Citation Nr: 1613136 Decision Date: 03/31/16 Archive Date: 04/07/16 DOCKET NO. 14-18 655 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for a bilateral knee disability. ATTORNEY FOR THE BOARD Timothy A. Ralls, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1972 to August 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In his May 2014 substantive appeal, the appellant requested a hearing before the Board. The appellant was scheduled for a hearing at the Louisville RO on August 6, 2014. Notice of the hearing was mailed to the appellant on July 4, 2014. However, the appellant did not appear for his hearing. Therefore, as the appellant has not made any additional hearing requests, the Board finds that his hearing request has been withdrawn. See 38 C.F.R. § 20.704(e) (2015). This case was previously before the Board in September 2014 when it was remanded for further development. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran's bilateral knee disability had its onset during active service or is related to his active service and it is not shown to have been manifested to a compensable degree within one year after the Veteran's separation from service. CONCLUSION OF LAW The criteria for service connection for a bilateral knee disability disorder have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131 (West 2014); 38 C.F.R. § 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Appropriate notice was provided in March 2013, prior to the initial decision in this matter. The duty to assist has also been met and appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA has obtained service treatment records, requested more information regarding private treatment records, afforded the appellant an examination, obtained a medical opinion as to the etiology of the disability, and afforded the appellant an opportunity to give testimony before the Board. In a VA Form 21-4142, received in November 2013, the Veteran authorized the VA to obtain private treatment records from Health Care Humana in Louisville, Kentucky. In March 2014, the VA sent the Veteran a letter requesting the dates of treatment from Health Care Humana. The claims file does not reflect that the Veteran responded to the request. In September 2014, the Board remanded the claim in order obtain names, addresses, and approximate dates of private treatment; provide the Veteran a copy of his service treatment records; and schedule the Veteran for a VA medical examination in order to assess the nature and etiology of any knee condition found to be present. On September 23, 2014, notice was sent to the Veteran requesting that he provide the necessary authorizations for the release of any private treatment records related to his bilateral knee claim. Additionally, the Veteran was asked to identify names, addresses, and approximate dates of private treatment. The Veteran was afforded a VA medical examination in October 2014. The Veteran informed his VA medical examiner that he used to go to a clinic called "Health Care" and stated that it is currently out of business and this is the reason he can't get his private medical records. The Veteran also stated that he has not been to a VA for medical treatment. However, the Veteran did not respond to the VA request for authorization for the release of any private treatment records and more information related to those records. The duty to assist is not a one-way-street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). It is the responsibility of claimants to cooperate with VA. See Caffrey v. Brown, 6 Vet. App. 377, 383; Olson v. Principi, 3 Vet. App. 480, 483 (1992). In January 2015, the Veteran filed a request for a copy of all his medical records. In January 2016, the Board sent the Veteran a copy of all medical records associated with his claims file. Therefore, based on the foregoing actions, the Board finds that there has been substantial compliance with the Board's remand with regard to the issue of entitlement to service connection for a bilateral knee disability. See Dyment v. West, 1 Vet. App. 141 (1999) (noting that a remand is 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). Significantly, the appellant has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). In addition, certain chronic diseases, including arthritis, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Veteran seeks entitlement to service connection for a bilateral knee disability. The Veteran contends that he has a bilateral knee condition due to his active military service. Specifically, he reports that a motorcycle accident, various sports injuries, and the bending, squatting, and climbing required of his job all damaged his knees while he was in service and that he has been receiving treatment for his knee condition ever since discharge. On an enlistment report of medical history, dated June 1972, the Veteran noted no medical problems. The enlistment report of medical examination, conducted in June 1972, noted no abnormalities related to the Veteran's knees. A June 1973 service treatment record reveals that the Veteran sought treatment for injuries after a motorcycle accident. He complained of pain in his hip and back, and he had difficulty with right straight leg raises. He had multiple contusions, but X-rays of his lumbar spine, pelvis, and right hip noted no fractures. In September 1973, December 1973, and February 1974, the Veteran was seen for sports injuries to his thumb, ankle, and shoulder, respectively. A service treatment record, dated May 1976, reflected the Veteran was being seen for back pain. The Veteran also reported pain in his knee cap and that he had experienced the pain before, but treated it with heat packs. The Veteran stated he would wait for sick call in the morning to see a doctor. There were no further service treatment records related to the Veteran's claimed bilateral knee condition. A separation examination, conducted in August 1976, noted the Veteran's lower extremities were normal. In a reserve status report of medical history, dated February 1978, the Veteran noted he was presently in good health. There were no notations of a knee condition. A February 1978 report of medical examination noted no knee conditions. A reserve status enlistment report of medical history, dated October 1983, noted the Veteran had a history of broken bones. The Veteran's explanation was a self-inflicted gunshot wound in the right foot in May of 1980. The report of medical examination, conducted in October 1983, noted no abnormalities related to the Veteran's knees. An annual certificate of physical condition, dated October 1984, was signed by the Veteran. The Veteran checked the box that noted the Veteran had not had any injury, illness, or disease within the past 12 months which required hospitalization or caused absence from school or work for more than 3 consecutive days. Additionally, the Veteran checked the box that noted he did not have any physical defects which he believed may restrict his performance on active duty. Pursuant to the Board remand, the Veteran was afforded a VA knee and lower leg examination in October 2014. The examiner noted a current diagnosis of bilateral knee degenerative joint disease (DJD). Before joining the service, the Veteran stated that he had worked for Phillip Morris doing many different jobs which included work on an elevator, machine operator, clean up, and fork lift operator. The Veteran stated that his current knee condition was not attributable to a specific injury, but to playing basketball on the steel deck of an aircraft carrier and working on the flight deck. He indicated that his in-service job involved constant bending and stooping. The Veteran stated that he went back to Phillip Morris after service and did the same type of work. He retired in March 1999 and started driving a cab and delivering auto parts until a couple years ago. The Veteran believes he started getting his knees drained around 1977 or 1979. He thought it had been about 15 years since his last knee tap. The Veteran stated that the clinic in which he used to go is out of business and he is unable to get his private medical records. The Veteran does not go to the VA for treatment. The Veteran stated that he no longer does sports and does not recall being told what his diagnosis was at the time he got his knees drained. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that the Veteran went to sick call multiple times while in service and except for one time near the end of his service, the Veteran had no complaints regarding his knee. The examiner stated that the expectation is that if he could make it to sick call for his other problems, he would have gone for his knees. There is no evidence he went back for the knee or had any further problems with it on active duty. The examiner reviewed medical records associated with the motor vehicle accident and there was no evidence in those records of a knee injury. Additionally, the examiner noted that at the end of his time in service, he was given a medical examination and was listed as having a normal lower extremity exam. The examiner stated that this is affirmative evidence that he did not have a chronic knee disability during service. Regarding whether the Veteran's claimed condition became chronic after service, the examiner noted that the Veteran's service treatment record reflected a complaint of pain behind the knee cap in May 7, 1976, with no diagnosis noted. The note also did not specify whether it was the left or right knee. The notation reflected that the Veteran was supposed to come back the next day to see a doctor, but there was no record of a return visit. The next notation is seven days later for an unrelated matter and the examiner notes that the Veteran would have been able to get to sick call if his knee were still bothering him. The examiner noted that the Veteran had another examination about a year and a half after leaving service in February 1978, in which the Veteran specifically denied arthritis, rheumatism or bursitis, and also specifically denied bone, joint or other deformity, as well as "trick" or locked knee. Question 20 on the February 1978 examination asked, whether the Veteran had any illness or injury other than those already noted and the Veteran answered no. The examiner noted "unremarkable history" and lower extremity exam was normal. The VA examiner notes that the Veteran signed the history form acknowledging that he reviewed the form and that it was true and complete to the best of his knowledge. The VA examiner opined that based on his signed form, the Veteran was doing fine after service as regards his knees and this argues against an acute knee condition that became chronic after leaving service. That would indicate that the Veteran had onset of symptoms sometime after February 1978 which would be greater than one year after separation from service. The examiner stated that there was no medical nexus between the Veteran's service as a young man and his current condition. Compared with his four years of service, his nearly thirty years of factory work was the more likely cause of his knee problems. The Board finds that entitlement to service connection for a bilateral knee condition is not warranted. The Board acknowledges that the Veteran has been diagnosed with bilateral knee DJD, however, the preponderance of the evidence is against a finding that the Veteran's bilateral knee condition is related to the Veteran's service. Review of the service treatment records reflects only one instance in May of 1976 where the Veteran complained of knee pain. The records pertaining to the motorcycle accident and sports injuries do not reflect any injury or complaint related to the Veteran's knees. The examinations on separation from service do not report any complaints or diagnosis for any knee disorder. Reserve service medical history reports and reserve service medical examinations conducted in February 1978 and October 1983, note no knee conditions. The Veteran signed an annual certification in October 1984, which stated he did not have any physical defects which he believed may restrict his performance on active duty. The VA medical examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that there were no complaints regarding the Veteran's knees after the May 1976 report of pain in his knee cap. The examiner also noted that the records during reserve service indicate the Veteran was not suffering from a knee condition. The examiner noted that the multiple service treatment records regarding injuries reflect that the Veteran would have gone to see a doctor if his knees were still bothering him. The examiner thought the Veteran's thirty years of factory work was the more likely cause of his knee problems. The Board notes that the Veteran has contended that he had continuous knee problems since service. The Board finds, however, that these assertions are outweighed by the objective evidence of record. There were no complaints or diagnoses of a knee disorder at separation from active duty or at subsequent reserve service medical examinations in February 1978 and October 1983. In addition, the Veteran signed an annual certification in October 1984, which stated he did not have any physical defects which he believed may restrict his performance on active duty. The Board places greater probative weight on the clinical records dated at separation and in 1978, 1983 and 1984 which do not reference any knee complaints. See Curry v. Brown, 7 Vet. App. 59 (1994). The Veteran's allegations of continuity of symptomatology are outweighed by the clinical records and the report of the separation examination. As the preponderance of the evidence is against a finding that the Veteran's bilateral knee disability had its onset during active service or is related to his active service and it is not shown to have been manifested to a compensable degree within one year after the Veteran's separation from service, service connection for a bilateral knee disability is denied. ORDER Service connection for a bilateral knee disability is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs