Citation Nr: 1617198 Decision Date: 04/29/16 Archive Date: 05/04/16 DOCKET NO. 10-16 342 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for a bilateral knee disability. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Daniel Bassett, Associate Counsel INTRODUCTION The Veteran served on active duty from June 2003 to June 2007. He also had service from January 2008 to August 2008. This case is before the Board of Veterans' Appeals (Board) on appeal from April and August 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In those rating decisions, the RO denied entitlement to service connection for a bilateral knee condition. The Veteran was scheduled for a Travel Board hearing in April 2011. In March 2011, correspondence reflects that the Veteran did not wish to appear at his scheduled hearing. Accordingly, the Board considers the Veteran's request for a hearing to be withdrawn and will proceed to adjudicate the case based on the evidence of record. See 38 C.F.R. § 20.704(d), (e) (2015). In December 2014, the Board remanded the case to the RO for further development and adjudicative action. FINDING OF FACT The weight of the evidence is against a finding that there is a nexus between the Veteran's in-service bilateral knee condition and his current bilateral knee condition. CONCLUSION OF LAW The criteria for service connection for a bilateral knee disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1154(b), 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159(b). The notice requirements were accomplished in a March 2009 letter that was provided before the April 2009 and August 2009 initial adjudications of the claim. The letter notified the Veteran of the information and evidence needed to substantiate his service connection claim. The letter also provided notice of the type of evidence necessary to establish a disability rating or effective date for the disability under consideration, pursuant to the holding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Accordingly, VA satisfied its duty to notify in accordance with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1). VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All relevant facts have been properly developed, and all available evidence necessary for equitable resolution of the issue has been obtained. The Veteran's service and post-service treatment records, VA examination reports, and lay statements have been obtained. VA has associated with the claims file records of the Veteran's VA outpatient treatment. He was also afforded VA examinations, one in June 2009 and one in March 2015. The first examination was inadequate because the VA examiner did not provide a nexus opinion. The March 2015 examination is adequate because the examiner discussed the Veteran's medical history, described his disabilities and associated symptoms in detail, and supported all conclusions with analyses based on objective testing and observations. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The agency of original jurisdiction (AOJ) substantially complied with the December 2014 remand orders and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 106 (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). II. Service Connection The Veteran seeks service connection for a bilateral knee disability. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, to establish service connection, there must be lay or medical evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a nexus between the in-service injury or disease and the current disability. See 38 U.S.C. § 1110; Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); 38 C.F.R. § 3.303 (2015). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a) (West 2014); 38 C.F.R. § 3.303(a) (2015); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 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). The credibility and weight of all the evidence, including the medical evidence, should be assessed to determine its probative value, and the evidence found to be persuasive or unpersuasive should be accounted for, and reasons should be provided for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). 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. It is the Board's responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. A review of the Veteran's service treatment records (STRs) reveals complaints of knee pain in 2003. August 2003 Recruit Smart Center records, from shortly after the Veteran entered service, reflect complaints from the Veteran of knee pain with no history of trauma or injury. He was diagnosed with mild patellofemoral syndrome and patellar tendonitis in August 2003. The Veteran complained of pain on exercise in his knees. However, these August 2003 complaints are the only complaints related to the knees reflected in the STRs. For instance, the Veteran complained of chest pain in October 2003, a sore throat in October 2003, a skin growth in February 2004, ankle pain in January 2006, groin pain in March 2006, back pain in May 2006, a shoulder injury in February 2007, and upper back and neck pain in March 2007. These records do not mention recurrent knee pain. A November 2005 post-deployment form reflects that the Veteran denied swollen, stiff, or painful joints, but noted back and muscle complaints. A March 2007 report of medical assessment is negative for knee complaints, but does note a back complaint. The Veteran's April 2007 report of medical history reflects that the Veteran denied knee trouble, although he reported other disabilities such as back problems and posttraumatic stress disorder (PTSD). The Veteran's first period of service ended in June 2007. In a July 2007 statement, the Veteran filed claims for service connection for seven disabilities, to include several musculoskeletal claims, but not for a knee disability. September 2007 private records reflect that the Veteran was in a motorcycle accident. The Veteran's providers cleaned and irrigated a right knee abrasion, but imaging was negative for a fracture or dislocation. In his November 2007 enlistment report of medical history, the Veteran denied knee trouble. The Veteran's served a second period of service from January 2008 to August 2008. In February 2009, the Veteran filed a claim for service connection for a bilateral knee disability. The Veteran was examined by VA in June 2009 pursuant to the February 2009 claim. The Veteran stated at this examination that both his knees would get sore from walking, bending, and lifting while in the artillery. He reported that he went to the corpsman a few times for stiffness and was given Motrin, but he had no direct injury to his knees in service, never went on sick call for his knees, and did not have a profile. The Veteran stated that he had occasional stiffness in his joints and back, but had no pain, weakness, instability, symptoms of inflammation, or symptoms of arthritis on examination. Imaging showed no evidence of recent fracture or dislocation. He did not have a disability upon clinical examination. The diagnosis was "normal bilateral knees." March 2010 VA clinical records reflect that the Veteran was prescribed Meloxicam for knee and ankle pain. The Veteran reported that "his knee pain has just happened over time and that his knees have 'tak(en) a beating' due to his time in the service and his current job in construction." The Veteran further stated that the right knee pain will "come and go" and that his left knee will lock up on him. The Veteran had a full range of motion. An April 9, 2010 VA clinical record reflects that the Veteran reported that he has been trying to use a cushion to kneel at work and that it helps a little. The assessment of the Veteran's knees is that he "appears to have patellofemoral syndrome." In a March 2011 statement, the Veteran reported that his in-service duties lead to significant stress on his knees. In an April 2011 statement, the Veteran's accredited representative stated that the Veteran has been diagnosed with bilateral patellofemoral syndrome chondromalacia patella and that a "doctor also opines that the military is the most likely cause of this." However, there is no corresponding doctor's opinion in the record. In fact, there is no competent medical evidence linking the Veteran's military service to any bilateral knee disorder. Treatment records from February 2013 indicate that the Veteran uses Tylenol and Tramadol for his knee pain as required while also continuing to regularly lift weights and do boxing type exercises. At another visit in February 2014, the Veteran reported that his knees were about the same and that he had started running. The Veteran was examined in March 2015. The VA examiner reviewed the Veteran's claims file, reviewed his e-folder, and examined the Veteran in person. The VA examiner noted diagnoses of bilateral patellofemoral pain syndrome in 2003 and 2010. The VA examiner noted mild tenderness over the medial and inferior aspects of the patella, pain causing functional loss, and crepitus in both knees. The VA examiner noted that the Veteran was seen for knee pain in basic training in 2003, was diagnosed with patellofemoral pain syndrome and patellar tendonitis, and did not indicate a knee condition on two reports of medical history in 2007. The VA examiner noted that the Veteran did not claim a bilateral knee condition during his initial compensation claim in 2007 and did not seek evaluation or treatment for knee pain until 2010. The VA examiner opined that the Veteran's knee condition is less likely as not related to his active duty service. Specifically, the VA examiner concluded that the Veteran's in-service knee condition was acute during basic training but resolved with time and treatment. The examiner noted that patellofemoral syndrome is commonly due to overuse and may certainly resolve with rest and appropriate therapy. The VA examiner opined that the Veteran developed knee pain again after service, but that pain is likely related to his post-service work in construction. The Veteran's post service work experience includes working as a pre-apprentice steamfitter on a construction project. The Board concludes that the Veteran's recent statements about experiencing pain and symptoms in both his knees since his military service are not persuasive. As noted in the Board's December 2014 remand, the more persuasive evidence of record is inconsistent with the Veteran's statements about continuity of symptoms in his knees. Specifically, the objective evidence shows the Veteran did not initially file a claim for service connection for a knee disorder, but he filed seven other service connection claims in 2007. Medical records dated after August 2003 until approximately 2010, to include those dated in November 2005, March 2007, April 2007, November 2007, and November 2008, do not contain findings or reports of the Veteran pertaining to his knees. In fact, the Veteran specifically denied knee pain on the November 2007 enlistment report of medical history. This objective evidence contradicts the Veteran's more recent statements that he has continued to have knee problems since his military service. See Curry v. Brown, 7 Vet. App. 59 (1994) (contemporaneous evidence can have greater probative value than inconsistent testimony provided by the claimant at a later date). As such, the Board finds the Veteran's recent statements that he has had continuous knee problems since service to be less probative and persuasive than the objective evidence reflecting a lack of continuity of symptomatology. The Veteran's representative submitted a statement in April 2016 arguing that the Board should remand the case for a new examination. The Veteran's representative argued that the March 2015 VA examination was inadequate because the Board instructed the VA examiner to ignore the Veteran's statements that he has experienced chronic pain since his first period of service. The representative argued that the Board did not provide an adequate explanation as to why the Veteran's statements are not credible. However, the Board notes that the credibility of statements is a legal determination, not a medical one. Thus, it is well within the jurisdiction of the Board to determine which evidence is credible or not credible, and to instruct the examiner to base his or her evaluation on only the credible evidence. As discussed above, the Board has fully explained why it has not found the Veteran's reports of continuing knee problems since service to be persuasive. Thus, the March 2015 VA opinion was based on consideration of the most persuasive evidence and is therefore adequate. The preponderance of the evidence is against the Veteran's claim. The STRs support the conclusion that the Veteran's August 2003 in-service knee injury resolved quickly after incurrence. The Veteran received additional medical treatment for many other conditions during his service, but not for a knee condition. The Veteran denied abnormality in his knees on multiple occasions, including in March 2007 and April 2007 records that reflect complaints of other disabilities. The first record of treatment for the Veteran's knee condition after August 2003 is from 2010, reflecting that his knees did not bother him again until after service. Moreover, the March 2015 VA examiner opined that the Veteran's current knee condition is less likely as not related to his active duty service. The March 2015 VA examiner reviewed the Veteran's file, noted the Veteran's knee injury in service, noted the lack of complaints of knee pain thereafter, and noted that the first evidence of treatment for knee pain after August 2003 was in 2010. The VA examiner opined that the Veteran's in-service injury was likely acute during basic training but resolved with time and treatment and pointed out that the Veteran's in-service condition may certainly resolve with rest and therapy. The VA examiner also identified another potential cause for the Veteran's current knee pain, his post-service work in construction. To the extent that the Veteran is relating his in-service job duties as the cause of any current knee disorder, he, as a layperson, is not qualified to render a medical opinion as to etiology or diagnosis. The Board finds that a preponderance of the evidence is against the Veteran's claim for entitlement to service connection for a bilateral knee disability. The STRs, treatment records, medical assessments, and June 2009 VA examination all support the March 2015 VA examiner's opinion that the Veteran's in-service knee pain was acute in 2003 and subsequently resolved, and that the Veteran's current knee disability is related to his current occupation, and not his active service. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim. Thus, the benefit-of-the-doubt rule is not applicable, and the claim must be denied. 38 U.S.C.A. § 5107 (West 2014); Gilbert, 1 Vet. App. at 55. ORDER Entitlement to service connection for a bilateral knee disability is denied. ____________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs