Citation Nr: 1624860 Decision Date: 06/21/16 Archive Date: 07/11/16 DOCKET NO. 11-15 434 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a bilateral knee disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD K. Conner, Counsel INTRODUCTION The appellant served on active duty from October 1977 to September 1980. This matter came to the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The appellant's claim was subsequently transferred to the jurisdiction of the RO in Montgomery, Alabama. In December 2012, the appellant testified at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. In October 2013, the Board remanded the matter for additional evidentiary development. A review of the record shows that the RO has complied with all remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). Neither the appellant nor her representative has argued otherwise. FINDINGS OF FACT A bilateral knee disorder, including arthritis, did not manifest in service or to a compensable degree within one year of separation and is not otherwise related to the appellant's military service. CONCLUSION OF LAW A bilateral knee disorder was not incurred in active service, nor may it be presumed to have been incurred in active service. 38 U.S.C.A. §§ 1112, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As a preliminary matter, the Board finds that no further notice or development action is necessary in order to satisfy VA's duties to the appellant under the VCAA. In a February 2010 letter issued prior to the initial decision on the claim, VA notified the appellant of the information and evidence needed to substantiate and complete her claim and of what part of that evidence she was to provide and what part VA would attempt to obtain for her. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2015). The letter also included the additional notification requirements imposed in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). With respect to VA's duty to assist, the record shows that VA has undertaken all necessary development action. 38 U.S.C.A. § 5103A (West 2015); 38 C.F.R. § 3.159 (2015). Neither the appellant nor her representative has argued otherwise. In that regard, the record shows that VA has obtained the appellant's complete service treatment and personnel records, as well as all available and relevant post-service clinical records which the appellant has identified and authorized VA to obtain. 38 U.S.C.A. § 5103A(c) (West 2014); 38 C.F.R. § 3.159(c)(2), (3) (2015). In that regard, the Board notes that, at her January 2013 hearing, the appellant claimed that she had received treatment for her knees on multiple occasions during active duty and had been put on a profile on at least two occasions. In light of her testimony and pursuant to the Board's remand instructions, the Agency of Original Jurisdiction (AOJ) contacted the service department and requested a search of additional records pertaining to the appellant. In November 2013, VA received additional service treatment and personnel records which the service department described as all available records. As described below, these records are negative for any complaints, treatment, or diagnosis pertaining to the knees. Based on the unambiguous response from the service department, the Board finds that further requests for records of this claimed treatment would be futile. 38 C.F.R. § 3.159(c)(2) (2015); see also Counts v. Brown, 6 Vet. App. 473, 477 (1994) (noting that "VA has no duty to seek to obtain that which does not exist.") Moreover, at her hearing, the appellant testified that she has experienced continuing knee problems since service for which she was treated, including shortly after her separation. Additionally, she stated that at least three of her physicians had told her that her bilateral knee disability may be related to strenuous physical training in the Army. At the hearing and in its October 2013 remand, the Board advised the appellant that the record on appeal contained no private treatment records dated earlier than 1997, nor did the clinical evidence of record include any indication of an association between a current knee disability and her active service. She was advised that it would be to her benefit to submit or specifically identify records of treatment prior to 1997 and to obtain statements from her physicians memorializing their purported opinions regarding the relationship between her current knee disability and her military service. The Board observes that no such records or opinions have been received or specifically identified by the appellant. Absent the necessary information and authorization from the appellant, the Board finds that no additional development efforts are required. See 38 C F R § 3 159(c)(2),(3) (2015). Pursuant to the Board's October 2013 remand directives, the appellant was also afforded a VA medical examinations in connection with her claim. 38 C.F.R. § 3.159(c) (4) (2015). After reviewing the record, the Board finds that the examination reports obtained are adequate. Neither the appellant nor her representative has argued otherwise. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that in the absence of a challenge, the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). The examinations were conducted by a qualified medical professional. Moreover, the examiner's opinions are thorough and were predicated on both an examination of the appellant as well as full reading of all available records. The examiner also provided a rationale for the opinions rendered. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4) (2013). The appellant was also provided an opportunity to testify at a hearing before the undersigned Veterans Law Judge. During that hearing, the undersigned Veterans Law Judge identified the issue on appeal and asked questions about the onset and development of the knee disorders discussed in the decision below. The hearing focused on the elements necessary to substantiate the claim, and the appellant, through her testimony and questioning by her representative, demonstrated her actual knowledge of the elements necessary to substantiate her claim. Additionally, as set forth above, the undersigned advised the appellant of additional evidence she should submit or identify in support of her claim. As such, the Board finds that VA complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). For the reasons set forth above, and given the facts of this case, the Board finds that no further notification or development action is necessary on the issue now being decided. Background The appellant's service treatment records are entirely negative for complaints, treatment, or diagnosis pertaining to either knee. She did not undergo a separation examination. In February 2010, the appellant submitted an original application for VA compensation benefits, seeking service connection for multiple disabilities, including a bilateral knee disorder which she reported had begun in 1980. In support of her claim, the RO obtained private clinical records identified by the appellant. These records include private treatment records dated from February 1997 to September 2006. In pertinent part, those records show that, in July 1997, the appellant complained of pain in her right knee which had started gradually over the last three weeks after her job changed and became a little more strenuous. She did not report a prior history, including any in-service injury. The impression was tendinitis of the right knee. In May 2002, the appellant again complained of right knee pain. X-ray studies of the right knee showed mild degenerative joint disease. In December 2005, the appellant sought treatment for both right and left knee pain, and x-ray studies showed bilateral osteoarthritis. In February 2008, the appellant complained of bilateral knee pain, and the impression was osteoarthritis, bursitis bilaterally. In September 2008, she complained of left knee pain, and the impression was left knee osteoarthritis. The records obtained by the RO also included clinical records from another private facility dated from October 2008 to January 2009. In pertinent part, those records show that, in October 2008, the appellant sought treatment for left knee and foot pain which she indicated had been present for the past year year. She denied having a history of any injury. X-ray studies showed moderate degenerative arthritis, and the diagnosis was pes anserine bursitis of the left knee. Later that month, the appellant reported a recurrence of right knee pain. The RO also obtained VA clinical records in support of the appellant's claim. In pertinent part, those records dated from November 2009 to January 2010 show that the appellant had a new patient visit to the primary care clinic in November 2009. At that time, she complained of bilateral knee pain. The examiner noted that she ascribed her problem to service duty and that "she is the historian." The impression was bilateral osteoarthritis of the knees. Subsequent VA clinical records show continued treatment for bilateral knee complaints. After considering this evidence, in a May 2010 rating decision, the RO denied service connection for a bilateral knee disability. The appellant appealed the RO's determination, stating that she had sustained an injury while on active duty. The appellant did not provide any further details regarding the nature of her claimed in-service injury. See May 2011 VA Form 9. In connection with her appeal, the appellant testified at a Board videoconference hearing in December 2012. When asked about the nature of her claimed in-service injury, the appellant responded that her knee problems had begun in basic training when she was performing a lot of marching and climbing. Specifically, she developed pain and swelling in the right knee, sought medical treatment, and was advised her that her symptoms were due to overuse. She testified that she was then placed on a profile for a week or two during basic training. Transcript at pages 3-4. The appellant further testified that she again experienced recurrent problems with her knees during AIT. She claimed that she sought treatment and was given another profile. She further claimed that, on one occasion, she had fluid drained from her knee. The appellant testified that she continued to experience knee problems during her remaining period of active duty and would seek treatment on those occasions. She indicated that, shortly after her separation from service, she was treated for knee complaints. Finally, the appellant testified that she continued to receive treatment for her knees over the years and that at least three of her treating physicians, both VA and private, had indicated that her current knee disabilities could be related to the physical training requirements of the Army. Transcript at pages 8 to 10. She indicated that her knee had progressed to the point that she underwent a total knee replacement in 2009. At the hearing and in its October 2013 remand, the Board advised the appellant that the record on appeal contained no private treatment records dated earlier than 1997. The Board also advised the appellant that the record did contain VA clinical records dated from November 2009 to May 2010, but these records are negative for any indication of a total knee replacement she reportedly underwent in 2009. Finally, the Board advised the appellant that, despite her testimony to the effect that her physicians had told her that her bilateral knee disability may be related to strenuous physical training in the Army, there was no such opinion of record and that it would be to her benefit to submit statements from her physicians memorializing their purported opinions regarding the relationship between her current knee disabilities and her military service. No such medical opinion was received. Pursuant to the Board's remand instructions, the RO contacted the service department and requested a search of additional records pertaining to the appellant. In November 2013, VA received additional service treatment and personnel records, which are entirely negative for complaints or abnormalities pertaining to the knees. In pertinent part, these records include an April 1980 memorandum entitled "Medical Examination for Separation," in which it was noted that the appellant had no medical conditions, physical defects, or assignment limitations. The official completing the record determined that a review of her records indicated that a separation examination was not required. In September 1980, the appellant elected not to undergo a separation medical examination. The appellant's service personnel records show that she served as a supply clerk. Her performance reports describe her as physically fit and capable of performing her duties. Her treatment and personnel records contain no indication that she was ever given a profile for knee complaints. In addition, pursuant to the Board's October 2013 remand instructions, the RO offered the appellant another opportunity to submit or identify evidence in support of her claim, to include records of treatment for knee complaints prior to 1997 and records corresponding to her reported total knee replacement in 2009 In pertinent part, additional private records obtained by the RO show that the appellant complained of right knee pain in February 2011. She indicated that she could not remember a specific knee injury. She further indicated that her left knee did not bother her. These records show that the appellant underwent a total right knee replacement in March 2011. The appellant was afforded a VA medical examination in January 2014. After examining the appellant and reviewing the record, the examiner concluded that the appellant's current degenerative joint disease of the bilateral knees, status post right total knee replacement, was more likely than not due to her thirty years of working in a paper plant where she had to stand all day, as well as her obesity, which placed additional stress on her weight-bearing joints. The examiner further explained that being a woman and aging increased the likelihood of developing osteoarthritis. Finally, the examiner noted that the appellant did not recall any specific knee injuries in the military or after which also could increase the likelihood of developing degenerative joint disease or arthritis. The appellant was again afforded a VA medical examination in August 2014. After examining the appellant and reviewing the record, the examiner concluded that the appellant's current knee disabilities were not related to service. She explained that the appellant's service treatment records did not show any knee pain or problems during active duty. Additionally, the post-service treatment records showed that she was first treated for knee pain in 1997, which was seventeen years after service separation. The examiner noted that these symptoms had developed gradually after many years of working in an occupation which required standing. Applicable Law Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2015). 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) (2015). Service connection for certain chronic diseases, including arthritis, may be also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 2014); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2015). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a) (2015); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C.A. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 2014); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis The appellant has contended that she developed a bilateral knee disability as a result of wear and tear and strenuous physical activity during her period of active duty, including rigorous physical training (PT) and long marches. After carefully considering the record on appeal, the Board finds that the preponderance of the evidence is against the claim of service connection for a bilateral knee disorder. As a preliminary matter, the Board finds that the most probative evidence establishes that a chronic bilateral knee disability, to include arthritis, did not manifest during the appellant's active service. As set forth above, the appellant's service treatment records are entirely negative for complaints or findings pertaining to either knee. Indeed, in April 1980, shortly before service separation and well after she claims to have developed chronic knee problems during basic training, the appellant's service treatment records were examined, and it was determined that she had no medical conditions, physical defects, or assignment limitations. The Board also observes that her performance reports describe her as physically fit with no indication of limitations due to knee complaints. Given this evidence, the Board finds that the contemporaneous record affirmatively establishes that neither chronic right or left knee symptoms nor a chronic right or left knee disability, such as arthritis, was present during the appellant's active service. The Board notes that it has carefully considered the various statements recently offered by the appellant during the course of this claim regarding the onset of her bilateral knee symptoms, but finds that their probative value is significantly diminished by their inconsistencies. The Board further finds that her more recent statements do not outweigh the contemporaneous records discussed above. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the Veteran). As delineated in detail above, the appellant has offered several statements regarding her in-service knee complaints and treatment and the onset of her symptoms. On her February 2010 original application for VA compensation benefits, for example, the appellant indicated that she had a bilateral knee disability which had begun in 1980. At her January 2013 Board hearing, however, the appellant testified that she developed bilateral knee problems during basic training in 1977 which persisted throughout AIT and the remainder of her period of active duty. Moreover, private medical records dated in July 1997 document the appellant's own report of an onset of right knee pain only three weeks earlier after her job changed and became a little more strenuous. In October 2008, the appellant indicated that her left knee pain had only been present for one year. In addition to these internal inconsistencies in the details of the appellant's statements, the Board notes that the appellant's statements are inconsistent with the contemporaneous record. For example, at her January 2013 Board hearing, the appellant testified that she was treated on multiple occasions during active duty, including an episode in which she had fluid drained from her knee. She also claimed that she had been put on a profile on at least two occasions due to her knee symptoms. As set forth above, however, VA has obtained her complete service treatment and personnel records. These records show that the appellant was seen during her period of active duty on multiple occasions for various complaints. On no occasion, however, were knee complaints ever recorded. In fact, the appellant's service treatment and personnel records are entirely negative for any indication of knee complaints, treatment therefor, or a physical profile. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Rather, as previously noted, in April 1980, shortly before service separation, the appellant's service treatment records were examined, and it was determined that she had no medical conditions, physical defects, or assignment limitations. Based on the foregoing, the Board finds that the most probative evidence shows that chronic right and left knee disabilities, including arthritis, did not manifest in service or within one year thereafter. Indeed, in reviewing the record on appeal, the Board notes that the first diagnosis of right knee arthritis was in 2002, approximately twenty-two years after separation, and the first diagnosis of left knee arthritis was in 2005, approximately twenty-five years after separation. The Board further finds that the evidence of record contains no probative evidence establishing that the appellant's current right or left knee disabilities are causally related to her active service or any incident therein, including strenuous physical training. Indeed, as set forth above, in January 2014 and August 2014, a VA medical examiner concluded that it was less likely than not that the appellant's current right and left knee disabilities were related to her active service. The Board notes that there is no other medical evidence of record which contradicts this opinion or otherwise suggests a link between the appellant's current right or left knee disabilities and her active service or any incident therein. In reaching this decision, the Board has considered the appellant's recent statements to the effect that she developed bilateral knee pain during active service which has been present since that time. Given the contemporaneous, objective record as well as the inconsistencies she has provided regarding the details of his symptoms, the Board does not find the appellant's statements to be credible. Rather, the Board finds that the contemporaneous clinical records are entitled to far greater probative weight than the remote recollections of the appellant made in the context of a claim for benefits. Curry, 7 Vet. App. at 68. The Board has also considered the appellant's contentions to the effect that three of her treatment providers told her that her current bilateral knee disability could be the result of strenuous physical training in service. The Board finds the appellant's statements to be outweighed by the contemporaneous evidence of record and the opinions of the VA medical examiner. VA has obtained clinical records from the appellant's VA and private physicians, yet these records are entirely negative for any indication that any treatment provider has concluded that the appellant's current bilateral knee disability is causally related to her active service or any incident therein. Moreover, despite the appellant being competent to report what a physician has told her, the Board finds that the specific, reasoned opinion provided by the VA examiner is of greater probative weight than the general statements of what a physician purportedly told her. The examiner reviewed the evidence of record, including the Veteran's statements and reported history, and provided a rationale supported by the evidence and his own knowledge, training, and medical expertise. In summary, the Board finds that the most probative evidence shows that chronic right and left disabilities, including arthritis, were not present during the appellant's active service, arthritis was not manifest to a compensable degree within one year of service discharge, and her current right and left knee disabilities are not otherwise causally related to her active service or any incident therein. For these reasons, the preponderance of the evidence is against the claim of service connection for a bilateral knee disability. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER Entitlement to service connection for a bilateral knee disorder is denied. ____________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs