Citation Nr: 1751535 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 08-08 287 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a right knee disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD A. Daniels, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1967 to February 1970, and from March 1970 to August 1976, to include service in the Republic of Vietnam. This matter is before the Board of Veterans' Appeals (Board) on appeal of an August 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery Alabama. In April 2012, the Veteran had a Board hearing before the undersigned Veterans Law Judge via a Travel Board and a transcript of that hearing is of record. This matter was previously before the Board in March 2016, at which time it was remanded for additional development. FINDING OF FACT The preponderance of the evidence is against a finding that a right knee disability is the result of a disease or injury in active duty service. CONCLUSION OF LAW A right knee disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016). Proper notice from VA must inform the appellant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the veteran is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). Such notice must advise that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id.; 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.159, 3.326 (2016); see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication. Moreover, the appellant had a meaningful opportunity to participate effectively in the processing of the claim decided herein with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in a letter dated in January 2006. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful, or prejudicial, falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Thus, VA has satisfied its duty to notify the Veteran and had satisfied that duty prior to the adjudication in the August 2017 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained examinations with respect to the claims decided herein. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. Finally it is noted that this appeal was remanded by the Board March 2016 in order to afford the Veteran a new VA examination and to obtain any outstanding medical records. The Board is now satisfied that there was substantial compliance with this remand. See Stegall v. West, 11 Vet. Ap. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Specifically, the Veteran was afforded a VA examination In June 2016, which the Board finds adequate for adjudication purposes. Accordingly, the Board finds that the remand directives were substantially complied with, and, thus, there is no Stegall violation in this case. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2014). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2016). Generally, to establish service connection for a disability resulting from a disease or injury incurred in service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculous disease and Hansen's disease; seven years for multiple sclerosis) from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112 (West 2014); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2016). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where a chronic disease under 3.309(a) is "shown as such in service" ("meaning clearly diagnosed beyond legitimate question," Walker, 708 F.3d at 1339) or in the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). In cases where a chronic disease is "shown as such in service," the Veteran is "relieved of the requirement to show a causal relationship between the condition in service and the condition for which service-connected disability compensation is sought." Walker, 708 F.3d at 1336. Instead, service connection may be granted for subsequent manifestations of the same chronic disease without any evidence of link or connection between the chronic disease shown in service and manifestations of the same disease at a later time. In other words, "there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease." Id. If evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not "shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned," i.e., "when the fact of chronicity in service is not adequately supported," then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and service, and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Walker, 703 F.3d at 1336; 38 C.F.R. § 3.303(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2016); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Right Knee Disability At the Veteran's August 1976 separation examination, his lower extremities were normal. The examiner noted hypertension and a left index finger deformity, but the Veteran indicated that his present health was "good." In January 1977, The Veteran received a disability examination, and the examiner noted an August 1976 automobile accident. However, there were no musculoskeletal abnormalities noted during the examination. The Veteran later attempted to re-enlist and received a physical examination in June 1981. His lower extremities were again noted as normal. He was not, however, permitted to re-enlist due to his hearing loss. The Veteran received VA treatment in August 1996 for his lower back, and the physician noted that he "now also [complains of] right leg and right foot pain." In December 2005, The Veteran received a consultation for pain in multiple joints, and the examiner noted a past medical history of degenerative arthritis in multiple joints. The Veteran indicated that he was told he needed a total knee replacement in his right knee. Upon examination, the examiner noted the Veteran to be morbidly obese, with crepitus on palpation in both knees. As a result of the examination, the Veteran was diagnosed with mild degenerative arthritis in both knees. While receiving mental health treatment in December 2006, the Veteran indicated that he served in Vietnam from January 1968 to January 1969. During that time, he stated that he injured his knee and shoulder when he ran into a door while his base was under attack. The Veteran also testified at a Board hearing in April 2012, and indicated that he injured his right knee when he fell in Vietnam during a rocket attack. He sought treatment at that time, and was told that his knee was just badly bruised. The Veteran said his knee would swell and get stiff, but it did not hurt. In 1974, the Veteran was in a motor vehicle accident, and stated afterwards that his knee began to bother him more. The Veteran stated that he sought treatment immediately after service, because his first job noticed that he had a problem during his physical, but he was not further evaluated and was still offered the position. After the first job, the Veteran's second job after service did not recognize a right knee problem, and the Veteran did not mention it. However, he indicated that it was still giving him problems and he continued seeking treatment through a private physician who gave him ointment and a wrap. Afterwards, the Veteran moved to a different job, and stated that he had surgery on his right knee in 1997. The Veteran's spouse also testified that they had been married since 1982, and he always had continuing complaints with his right knee. His right knee prevented him from being active, and he became less willing to do things he normally did as a result. The Veteran received a VA knee examination in February 2013, but the Board found that the opinion was not adequate for rating purposes. As a result, the claim was remanded by the Board in March 2016. Pursuant to the Board remand, the Veteran received another VA knee examination in June 2016. As a result of the examination, and after considering the Veteran's lay statements that his right knee was injured during service and the Veteran's 1974 motor vehicle accident, the examiner concluded that the condition was less likely than not incurred in or caused by the claimed in-service injury. The examiner found that the Veteran reported no knee condition in 1970 or 1976 when he separated. Furthermore, objective medical evidence did not support the Veteran's subjective complaints of a knee condition that occurred during active duty. The Board finds the June 2016 VA examination to be highly probative evidence against the Veteran's claim. It is competent and credible, as the examiner provided an adequate rationale with regards to the Veteran's right knee disability and its lack of connection to service. The Board concludes that the Veteran sustained a right knee injury while in service and has a current diagnosis of mild arthritis in his right knee. The evidence, however, indicates that the Veteran's right elbow arthritis is not related to his time in service. In light of the competent medical evidence indicating that the Veteran's right elbow disability is not related to service, the Board finds that service connection on a direct basis is not warranted. The Board also notes that arthritis is a chronic disease subject to presumptive service connection under 38 C.F.R. § 3.309(a). However, the most probative evidence indicates that the Veteran was asymptomatic at the time of discharge in 1976. The Board notes that the Veteran indicated that his right knee began to bother him in 1974 and he sought treatment immediately after separating from service. A Veteran's lay statements are competent with regard to facts perceived through the use of the five senses; as such, the Board will conclude that the Veteran had pain in his right knee for many years. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). However, VA examination in 1977 revealed some problems with cervical strain arising out of the in-service accident, but no complaints or findings with respect to the right knee, and there is no competent diagnosis of arthritis until many years after service. In fact, the competent, credible medical evidence indicates that the Veteran was not diagnosed with arthritis until 2005, almost 30 years after service. As the disability did not manifest to a compensable degree within one year from the date of separation, the Board finds that presumptive service connection is also not warranted. ORDER Entitlement to service connection for a right knee disability is denied. ____________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs