than not incurred in or caused by service, noting that the Veteran was only seen one-time each for his knees during service, and that his current knee conditions did not manifest until several years after service. The Board notes that the examiner mistook the January 1983 examination as the separation examination. However, the examiner did note both the January 1981 and April 1983 treatment for right and left knee pain, respectively. The remainder of the Veteran's service treatment records are negative for any complaints relating to the knees after April 1983, thus supporting his conclusion of a lack of chronicity. Furthermore, he also based his conclusion on the fact that there were no significant findings during the two in-service occasions that the Veteran was treated for his knees, and also, significantly, that the Veteran's knee conditions did not manifest until many years subsequent to service. In reaching his conclusion, the May 2014 VA examiner considered the Veteran's lay and clinical history, to include service and post-service records and examination results, as well as on specialized clinical experience and knowledge. Accordingly, this evidence is considered both competent and highly probative. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Therefore, Board finds no adequate basis to reject this competent medical opinion based on a lack of credibility or probative value. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Evans v. West, 12 Vet. App. 22, 26 (1998). In addition, the Veteran has not provided any competent medical evidence or credible lay reports to rebut this opinion or otherwise diminish its probative weight. See Wray v. Brown, 7 Vet. App. 488, 492-93 (1995). The Veteran is competent, even as a layperson, to describe in-service injuries and having experienced knee symptoms since his discharge from service, i.e., a continuity of symptomatology, although such accounts are found to lack substantiation in this case. 38 C.F.R. § 3.303(b); see also Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) (indicating the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence, and that where lay evidence provided is credible and competent, so ultimately probative, the absence of contemporaneous medical documentation such as actual treatment records does not preclude further evaluation as to the etiology of the claimed disorder). However, he is not capable as a layperson in offering an opinion regarding the etiology of his claimed knee disorders. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. The question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's own opinion is non-probative evidence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). The weight of the evidence confirmed by medical findings shows that the Veteran's claimed knee disorders were not present during military service, and are not shown by the probative evidence to be etiologically or causally related to his military service, or to have been manifested by arthritis to a compensable degree within one year from his service discharge. For the foregoing reasons, the Board finds that the service connection claims for right and left knee disorders must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. 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, supra. ORDER Service connection for a right knee disorder is denied. Service connection for a left knee disorder is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs