Citation Nr: 1604371	
Decision Date: 02/05/16    Archive Date: 02/11/16

DOCKET NO.  09-30 723	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

Entitlement to service connection for a right knee disability, to include degenerative arthritis.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

K. Kardian, Associate Counsel

INTRODUCTION

The Veteran served on active duty from June 1978 to June 1981.

This matter is before the Board of Veterans' Appeals (Board) on appeal from January 2008 and August 2008 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.

The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) in May 2011. A transcript of the hearing is associated with the claims files.

The Board remanded the issue on appeal for additional development most recently in May 2015. The directives having been substantially complied with, the matter again is before the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998).

The Board has reviewed the electronic records maintained in both Virtual VA and Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence.


FINDING OF FACT

A right knee disability, to include degenerative arthritis, manifested more than one year after separation, and is not shown to be causally or etiologically related to an in-service event, injury or disease. 


CONCLUSION OF LAW

A right knee disability, to include degenerative arthritis, was not incurred during active service, and may not be presumed to have been incurred during active service. 38 U.S.C.A. §§ 1101, 1110, 1113, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015).
REASONS AND BASES FOR FINDING AND CONCLUSION

I. Substantial Compliance with Prior Remand

The case was remanded multiple times in order to have the Veteran identify any outstanding medical records, to associate VA medical records, to attempt to obtain service treatment records, to provide notice to the Veteran of records that could not be obtained and to obtain an addendum medical opinion.  On remand, VA medical records were obtained and the Veteran was informed that he should identify any outstanding medical records by way of a November 2011 letter.  VA also attempted to obtain additional medical records from the National Personnel Records Center (NPRC) which responded in January 2012 and May 2013 that all available records had already been provided to VA.  It is noted that the Veteran's enlistment examination is of record.  In January 2012 and June 2012, the Winston Salem RO indicated that service treatment records were not found at the RO.  In May 2012, the Veteran was asked to identify the location of treatment in service.  Following his response, the NPRC was contacted for a copy of the records from the Landstuhl, Germany, facility.  NPRC responded in August 2014 that no records were located.  By way of June 2012, May 2013 and November 2014 letters, the Veteran was notified that service treatment records could not be located.  The June 2012 and May 2013 letters informed him that he could submit alternate sources of evidence.  In light of the responses from the NPRC and the RO that the records could not be located, the Board finds that additional attempts to obtain the records would be futile.  

In May 2015, the Board remanded the claim and directed the AOJ to ask the Veteran to provide or authorize the release of outstanding records pertaining to the treatment of his right knee from December 1995 at Wake Forest Baptist Medical Center, Winston-Salem, North Carolina. The AOJ sent the Veteran a letter in June 2015, requesting the same and notifying the Veteran of the unavailability of treatment records from Piedmont Orthopaedic Associates in accordance with 38 C.F.R. § 3.159(e). To date, the Veteran has not responded to the June 2015 letter. As a result, the AOJ was unable to obtain the outstanding private treatment records. In addition, the Board directed the AOJ obtain a VA addendum medical opinion to determine the etiology of the Veteran's right knee disability. The AOJ obtained an addendum medical opinion in June 2015, which provided the information requested by the Board.  

In light of the above development, the Board finds that there has been substantial compliance with the Board remands.

II. Veterans Claims Assistance Act of 2000 (VCAA)

VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claims. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015).

A. Duty to Notify

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, the evidence VA will obtain on the Veteran's behalf, and the evidence the Veteran 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, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

VA issued a VCAA letter in August 2007, prior to the initial unfavorable adjudication in January 2008. This letter advised the Veteran of what evidence was necessary to substantiate his claim, the evidence VA would obtain, the evidence the Veteran must provide, and how disability ratings and effective dates are determined. As the letter contained all of the necessary information listed above, the Board finds VA has met its duty to notify.

B. Duty to Assist

The duty to assist includes assisting the claimant in the procurement of relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The RO associated the Veteran's available service treatment records (STRs) with the claims file which consisted of an entrance examination. The Veteran testified he was hospitalized in or near Kaiserslautern, Germany at Lundstahl Army Hospital in December 1979, after injuring his knee playing basketball. See May 2011 hearing transcript. An inpatient records request was made to the National Personnel Records Center (NPRC) in November 2013. See January 2014 Request for Information. A negative response, as to inpatient treatment records at Lundstahl Army Hospital, was received from NPRC. Id. NPRC reported the Veteran's STRs were loaned to the Winston-Salem RO in 1988, however the RO does not have record of or access to the STRs. See February 2013 Request for Information. A formal finding was previously issued in May 2013, indicating a negative response and any further search for STRs would be futile. See May 2013 Memorandum. The Veteran was provided notice of VA's attempts to obtain inpatient treatment records and missing STRs in accordance with 38 C.F.R. § 3.159(e) in June 2012, May 2013 and November 2014. 

The Board acknowledges there are relevant private treatment records that have been identified but not obtained and associated with the claims file. The Veteran indicated receiving treatment at Wake Forest University Baptist Medical Center in December 1995. The Veteran signed an authorization and release of records in August 2014. See August 2014 Authorization and Consent to Release Information. However, communication from Wake Forest University Baptist Medical Center in November 2014, indicated the request lacked valid authorization. See November 2014 Memorandum. In a June 2015 letter, the AOJ asked the Veteran to submit or authorize the release of outstanding private treatment records, to include from the aforementioned provider. See June 2015 correspondence. The AOJ advised the Veteran that he may wish to obtain and send the information himself. However, to date, the Veteran has not responded. The Veteran was given adequate notice of VA's attempts to obtain these records and that it was his ultimate responsibility to submit these records. 38 C.F.R. § 3.159(e).  The duty to assist is not a one-way street. Wood. v. Derwinski, 1 Vet. App. 190, 193 (1991). Therefore, without the Veteran's participation, VA is unable to obtain the identified relevant private treatment records. No additional actions were available or required of the VA. 

In addition, the Veteran indicated treatment at Piedmont Orthopaedic Associates in 1997. The Veteran provided a signed release and VA requested these records in November 2014. A negative response was received from Piedmont Orthopaedic Associates indicating they could not locate records for the Veteran, and they did not have records prior to 2003. See November 2014 Memorandum. Further attempts to obtain these records would be futile in light of the negative response, and no records in existence prior to 2003. 38 C.F.R. § 3.159(c). In June 2015 correspondence, VA properly provided notice in accordance with 38 C.F.R. § 3.159(e). 

Treatment records from Durham VA have been associated with the claims file. The Veteran testified before the undersigned VLJ, that he no longer receives treatment through VA. See May 2011 hearing testimony. No other relevant records have been identified and are outstanding. As such, the Board finds VA has satisfied its duty to assist with the procurement of relevant records. 

The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. See 38 C.F.R. § 3.159(c)(4). In this case, the Veteran was provided with a VA examination in December 2011 and supplemental opinion in June 2015. The examination and opinion were adequate because the examiner considered and addressed the Veteran's contentions, reviewed the claims file in conjunction with the examination, conducted a thorough medical examination of the Veteran, and provided sufficient supporting rationale for the opinions. Based on the foregoing, the Board finds the examination report and opinion to be thorough, complete, and a sufficient basis upon which to reach a decision on the Veteran's claim for service connection for a right knee disability. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-05 (2008); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). No other relevant records have been identified and are outstanding. As such, the Board finds VA has provided an adequate medical examination, and obtained all relevant identified records, its duty to assist in this case is satisfied. 

With respect to the aforementioned May 2011 Board hearing, the Court of Appeals for Veterans Claims held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above 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, the VLJ noted the current appellate issue at the beginning of the hearing, asked questions to clarify the Veteran's contentions and suggested the submission of relevant evidence. The case was thereafter remanded to obtain additional evidence and for an addendum opinion. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing.

III. Service Connection

Generally, to establish service connection a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in-service. 38 C.F.R. § 3.303(d). 

Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, such as arthritis,  manifesting themselves to a certain degree within a certain time after service must have had their onset in-service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a).
 
If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. Continuity of symptomatology requires that the chronic disease have manifested in-service. 38 C.F.R. § 3.303(b). In-service manifestation means 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. Id.

VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C.A. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 

Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).

The Veteran contends he is entitled to service connection for a right knee disability. For the reasons provided below, the Board finds that service connection for a right knee disability is not warranted on a presumptive or direct basis.

The Veteran's right knee disability cannot be service connected on a presumptive basis as a chronic disease. 38 C.F.R. § § 3.307, 3.309. The Veteran has been diagnosed with degenerative arthritis, and is therefore eligible for presumptive service connection. 38 C.F.R. §§ 3.307, 3.309(a). However, the preponderance of the evidence is against finding that the Veteran's right knee disability manifested to a degree of 10 percent or more within one year of the Veteran's separation from service. 38 C.F.R. § 3.307 (a)(3). Post-service treatment records are silent for complaints of knee pain or diagnosis of a knee disability until 1996 when the Veteran had surgery, as a result of a motor vehicle accident and injuries associated with such in December 1995, far exceeding the one year presumptive period. May 1996 treatment records reflect that the Veteran denied having problems with his right knee until he was involved in the December 1995 motor vehicle accident. See May 1996 Greensboro Orthopaedic Center records. Further, in August 2007 treatment records, the Veteran reported right knee pain for the past twenty years, placing the onset of symptoms at 1987.  See August 2007 VA treatment record. The Veteran was diagnosed with arthritis based on x-ray imaging in December 2011. 38 C.F.R. § 4.71a, DC. 5003 (requiring x-ray finding for diagnosis of degenerative arthritis). Since the evidence, including the Veteran's reports that he did not have problems with the right knee until the motor vehicle accident, shows initial onset of knee manifestations many years after service, the Board finds that the Veteran's right knee disability did not manifest within the one year period after service.  Accordingly, service connection is not warranted on a presumptive basis. 38 C.F.R. §§ 3.307, 3.309(a).  

Next, the Veteran's right knee disability cannot be service-connected on the basis of continuity of symptomology. 38 C.F.R. § 3.303(b), 3.309; Walker, 708 F.3d 1331. Again, arthritis is a listed chronic disease and therefore service connection can be established via continuity of symptomatology. 38 C.F.R. §§ 3.303(b), 3.309(a); Walker, 708 F.3d 1331.  However, continuity of symptomatology has not been shown in this case. While the Veteran indicated he experienced knee pain in-service and since, and he is competent to identify symptoms, such assertions are not probative in light of conflicting evidence. The earliest indication of treatment for a right knee disability was in 1996, subsequent to a December 1995 motor vehicle accident which required surgery and rehabilitation of the Veteran's right knee.  Importantly, at that time, the Veteran denied having right knee problems prior to the accident. Moreover, in August 2007, he reported right knee symptoms only for the past 20 years and he was discharged from service in June 1981. In light of these significant inconsistencies, the Board finds that current statements that right knee symptoms began in service and continued thereafter are not credible. Thus, service connection based on continuity of symptomology is not warranted. 

Finally, service connection is not warranted on a direct basis. The medical evidence of record reflects the Veteran has been diagnosed with degenerative arthritis and therefore the first element of service connection (a current disability) has been met. 

Concerning the second element, the Veteran reported he injured his right knee during active military service. The Veteran testified before the undersigned VLJ, that he injured his knee playing basketball, in-service while stationed in Germany, in December 1979. See May 2011 hearing transcript. The Veteran reported he was hospitalized at Lundsthal Army Hospital in Germany. Id. As discussed above, the RO attempted to obtain the Veteran's inpatient treatment records and STRs but such resulted in a negative response. 

The Veteran is competent to report an injury incurred during active military service. The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). 

While the Veteran is competent to report he injured his right knee in-service and that he has had continuing symptoms, his statements are not credible. The Veteran testified in May 2011, before the undersigned VLJ, that he has had pain and swelling in his right knee since his injury in-service. See May 2011 hearing transcript.  However, prior to his May 2011 testimony, the Veteran reported he injured his knee post-service. In private treatment records from May 1996, the Veteran reported onset of pain in his right knee after his December 1995 motor vehicle accident, and he denied any problems with his right knee prior. See May 17, 1996 private treatment record. Further, in 2007 the Veteran reported having right knee pain on and off for 20 years, making onset in 1987. See August 7, 2007 VA treatment record. In the December 2011 VA examination the Veteran reported right knee pain for 10 years. See December 2011 VA Examination. In light of the Veteran's inconsistent statements and the evidence of record regarding onset of his right knee disability there is a lack of credible evidence of an in-service injury. As such there is no competent and credible evidence indicating an in-service, event, injury or disease occurred and the Board fails to find that an in-service event, injury or disease has been shown. 

Turning to the third element, the Veteran was provided with a VA examination in December 2011. The VA examiner diagnosed the Veteran with right  knee degenerative joint disease. The examiner found that it was less likely than not that the Veteran's current right knee disability began in or is related to his active military service. See December 2011 VA Examination. Rather, the examiner attributed the Veteran's present right knee disability to his involvement in a December 1995 motor vehicle accident, subsequent surgery and rehabilitation. The examiner's rationale was based on the absence of treatment showing an injury on active duty and thereafter and the Veteran's active lifestyle working and regularly playing sports without reports of right knee pain, from separation, in 1981, until his December 1995 motor vehicle accident. The examiner's opinion was well reasoned with sufficient supporting rationale, included clear conclusions, based on an accurate review of the claims file and involved a thorough medical examination of the Veteran. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As such the examination is of high probative value. Id.

A supplemental VA opinion was provided in June 2015. See June 2015 VA opinion. The examiner found that it was less likely than not that the Veteran's right knee disability had onset during service or was caused by the Veteran's active duty service. The examiner noted the inconsistencies in the record concerning the onset of right knee symptoms, including the Veteran's report in 1996 that he did not have a prior problem with the right knee. After considering the Veteran's current reports of a right knee injury in-service playing basketball and his earlier reports in treatment records of pain commencing after his motor vehicle accident, the examiner concluded that the current right knee disorder was more likely than not a direct result of the motor vehicle accident in 1995. The examiner's opinion was well reasoned with sufficient supporting rationale, included clear conclusions and supporting data. To have probative value, a medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The medical opinions are also consistent with the Board's finding that the Veteran's statements concerning an injury in service with continuing symptoms thereafter are not credible.

After consideration of all the evidence of record, the Board finds the preponderance of the evidence is against a finding of a nexus between the right knee disability and the Veteran's active duty service. VA and private treatment records associated with the claims file are silent for any indication that the Veteran's right knee disability is related to service. The Veteran testified in May 2011, before the undersigned VLJ, that he has had ongoing pain and swelling in his right knee since his injury in-service. In private treatment records from May 1996, the Veteran reported his onset of pain in his right knee was after the December 1995 motor vehicle accident, and he denied any problems with his right knee prior. See May 17, 1996 private treatment record. Further, in 2007 the Veteran reported he had been having right knee pain on and off for 20 years, making onset in 1987. See August 7, 2007 VA treatment record. Such inconsistent statements result in a finding that the Veteran's current statements that he had a knee injury in service with continuing symptoms are not credible.  Moreover, the competent and credible evidence of record does not support a finding of a causal connection between the Veteran's right knee disability and his active duty service. Thus, the third element has not been met, and direct service connection for a bilateral knee disability is not warranted. 38 C.F.R. § 3.303.

Although the Veteran has established a current disability, the preponderance of the evidence weighs against a finding that the Veteran's right knee disability is causally related to his service or manifested in-service or within an applicable presumptive period. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied.

						
ORDER

Entitlement to service connection for a right knee disability, to include degenerative arthritis, is denied. 



____________________________________________
S. S. TOTH
Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs