Citation Nr: 1544058 Decision Date: 10/15/15 Archive Date: 10/21/15 DOCKET NO. 14-14 278 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for bilateral knee disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Chinyere Orie, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1976 to August 1980. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2012 decision of the Montgomery, Alabama Department of Veterans' Affairs (VA) Regional Office (RO), which, in relevant part, denied the Veteran's claim of service connection for a bilateral knee condition in both knees. FINDING OF FACT The Veteran's bilateral knee disability did not manifest in service and arthritis was not manifest within one year after separation from service and is unrelated to service. CONCLUSION OF LAW The Veteran's bilateral knee disability was not incurred in or aggravated by service, and arthritis is not presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (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 (West, 2014); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA applies to the instant claim. The duty to notify was satisfied in this case in the form of a letter, dated December 30, 2011 from the RO to the Veteran. VA has also fulfilled its duty to assist. VA obtained the Veteran's service treatment records, post-service VA and private treatment records and the Veteran's lay statements of argument. During the appeal period, in June 2012, VA provided the Veteran with a knee examination, and obtained an adequate medical opinion in conjunction with the Veteran's claim. Notably, the VA examiner indicated that he reviewed the Veteran's prior records in conjunction with performing the VA examination. In addition, the examination report reflects that the examiner was aware of the Veteran's pertinent medical history, recorded the Veteran's current complaints, conducted an appropriate examination, and rendered appropriate findings and diagnoses consistent with other evidence of record. The Veteran has identified no outstanding evidence that could be obtained to substantiate his claim, and the Board is also unaware of any such outstanding evidence. Given the above, no further action related to the duties to notify and assist is required in this case. Applicable Law and Analysis 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 service. 38 U.S.C.A. § 1131; 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). The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for arthritis, if the disability manifests to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of a chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish the chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b); See Walker v. Shinseki, 708 F. 3d 1331, 1338 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic per 38 C.F.R. § 3.309(a)). Service connection may also be granted for any disease diagnosed after discharge when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A veteran bears the evidentiary burden of establishing all elements of a service connection claim, including the nexus requirement. See Fagan v. Shinseki, 573 F.3d 1282, 1287 (2009); see also Walker, 708 F. 3d at 1334. In making its determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. See Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107(b)). The Veteran avers that his bilateral knee disability is directly related to service. In regards to a current disability, the Veteran was diagnosed with degenerative arthrosis in both knees. See June 2012 VA Examination Report. The record also indicates the Veteran sustained knee injuries and complained of knee pain during service. Service treatment records reveal the following: the 1976 Entrance Exam showed no pre-service injury to the Veteran's knees. A September 1976 entry showed a "direct blow" to the Veteran's right patella during basic training, but no report of residual injuries or problems. In August 1977, the Veteran complained of twisting his knee while playing football. Subsequently, in April 1978, the Veteran struck his left knee on the concrete during a fall. In September 1978, the Veteran complained of aching in both knees. A May 1980 separation exam showed that the Veteran suffered from a "grating patella." In his own separation report, the Veteran complained of recurrent knee pain. The record establishes that although chondromalacia patella was identified at separation, degenerative arthrosis was not noted during service and the Veteran did not have characteristic manifestations sufficient to identify an arthritic disease during service. In addition, there is no evidence in the record demonstrating that the Veteran developed arthritis to a compensable degree within one year after separation of service. The outcome of this case turns on whether there is a competent and credible link between the current degenerative arthrosis and service. For the reasons set out below, the Board finds that service connection is not warranted. A VA examination and nexus opinion was sought in June 2012. The examiner, a physician's assistant, noted that although the Veteran did suffer several instances of trauma while in service, the majority of that trauma was to the Veteran's patella. The examiner specified that the Veteran's current disability (degenerative arthrosis) was due to symmetrical bilateral degenerative joint disease. The examiner opined that such condition was due to usual aging, and not due to the "remote trauma" documented in the service treatment records. The Veteran submitted two letters from his private doctor, one dated January 2014 and the second dated March 2015, both of which the Board considered. In both letters, Dr. W.K.L. indicated that the Veteran injured his knees while in service, such injuries never healed, and the issues the Veteran suffers from today are arthritic symptoms from the in-service injuries. For reasons discussed below, the Board finds the VA examiner's opinion more probative than that of Dr. W.K.L. The probative value of a medical opinion primarily comes from its reasoning; threshold considerations are whether a person opining is suitably qualified and sufficiently informed. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, the most thoroughly reasoned opinion is that of the June 2012 VA examiner, who considered the documented knee injuries and complaints of knee pain in service, diagnosis and treatment during service, medical findings and the Veteran's history. After consideration of the pertinent facts, he explained his reasoning as to why there was a negative link between the degenerative arthrosis in both knees and the injuries sustained in service. He also provided a medical explanation as to the etiology of the Veteran's current degenerative arthrosis - namely, aging. The Board accordingly assigns the VA examiner's opinion high probative value. Contrarily, the opinion of the Veteran's private physician, Dr. W.K.L. is less probative. There is no indication in the letter that Dr. W.K.L. reviewed the case file, or in particular, the Veteran's service treatment records, which contained specific information as to the circumstances of and treatment for the Veteran's knee injuries in service. While there is no requirement that a private physician must read the case file to form a medical opinion, in this case, such review would have been particularly helpful in establishing the etiology of the Veteran's current condition. See Nieves-Rodriguez, 22 Vet. App. at 303-04. The VA examiner used the information contained in the file to distinguish between the in-service injury, and the current disability. The private physician did not specify how the Veteran's claimed condition is at least as likely as not caused by the injury suffered in service. The private physician's mere conclusion that the Veteran's current disability is derived from a service injury, without more, is not probative and does not assist the Board in making a decision. See Nieves-Rodriguez, 22 Vet. App. at 304 (medical opinion evidence is not "entitled to any weight in a service-connection or rating context if it contains only data and conclusions"). Dr. W.K.L. did not explain why the injuries suffered in service led to the Veteran's current condition, nor did he name the medical principles upon which he based his opinion. He also fails to address the VA examiner's opposing rationale and conclusion, which was part of the record at the time he provided his opinion to VA. In short, although the VA examiner is a physician's assistant, and his opinion opposes that of a medical doctor, the Board finds that the probative value of the specific, thoroughly reasoned opinion of the June 2012 VA examiner is of greater value than Dr. W.K.L.'s more general opinion as to the issue of etiology. The only remaining evidence is the Veteran's opinion. The Board has a duty to weigh the credibility and probative value of lay evidence against the remaining evidence of record. King v. Shineski, 700 F. 3d 1339, 1344 (Fed. Cir. 2012). Moreover, lay evidence may be competent and sufficient evidence of a diagnosis or nexus if (1) the particular condition at issue is the type of condition that is within the competence or common knowledge of a lay person, (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Davidson v. Shinseki, 581 F. 3d 1313, 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person. Jandreau, 492 F.3d at 1377. In this case, the record contains the Veteran's claims that: (1) he has been in pain since he was in service; and (2) his current condition is directly derived from his in service injuries. Such statements have been considered by the Board. The Veteran is certainly competent to attest to his own observable symptoms and experiences, including having experienced knee pain following his in-service injuries. See 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). Competency of evidence, however, differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter 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, 74 (1997). Although the Veteran reports to VA that his knee pain has been continuous since his separation from service in 1980, the Veteran failed to mention any such pain upon initial evaluation with VA in April 2008. See the Veteran's April 11, 2008 Primary Care Outpatient Note. At that time, only a prior history of emphysema, hypertension and hyperlipidemia was identified, and the Veteran was shown to be "in no distress." Subsequently, although the Veteran complained of knee pain at times in 2010, when specifically asked about the duration of his pain at a November 1, 2011 assessment, the Veteran simply answered, "months." The Board recognizes that the Veteran indicated on his original claim that he started receiving treatment for his knees in 1999; however, he has not submitted any records of such treatment, nor has he authorized VA to obtain them on his behalf. In light the Veteran's inconsistent reports of knee pain history, the Board finds the Veteran's assertions of continuity of symptoms since service to be not credible. Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (in determining whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of a veteran). The Board further finds that, due to the Veteran's inconsistencies, the Veteran has not sufficiently established continuity of symptomatology to satisfy the nexus requirement. Moreover, while the Veteran is competent to attest to his symptoms and experiences, he is not competent to diagnose the etiology of those symptoms. The Veteran's claim attributing his current disability to the injuries he suffered in service refers to an internal medical process, beyond any immediately observable cause-and-effect relationship, which courts have found to be beyond the competence of lay witnesses. Jandreau, 492 F. 3d at 1377, n. 4 (Fed. Cir. 2007) ("sometimes a layperson will be competent to identify the condition, where the condition is simple, for example, a broken leg, and sometimes not, for example, a form of cancer"). As such, the Veteran's statements in this regard are not competent. Alternatively, to the extent that they are, the Board finds that the probative value of the June 2012 VA examiner is of greater value than the Veteran's general assertions as to the etiology of his current disability. Furthermore, while the Veteran is competent to report what he has been told by Dr. W.L., the probative value of such lay evidence is no greater than the facts upon which it is based. As noted above, the opinion of Dr. W.L. is of little probative value; thus, the probative value of the Veteran's statements premised on Dr. W.L.'s opinion is also substantially outweighed by that of the June 2012 VA examiner's opinion as to etiology. Based on the Veteran's inconsistent reporting of his own medical history, coupled with the VA examiner's well-reasoned medical opinion suggesting that the Veteran's current bilateral knee disability is unrelated to his in-service injury, but rather due to age-related disability, the Board finds that the evidence of record is against a finding that the current knee disability was incurred or aggravated in service. Stated differently, during service, the Veteran was often seen for knee complaints. However, degenerative arthrosis was not "noted" during service or within one year of separation. Furthermore, the current findings are unrelated to the in-service manifestations. The benefit-of-the-doubt rule is not applicable because the evidence is not in relative equipoise. ORDER Service connection for a bilateral knee disability is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs