Citation Nr: 1753637 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 13-24 847A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for residuals of a right knee and/or leg injury. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran served on active duty from July 1955 to July 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2012 rating decision of the St. Petersburg, Florida Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge at an August 2016 hearing at the RO. A transcript of the hearing has been included in the claims file. In September 2016, the Board remanded the issue of entitlement to service connection for residuals of a right leg injury for further development. The development has been completed and associated with the claims file. A Supplemental Statement of the Case was issued in July 2017. The issue of entitlement to medical reimbursement has been raised by the record in an August 2016 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2016). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT A right knee and/or leg disability was not manifested during service or within one year of separation. A right knee and/or leg disability is not attributable to service. CONCLUSION OF LAW The criteria for service connection for a right knee and/or leg disability have not been met. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C.A. § 5103 (a); 38 C.F.R. § 3.159 (b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). In this case, the agency of original jurisdiction (AOJ) issued notice letters to the Veteran. These letters explained the evidence necessary to substantiate the Veteran's claim for service connection, as well as the legal criteria for entitlement to such benefits. The letters also informed him of his and VA's respective duties for obtaining evidence. The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist a veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The claims file contains the Veteran's available service treatment records, reports of post-service treatment, and the Veteran's own statements in support of his claim. The Veteran was afforded a VA examination responsive to the claim for service connection of a right knee and/or leg disability. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). The opinion was conducted by a medical professional, following thorough examination of the Veteran, solicitation of history, and review of the claims file. The Board also observes that the VLJ, at the Veteran's September 2016 hearing, explained the concept of service connection, as well as explained the evaluation process. Potential evidentiary defects were identified and the file was left open to provide an opportunity to submit additional evidence. The actions of the acting VLJ supplement VCAA and comply with 38 C.F.R. § 3.103. The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claim. For these reasons, the Board finds that the VCAA duties to notify and assist have been met. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2016). To establish a right to compensation for a present disability, 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-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after service 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). 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. For chronic diseases, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran contends that he has a right knee and/or leg disability as the result of an injury incurred while on active duty. Based on the evidence of record, the Veteran's claim of service connection for a right knee and/or leg disability must be denied. The Veteran's service treatment records reflect a notation of "r[igh]t hip" on his July 1955 entrance examination and that the Veteran was treated for a sore of the right leg in August 1955 with a "dressing." However, at the Veteran's June 1958 separation examination, the Veteran did not make any complaints related to the right knee or leg, At the November 2011 VA examination, the Veteran reported bilateral knee injuries due to falling and recurring pain due to walking hard decks in service; he reported that the "right sore leg" in service was actually his right knee. Following a physical evaluation and x-rays, the VA examiner found that there is no objective evidence of a current right hip or thigh disability, and that there was no other leg disability other than the Veteran's degenerative joint disease of the right knee. The VA examiner also found that the Veteran's degenerative joint disease of the right knee was not caused or aggravated by his military service. The VA examiner stated that, without resorting to speculation, it could not be determined whether the Veteran's current degenerative joint disease of the right knee was caused or aggravated by the Veteran's alleged right leg injury or the sore on the right leg in service. The VA examiner explained that service treatment records document a sore [on the] right leg in August 1955, but do not otherwise show any right leg or knee symptoms, treatment, or diagnoses; the separation examination report indicates that the Veteran had a normal musculoskeletal evaluation. The VA examiner also noted that the Veteran's right leg/knee symptoms and alleged injury were acute and transitory events and could not have caused or aggravated the Veteran's current degenerative joint disease of the right knee. In March 2012, the RO sought to clarify whether the Veteran wished to claim service connection for residuals of an injury to the right knee or residuals of an injury to his right leg, other than his right knee. He reported that he wished to claim service connection for residuals of an injury to the right leg. At the September 2016 Travel Board hearing before the undersigned VLJ, the Veteran testified that he injured his right knee when he slipped and fell on an icy ship deck. The weight of the evidence reflects that the Veteran does not have a right knee and/or leg disability injury related to his period of active duty. The Board points out that the Veteran has not been treated for or diagnosed with a right leg disability; the November 2011 VA examiner found that there was no objective medical evidence indicating that the Veteran had a right hip or thigh disability. See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000) (a Veteran seeking disability benefits must establish the existence of a disability and a connection between such Veteran's service and the disability). To the extent that the Veteran does have a right knee disability (degenerative joint disease), there is no objective medical evidence showing that his right knee disability is causally or etiologically related to the Veteran's service. No degenerative joint disease of the right knee was "noted" or identified during service or within one year of separation. Additionally, there is nothing to suggest that there were characteristic manifestations sufficient to identify the claimed degenerative joint disease of the right knee during service or within one year of separation. 38 C.F.R. § 3.303(b). According to available treatment records and the Veteran's own statements, the Veteran did not begin to experience right knee pain until approximately 2009 (see Tr-County Orthopedics February 2010 treatment report). In short, the evidence fails to establish the presence of pathology during service or within one year of separation. Moreover, as noted, the November 2011 VA examiner found that the Veteran's right knee disability was not caused or aggravated by the alleged injury in service. The VA examiner found that any right leg/knee injury was acute and transitory and there were no residuals; the VA examiner stated that, to find otherwise, the VA examiner would have to resort to speculation. The Board notes that speculation does not provide the required degree of medical certainty. See Bloom v. West, 12 Vet. App. 185, 187 (1999). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). As noted by the Federal Circuit, the Department must consider lay evidence, but may give it whatever weight it concludes the evidence is entitled to. Waters v. Shinseki, 601 F.3d 1274 (2010). The Veteran is competent to report injuries, symptoms, and diagnoses identified by a medical professional related to his right leg and knee; he is also competent to report when his symptoms were first identified. However, he is not competent to diagnose such a right knee and/or leg disability or provide a nexus between any right knee and/or leg symptoms or diagnoses and his active service; doing so requires specific medical training and knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds that the probative value of the general lay assertions are outweighed by the specific, reasoned opinion of the November 2011 VA examination report, as well as the clinical evidence of record. The Board notes that the opinion of the VA examiner is also consistent with the medical evidence of record, which does not demonstrate that the Veteran's degenerative joint disease of the right knee is related to an injury or event during service. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (stating that factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion). To this point, in seeking treatment in 2010 and 2016, the Veteran denied a history of trauma or injury to the right knee, and reported that the onset of right knee pain occurred between 2009 and 2013. The Board acknowledges the Veteran's contentions, but nothing in the Veteran's treatment records reflects a relationship between his service and his current degenerative joint disease of the right knee. See Madden v. Gober, 125 F.3d 1477, 1481 (1997) (in evaluating the evidence and rendering a decision on the merits, the Board is required to assess the credibility and probative value of proffered evidence in the context of the record as a whole). In short, the weight of the evidence is against a finding that the existence of a right knee/leg disability related to an event or injury during service. For the foregoing reasons, the preponderance of the evidence is against the claim for service connection of residuals of a right leg injury. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). ORDER Entitlement to service connection for residuals of a right leg injury is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs