Citation Nr: 1602226 Decision Date: 01/20/16 Archive Date: 01/27/16 DOCKET NO. 13-07 033 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for a left knee disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Christopher M. Collins, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from January 13, 1988 to June 4, 1988, and from August 2005 to December 2006. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in October 2011 by a Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin In November 2015, the Veteran testified at a video conference hearing at the Milwaukee RO before the undersigned Veterans Law Judge (VLJ) sitting in Washington, DC. The Veteran's claims file is entirely electronic, using "Virtual VA" and the "Veterans Benefits Management Systems" (VBMS) databases, and a copy of the hearing transcript has been associated with this electronic file. FINDING OF FACT The competent medical evidence does not demonstrate that the Veteran's left knee disorder is attributable to the Veteran's active service or any incident of service. CONCLUSION OF LAW Service connection for left knee disorder is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, enlarged VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of any information, and any medical or lay evidence, not previously provided to VA that is necessary to substantiate the claim. Furthermore, as part of the notice, VA must indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will obtain. 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 v. Nicholson, 19 Vet. App. 473, 484 (2006). Pursuant to its obligations under the VCAA, VA is required to provide notice to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The RO provided the Veteran with pre-adjudication VCAA notice via letter dated in October 2010. He was notified of the evidence needed to substantiate his claim for service connection and that VA was responsible for obtaining military service records, records from VA medical centers, or records in the custody of other agencies, so long as he adequately identified those records and authorized VA to obtain those records. In addition, he was informed that he could submit records not in the custody of a federal agency on his own behalf or authorize VA to obtain such records, and that he was ultimately responsible for obtaining any requested records not in the custody of a Federal department or agency. Finally, the letter informed him of the criteria that VA utilizes when determining the disability rating and the effective date of awards. Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining that evidence which is necessary to substantiate his claim. The Board is cognizant that a portion of the Veteran's service treatment records (STRs) from his period of active duty has not been associated with the claims file. VA is required to obtain relevant documents held by any Federal department or agency that the Veteran adequately identifies and authorizes the Secretary to obtain. 38 U.S.C.A. § 5103A(c)(3); 38 C.F.R. § 3.159(e). In a February 2011 VA memorandum, the RO detailed its attempts to obtain the complete STRs for the time period from September 22, 1987 to October 31, 2008, ultimately concluding that complete STRs for that time period were unavailable for review. The February 2011 VA memorandum was signed by the Veteran Services Representative, thereby indicating that the Veteran was made aware of the inability to secure his complete STRS. The Board acknowledges that VA has a heightened duty to assist the Veteran in developing his claims since the records may have been lost, as well as an obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); O' Hare v. Derwinski, 1 Vet. App. 365 (1991). Case law does not, however, lower the legal standard for proving a claim for service connection but simply increases the Board's obligation to consider that evidence which may be favorable to the Veteran. Russo v. Brown, 9. Vet. 46, 51 (1996). Independent of its attempt to secure STRs for the Veteran, the RO has obtained treatment records from the Milwaukee VA medical center (VAMC). In addition, as discussed above, the Veteran testified at a hearing before the undersigned VLJ in November 2015. The Veteran has not identified any additionally available evidence for consideration. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (CAVC) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the Board hearing in November 2015, the undersigned indicated that the hearing would focus on the issue of entitlement to service connection for left knee disorder. The undersigned discussed what the Veteran needed to prove in order to be granted service connection, namely, a current diagnosis, an in-service occurrence, and a nexus between the in-service occurrence and the currently diagnosed disability. The Veteran was assisted at the hearing by a representative from Disabled American Veterans. The representative and the undersigned asked questions regarding the Veteran's history of symptoms associated with his left knee disorder. There was no pertinent evidence identified by the Veteran or his representative that might have been overlooked or may have substantiated the claim. Neither the Veteran nor his representative has suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). VA has conducted medical inquiry in the form of VA compensation examination to substantiate the claims of service connection. 38 U.S.C.A. § 5103A. The Veteran was afforded a VA examination in October 2011 for the purpose of determining the nature and etiology of the Veteran's left knee disorder. As the VA examiner considered the Veteran's history and provided a rationale for the conclusions reached, the Board finds that the opinion is adequate to decide the claim of entitlement to service connection for left knee disorder. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). In recognition of these efforts by the RO to obtain the known evidence that may substantiate the Veteran's claim, and it being clear that the Veteran has not indicated that there exists additional evidence to support his claim, the Board concludes that no further assistance is required to be provided to the Veteran in developing the facts pertinent to his claim in order to comply with the duty to assist. Legal Criteria VA may grant service connection for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In the case where a veteran who served for 90 days or more of active, continuous service and a chronic disease becomes manifest within one year of service, the disease shall be presumed to have been incurred in or aggravated by service even though there is no evidence of such disease during the period of service. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.307. Included within the purview of chronic diseases is arthritis. 38 C.F.R. § 3.309. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred during service, or, if the injury or disease preexisted such service, a showing that the injury or disease was aggravated therein. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a). Establishing that a purported injury or disease is connected to service, such that a veteran is entitled to potential benefits, requires competent and credible evidence of the following three things: (1) a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship, i.e. a nexus, between the disease or injury in service and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). With regards to a showing of chronic disease in service, it is necessary for the Veteran to demonstrate a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Where the disease identity is established, there is no requirement of evidentiary showing of continuity. However, continuity of symptomatology 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. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Notwithstanding the above, service connection may 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). The Board, as fact finder, must determine the probative value or weight of the admissible evidence. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed.Cir.2000) ("Fact-finding in veterans cases is to be done by the Board")). VA must give due consideration to all pertinent medical and lay evidence in a case where a veteran is seeking service connection. 38 U.S.C.A. § 1154(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 veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Factual Background and Analysis 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. Gonzales v. West, 218 F.3d 1378. 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but has no concurrent obligation to discuss each piece of evidence in rendering a decision). Accordingly, the Board will summarize the relevant evidence before it and focus its analysis on what that evidence illustrates about the Veteran's claim. An overview of the case indicates that the Veteran filed his application for VA disability compensation in September 2010. The Veteran contends that his currently diagnosed left knee medial meniscus tear with mild post-traumatic osteoarthritis is the result of residuals of knee stiffness caused by riding in a Humvee during active duty. The Veteran's service personnel records show that he served on active duty from January 13, 1988 to June 4, 1988, and from August 2005 to December 2006. The only relevant STRs that are available are the Veteran's September 1987 medical examination conducted upon entrance into active duty service and a post-deployment health assessment conducted in November 2006 after the Veteran returned from overseas duty in Kuwait. Both the September 1987 examination and the November 2006 health assessment are silent as to any complaint, findings, treatment, or diagnoses relating to a left knee disorder. In addition, on the November 2006 assessment the Veteran responded in the negative to the query of whether he currently had swollen, stiff, or painful joints or whether he developed such during deployment. Following service, the Veteran received regular care and treatment at the Milwaukee VAMC. Records dated from December 2006 to October 2010 are included in the claims file which document this care during that time period. A December 2006 examination report indicates that the Veteran had X-rays of his bilateral knees taken after he complained of bilateral knee stiffness with occasional pain. The examiner reported that the knee joints were adequately maintained and that there was no gross evidence of fracture or dislocation. A July 2009 primary care note from the Milwaukee VAMC indicates that the Veteran complained of left knee pain that started suddenly three months previous while running and which had persisted intermittently since. The Veteran did not report any recent trauma or twisting. The assessment of the reported was knee pain with a suspected meniscal injury. Following this note, the Veteran was scheduled for a physical exam of his knees in August 2009 at the Milwaukee VAMC, which revealed minimal narrowing of the medial joint compartment, tiny osteophytes of the tibia spines and patellar pole, and bony mineralization that was within normal limits. The reporter's assessment was minor osteoarthritis of both knees. In a September 2009 outpatient report from the Milwaukee VAMC, the Veteran again reported that he was experiencing left knee pain that had been occurring for the past 6 months "after he bent to extreme flexion and felt a pain in the medial aspect of his knee." The reporter noted that the Veteran had no significant specific traumatic incident to the knee. Furthermore, the reporter noted that the Veteran had a motorcycle accident in 1993 but that his left knee had not given him problems until recently. The reporter also stated that his knee did not hurt when he was resting and that the Veteran only experienced pain "[w]hen he attempts to run or do vigorous activity". An MRI revealed a possible vertical tear in the body of the medial meniscus and a mild sprain of the MCL. In an October 2009 outpatient report from the Milwaukee VAMC, the Veteran reported the same symptoms of left knee pain which started 8-10 months previously. He also stated that running aggravated his symptoms but that he could "walk on it all day without difficulty." In addition, the Veteran reported that he had surgery on his right knee a few years previously, and that the right knee brace he wore during that time made his symptoms of left knee pain worse so he discontinued use of the knee brace. The Veteran also reported that he had no prior problems with his left knee. The reporter's assessment was small joint effusion, tear of the medial meniscus, mild bone marrow edema at the corner of medial tibial plateau, favor post-traumatic over degenerative, small multiseptated ganglion cyst posterior to proximal tibiofibular articulation, minimal MCL sprain, and minor osteoarthritis of both knees. Outpatient reports from October 2009 to September 2010 from the Milwaukee VAMC indicate that the Veteran received continued treatment, including physical therapy, for his left knee disorder. In an October 2010 orthopedic surgery note from the Milwaukee VAMC, the Veteran for the first time reported that his left knee pain began after deployment "where he spent a lot of time in a Hummer with his knee against the sidewalls." The Veteran's diagnosis at this time remained the same. The Veteran was afforded a VA examination in October 2011 for the purpose of determining whether the Veteran's left knee condition was related to military service. The examiner reviewed the Veteran's medical history, and noted that the Veteran reported extreme flexion with immediate onset of pain in the medial aspect of his knee 6 months prior to the September 2009 outpatient report. The examiner also noted that the Veteran did not report any trauma to his left knee in the military but did report that he believed that riding in a Humvee during active duty caused his knee stiffness. After a physical exam and a review of the Veteran's claims file, the examiner opined that the Veteran's left knee disorder was "less likely than not related to his military service and more likely related to an injury documented to have occurred in early 2009." In support thereof, the examiner noted that the Veteran was first diagnosed with left knee medial meniscus tear and internal derangement following his documented extreme flexion injury in early 2009. Furthermore, the examiner noted that X-rays done shortly after the Veteran's military service (referring to the December 2006 examination at the Milwaukee VAMC) were normal and revealed no evidence of arthritis at that time. Finally, the examiner stated that the Veteran's "military service did not permanently aggravate the condition beyond its normal progression as the condition onset was post active duty." A VA medical examiner's opinion must be supported by sufficient evidence and cannot necessarily rely solely on the claim file alone. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303 (2008). A mere conclusory opinion is insufficient to allow the Board to make an informed decision as to the weight to assign to the opinion. Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007). The probative value of a medical opinion is also generally based on the scope of the examination or review, as well as the relative merits of the analytical findings; the probative weight of a medical opinion may be reduced if the physician fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). Here, the October 2011 VA examiner based his ultimate conclusion that the Veteran's left knee disorder was less likely than not related to riding in a Humvee during service on a thorough review of the claims file and a physical examination. The examiner provided a well-reasoned rationale that took into consideration the Veteran's history of complaints about left knee disorder and explained how the left knee disorder was more likely that not related to the early 2009 extreme flexion injury that occurred after service. Accordingly, the October 2011 VA examiner's opinion is highly probative of the issue of whether the Veteran is entitled to service connection for his left knee disorder. As mentioned previously, the Veteran was afforded an opportunity to testify at a video conference before the undersigned in November 2015. During the hearing, the Veteran testified that he believed his injury was the result of his left knee "riding against the...upper armored Humvee door" and that the disorder "seemed to progress over time" after he returned home in December 2006. Veteran's Hearing Transcript, 4. When asked as to whether he remembered the early 2009 injury documented in the outpatient reports from the Milwaukee VAMC, the Veteran replied that he did not remember any specific injury and asserted instead that he believed his disorder was the result of "something that occurred when [he] was overseas." Veteran's Hearing Transcript, 5. The Veteran then reported that he was treated for the left knee disorder at the Milwaukee VAMC through to some point in 2010, when he received a cortisone shot. Following that shot, the Veteran asserted that his left knee has improved significantly but that he avoids overusing his left knee (i.e. jogging or running) currently for concerns about aggravating it. Veteran's Hearing Transcript, 7. The Veteran also reported that he believed the documented injury in 2009 to reflect his complaint regarding the progression of his left knee pain and not a distinct injury. Veteran's Hearing Transcript, 6. After considering all of the relevant evidence of record, it is the Board's judgment that the preponderance of the evidence is against the Veteran's claim of service connection for left knee disorder. The one relevant STR available before the Board, the November 2006 post-deployment health assessment, indicates that the Veteran did not report any complaints relating to a left knee disorder. The Veteran asserts that his left knee disorder began in service, but he has presented no additional evidence in support of this assertion beyond his own lay testimony that he experienced knee stiffness as a result of his left knee striking the side of the Humvee door when he rode in a Humvee while serving in Kuwait. The Board acknowledges that the Veteran complained of stiff knees in a December 2006 outpatient report following service. However, an X-ray of the Veteran's knees at that time did not indicate anything related to the Veteran's current left knee disorder. The October 2011 examiner also noted that the X-rays in December 2006 were normal in support of his determination that the left knee disorder was more likely related to the early 2009 extreme flexion injury. The negative X-ray tends to show that the Veteran's knee stiffness was not medically significant. Accordingly, the Board finds that the Veteran cannot take advantage of the presumption of occurrence in service pursuant to 38 C.F.R. § 3.307(b), as the medical evidence of record demonstrates that the knee stiffness, if it is even related to the Veteran's current left knee disorder, was not manifest to a degree of at least 10 percent as necessary for the presumption. Of course, a Veteran, as a layperson, is competent to describe the symptoms of a left knee disorder, and the Board accepts the Veteran's testimony from the November 2015 hearing that he continues to experience symptoms of the left knee disorder for he seeks service connection. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The fact remains, however, that the Veteran explicitly denied experiencing any symptoms related to a left knee disorder on the one in-service record available to the Board. Furthermore, although the Veteran has provided a plausible explanation for how he believes his current knee disorder is related to an in-service injury (i.e. the repeated striking of his knee against the Humvee door), there is nothing in the record which indicates that he is competent enough through expertise or knowledge to conclude that his current left knee disorder is the result of repeatedly driving in a Humvee while in service. Jandreau v. Nicholson, 491 F.3d 1372 (Fed. Cir. 2007). Such a medical determination is made through the use of clinical evaluations by a medical professional with the specialized education, training, or experience to offer an opinion regarding the etiology of a disease. The Veteran's assertions regarding the connection of his left knee disorder to his riding in a Humvee while serving in Kuwait must be considered in light of the October 2011 examiner's opinion. The examiner opined that the Veteran's current left knee disorder, which the record reflects he began complaining about in July 2009, is more likely related to an extreme flexion injury documented in the Milwaukee VAMC outpatient reports included in the claims file. The Veteran asserted during the November 2015 hearing that he did not remember any such injury, and that he believed that the documented injury reflected his complaining of the progression of his left knee disorder. In considering the probative value of the Veteran's assertions regarding when his left knee disorder began and what was the cause of such, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board recognizes that the lack of contemporaneous medical does not, in and of itself, render lay evidence not credible, although it is a factor in the Board's analysis. Buchanan v. Nicholson, 451 F.3d 1331, 1337. Furthermore, although the Board cannot reject a statement merely because it was made by an interested party, the interest of the person who made the statement may affect the credibility of his testimony when considered in light of other factors. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991); accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . ."). The Board emphasizes the fact that although the Veteran complained of stiffness in his knees following discharge on the December 2006 report, the X-rays were normal. The Board also emphasizes that the Veteran did not make any mention of his knee striking the Humvee door during service for over a year while he was being treated at the Milwaukee VAMC for a left knee disorder in 2009 and into 2010, and only made mention of this theory of etiology after he brought his claim for service connection in September 2010. In fact, in October 2009, the Veteran indicated during an examination that he did not have any prior problems with his left knee. Taking into account that the Veteran denied the occurrence of any injury in early 2009, despite the fact that it was documented in outpatient records from that time, as well as the lack of supporting medical evidence from discharge to when he began complaining of his left knee in July 2009, the Board finds the examiner's opinion that the left knee disorder was more likely the result of the early 2009 extreme flexion injury rather than residuals of knee stiffness caused by riding in a Humvee while in service to be have more probative value than the Veteran's lay statements to the contrary. In light of the above, the Board finds that the preponderance of the evidence is against the Veteran's claim for entitlement to service connection for a left knee disorder on a direct basis under 38 C.F.R. § 3.303(a). Even though there is plausible lay evidence supporting a finding that the Veteran's left knee was injured by repeatedly riding in a Humvee while in service, and it is clear the Veteran has a current left knee disorder, there is no competent evidence which tends to support that the Veteran's current condition is the result of the knee injury he asserts he experienced in service. The Veteran may still be entitled to service connection for his left knee disorder if all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). However, in recognition of the absence of competent evidence tending to show a nexus between an event in service and the Veteran's current left knee disorder, the Board finds that the preponderance of the evidence weighs against a finding that the Veteran developed a left knee disorder in service or that his current left knee disorder is otherwise attributable to service. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection for a left knee disorder under 38 C.F.R. § 3.303(d) is denied, and as such the Veteran's left knee disorder claim in total must be denied. As the preponderance of the evidence is against the Veteran's claim of service connection for degenerative joint disease of the bilateral knees, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER The appeal seeking service connection for a left knee disorder is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs