Citation Nr: 1644989 Decision Date: 11/30/16 Archive Date: 12/09/16 DOCKET NO. 12-26 931 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and a Friend ATTORNEY FOR THE BOARD J.A. Williams, Associate Counsel INTRODUCTION The Veteran had active service from February 1968 to September 1969, including service in the Republic of Vietnam. His decorations include the Purple Heart Medal and the Combat Infantryman Badge. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision by the Buffalo, New York Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in a May 2015 Travel Board hearing; a transcript of the hearing is associated with the claims file. In January 2016 the Board remanded the claims for additional development. In March and April 2016, the Veteran submitted additional evidence along with a written waiver of initial Agency of Original Jurisdiction consideration. See 38 C.F.R. § 20.1304(c) (2015). FINDINGS OF FACT 1. The Veteran's right knee disability did not have its onset in service and is not otherwise related to service. 2. The Veteran's left knee disability did not have its onset in service and is not otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disability have not been met. 38 U.S.C.A. §§ 1110, 1154(b), 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2015). 2. The criteria for service connection for a left knee disability have not been met. 38 U.S.C.A. §§ 1110, 1154(b), 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veteran's Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015). A letter sent to the Veteran in December 2010 provided compliant notice. Regarding the duty to assist, all relevant evidence necessary for an equitable resolution of the issues on appeal have been identified and obtained, to the extent possible. The evidence of record includes the service treatment records (STR), VA treatment records, private treatment records, VA examination reports, and evidence submitted by the Veteran, including his lay statements. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. Therefore, the Board finds that VA has satisfied its duty to assist in this regard. The Veteran was afforded VA examinations in January 2011 and April 2016. The April 2016 examination report in particular shows the VA examiner reviewed the claims file, to include the service treatment records, and considered the Veteran's lay statements. After conducting an appropriate evaluation of the Veteran, the examiner opined as to whether the Veteran's bilateral knee disability was related to service. As the examiner reviewed the claims file, considered the Veteran's contentions, and supported her conclusion with a thorough rationale, the opinion is adequate. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran testified during a Board hearing in May 2015 at which time the undersigned explained the issues on appeal, asked questions focused on the elements necessary to substantiate the claims, and sought to identify any further development that was required. These actions satisfied the Veterans Law Judge's duty to explain fully the issues and to suggest the submission of evidence that may have been overlooked. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). Neither the Veteran nor his representative has contended, and the evidence does not otherwise show that the undersigned failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. In January 2016, the Board remanded the claim for procurement of outstanding VA and private treatment records, lay statements, and for a VA examination to determine the nature, onset, and etiology of the Veteran's right and left knee disabilities. The RO obtained outstanding VA treatment records and in January 2016 the RO sent a letter to the Veteran requesting that he submit any lay statements and identify private treatment records that should be considered with his claim. The Veteran submitted private treatment records and a buddy statement describing his knee symptoms. In addition, the Veteran was afforded a VA examination in April 2016. The Board finds that the RO substantially complied with the remand instructions. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In order to establish service connection for a disability, the evidence 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In the case of any Veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the Veteran. Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b). The Veteran asserts his bilateral knee disability was caused by injuries sustained while in combat. He reported that while serving in Vietnam, he stepped on a land mine, was thrown 40 feet and landed on both knees in a rock pile. See May 2015 Hearing Transcript. He further reported that his knees became swollen and he was "out of action" for approximately two months. Id. The Veteran also stated that on another occasion he hit his right knee on a post while running to seek cover from enemy fire. Id. He reported that he has continued to have problems with his knees since service and his knees have weakened to the point if collapsing. Id.; see also February 2011 Statement in Support of Claim; see also February 2011 Buddy Statement. The Veteran's personnel records indicate that he had combat service. As previously noted, 38 U.S.C.A. 1154(b) has been interpreted to reduce the evidentiary burden for combat veterans with respect to the question of whether a particular disease or injury was incurred or aggravated in service. See Collette v. Brown, 82 F.3d 389, 392 (Fed.Cir.1996) ("Section 1154(b) does not create a statutory presumption that a combat veteran's alleged disease or injury is service-connected."). However, Section 1154(b) does not apply to the question of whether there is a current disability or a nexus connecting any current disability to service. Id. Thus, the provisions of 38 C.F.R. § 1154(b) do not obviate the requirement that a Veteran submit medical evidence of a causal relationship between his current condition and his military service. Wade v. West, 11 Vet. App. 302 (1999). Here, the Veteran has offered satisfactory lay evidence that he incurred injuries to his knees during combat. The Veteran's statements regarding his knee injuries are consistent with the circumstances, conditions, and hardships of combat service, and indeed, he has long been service connection for fragment wounds of the legs, with one of the resulting scars on the right patella. As such, the Veteran's bilateral knee injuries are presumed to have occurred in service. The Board must still determine whether the Veteran has current disabilities that are connected to his in-service injuries. The medical evidence of record shows that the Veteran has degenerative arthritis of both knees. See April 2016 VA Examination Report. His service treatment records indicate that the he was treated for a bruised right knee in September 1969. On physical examination the right knee showed no swelling or pain, and full range of motion. The medical service provider also noted a small abrasion with crepitus when pressure was applied to patella. The knee ligaments were intact. Service treatment records are silent for any additional treatment for the left or right knees. At separation, the Veteran indicated that he had a "trick" or locked knee on his report of medical history, but his clinical evaluation at separation indicates that his lower extremities were normal. The Veteran's post service treatment records do not show complaints of or treatment for bilateral knee pain until 2010, approximately 40 years after service. See VA Treatment Records. Then, during a January 2011 VA examination, the Veteran reported that his knee pain began in February 2010. He stated that he was getting in a truck and felt pain in his left knee. Subsequently, after favoring his left knee he began to have pain in his right knee. The Veteran was afforded a VA examination in April 2016. The examiner opined that the Veteran's current right and left knee disabilities were less likely than not incurred in or caused by the claimed in-service injury or event. The examiner reasoned, "As per records, the Veteran did not report left knee pain while in [the] Military. He did report with right knee pain once, and treated. Exit exam dated September 17, 1969 revealed normal lower extremities. [The] Veteran did not complain of knee pain [until] 2010 . . . after he accidentally twisted his left knee and thigh when climbing in the truck but developed pain in both knees." The examiner further explained in detail that the Veteran's obesity and age contributes to his knee arthritis and pain. Other evidence addressing the nexus element includes a January 2016 treatment record from private medical service provider Dr. D. Wnorowski stating that the Veteran's bilateral knee disability is "likely secondary to prior remote injury sustained while serving in Vietnam." The treatment record further states, "It is at least as likely as not that his service-connected injuries are connected to his knee osteoarthritis and his knee osteoarthritis most [sic] likely posttraumatic." The Board has carefully considered this information, but finds the April 2016 VA examination report more probative, since it corresponds to the known facts and provides a detailed explanation of all relevant factors including the absence of continuity or chronicity after service. Also of note is the fact that Dr. Wnorowski does not explain the basis for his conclusions, and there also appears to be a hand written alteration in Dr. Wnorowski's typed private treatment notes. There is nothing to show that any changes were approved by Dr. Wnorowski himself. Under the forgoing circumstances, the greater weight of the evidence is against the conclusion that right and left knee disabilities were incurred in service. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. 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). ORDER Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for a left knee disability is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs