Citation Nr: 1752364 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 10-04 842 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a right knee disability, status-post total replacement. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Watson, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1961 to October 1982, including participating in Operation Eagle Claw. This appeal comes before the Board of Veterans' Appeals (Board) from a rating decision the Department of Veterans Affairs (VA) Regional Office (RO), at St. Petersburg, Florida, issued in August 2007. In March 2016, the Board last remanded this appeal to develop it further by addendum VA examination. In June 2016, a VA examiner opined as to the etiology of the Veteran's right knee disability, following a VA examination of March 2014, conducted on previous remand. As the March 2016 remand directed, the RO readjudicated the claim and issued a Supplemental Statement of the Case (SSOC) in August 2016 by which it continued to deny the claim. Thus, there has been substantial compliance with the Board's March 2016 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDING OF FACT The Veteran's current right knee disability is not attributable to disease or injury sustained during his period of active service. CONCLUSION OF LAW The criteria for service connection for a right knee disability are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations obligate VA to provide claimants notice and assistance. 38 U.S.C.A. §§5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). The law entitles a Veteran to compensation if he or she develops a disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. §3.303(a). Generally, to establish service connection, a Veteran 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the Veteran incurred the disease or injury in service. 38 C.F.R. §3.303(d). Arthritis is a "chronic disease" listed under 38 C.F.R. § 3.309 (a); therefore, 38 C.F.R. § 3.303 (b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease shown in service or within the presumptive period, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C.A. §§ 1112 , 1113, 1137; 38 C.F.R. §§3.303, 3.304, 3.307, 3.309(a). The Board must consider all pertinent medical and lay evidence to evaluate a claim for disability benefits. 38 U.S.C.A. § 1154(a). Lay evidence can be competent and sufficient to diagnose a condition when (1) a 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board may not find lay evidence incredible merely because contemporaneous medical evidence does not accompany it. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the Board may consider and weigh lack of contemporaneous medical evidence against a Veteran's lay statements. Id. Further, the Board may draw a negative inference from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999); Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). First, to analyze the Veteran's claim under the theory of direct service connection, he has shown by evidence of record that he suffers a present right knee disability to meet the first element. As his March 2014 VA examiner found, the Veteran had his right knee joint totally replaced in 2004. It showed some residual degree of weakness, limited motion, and pain during the examination. Additionally, the Veteran underwent arthroscopic surgery upon the same knee in 2003. Second, the Veteran has shown he was injured in service, which his fellow Veteran's buddy statement dated October 15, 2005, corroborates. Third, the question remains whether a nexus links the Veteran's current right knee disability to his Operation Eagle Claw injury, which the Veteran contends caused his current right knee disability. Through written statements, the Veteran has described remembering that the now deceased flight surgeon took notes about his knee when Operation Eagle Claw returned to Marian (Masirah) Island. The Veteran has further described that the flight surgeon instructed the Veteran to see him again unless his knee stopped hurting, which the Veteran averred "it did" by letter dated October 2013. The Veteran's October 2013 statement proceeds to describe when he felt pain again in the right knee many years later and observed swelling after he retired in Florida, causing him to visit the Magnolia Medical Clinic in the 1990s at Ft. Walton Beach, Florida, including a visit to a doctor to drain fluid from his effusive right knee. During the March 2014 VA examination, the Veteran reported that a right knee x-ray he received in 1999 showed a "little arthritis." The Board notes that break in time throughout the 1980s and beyond, showing no complaints of the right knee, weighs against finding continuity of symptomatology with respect to the current right knee disability and the events of April 1980 during Operation Eagle Claw. While the Veteran is competent to testify to lay facts he has observed during or after service, such as the onset or persistent pain at the time of Operation Eagle Claw and after, he is not competent to opine a causal relationship between his in-service injury and his current right knee disability; because determining that requires medical expertise. Jandreau, 492 F.3d at 1377. Thus, his own lay statements concerning medical nexus are not competent or probative. Regarding osteoarthritis, the June 2016 VA examiner opined that it is less likely as not that the Veteran's knee condition was caused by or a result of or had its onset in service or was aggravated by his active duty service, because even taking into consideration the Veteran's report of right knee injury while in service, there was no documented evidence of any subsequent knee abnormalities or conditions resulting from that injury in the service treatment records with arthritis being diagnosed more than 2 years after retirement. The June 2016 VA examiner stated that "for osteoarthritis secondary to trauma, the trauma has to have been significant, evidenced by inability to bear weight...or imaging abnormalities at the time of that injury...continued abnormal knee findings...following that injury..." As the examiner noted there is no evidence demonstrating any subsequent knee abnormalities or conditions resulting from the injury in service, to include the service treatment records. Drawing on the Veteran's description of the inservice injury and that pain resolved with ice and aspirin, and his buddy stating the Veteran was able to walk and carry another person at the time of injury, the June 2016 VA examiner concluded the injury was a sprain of muscular or soft tissue and not the boney joint spaces that may lead to arthritis, noting other risk factors for linked to arthritis. Regarding chronic synovitis, the June 2016 VA examiner found of the right knee that "(i)t is less likely as not that the Veteran's above knee condition was caused by or a result of or had its onset in service or was aggravated by his active duty service, because even taking into consideration the Veteran's report of right knee injury while in service, there was no documented evidence of any subsequent knee abnormalities consistent with synovitis...and synovitis was diagnosed" more than two years after the Veteran retired from service. The Board finds the June 2016 and March 2014 VA examiners competent to render medical opinions due to their education, experience and credentials; and credible due to their well-reasoned rationales as medical professionals. Thus, the Board finds their reports significantly probative and lends greater weight to their medical opinions relative to the lay evidence with respect to etiology. Nieves -Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board finds the evidence preponderates against finding a causal nexus between the Veteran's current right knee disability and his active duty service injury in April 1980 during Operation Eagle Claw, based on the competent and credible lay and medical evidence of record. Consequently, the Board finds the weight of the evidence demonstrates that service connection is not warranted for the Veteran's right knee disability to his service because the third element of service connection is not met. 38 C.F.R. § 3.303. Service connection for right knee arthritis based on the presumption in favor of chronic diseases and continuity of symptomatology is not warranted due to the lack of evidence showing complaints. Walker, 708 F.3d 1331; 38 C.F.R. §§ 3.303, 3.307, 3.309. The Veteran's right knee arthritis was diagnosed more than two years after he retired from service and the weight of the evidence does not demonstrate continuity of symptoms, so service connection on a presumptive basis is not warranted. The benefit of the doubt rule does not apply because the evidence preponderates against the claim. See 38 U.S.C.A. § 5107(b); Ortiz, 274 F.3d at 1364; Gilbert, 1 Vet. App. at 55-57; 38 C.F.R. § 3.102. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for a right knee disability, status-post total replacement, is denied. ____________________________________________ K.J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs