Citation Nr: 1805216 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 15-03 193 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for a right knee replacement as residuals of a right knee injury. 2. Entitlement to service connection for a left knee replacement as residuals of a left knee injury. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD T. Adams, Counsel INTRODUCTION The Veteran served on active duty from June 1954 to November 1957. These matters are before the Board of Veterans' Appeals (Board) on appeal of a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2016, these matters were remanded for further development. They are now ready for adjudication. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT The Veteran does not have a right or left knee disability that is related to active duty service, and the competent and credible evidence fails to establish an etiological relationship between the Veteran's currently diagnosed right and left knee disabilities and his active service. CONCLUSION OF LAW Left and right knee disabilities were not incurred in or aggravated by service, and may not be presumed related to service. 38 U.S.C. §§ 1110, 1111, 1131, 1132, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist In this case, there is no indication in this record of a failure to notify. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Pursuant to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C. § 5103A(c)(2). All records pertaining to the conditions at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159(c)(3)). In this case, the record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the claims. Pertinent medical evidence associated with the claims files consists of the VA treatment records and private treatment records. Pursuant to the Board's September 2016 remand, in a December 2016 letter, the Veteran was also asked to submit or authorize VA to obtain additional medical records regarding treatment of his left knee replacement in 1966 and the right knee replacement in 2000. He was provided with a VA Form 21-4142, Authorization to Disclose Information. However, no response was received. In addition, additional VA treatment records were requested from the Loma Linda VAMC. However, there was no record of treatment at that VAMC. The Board notes that the Veteran's complete service treatment and personnel records are unavailable. Exhaustive attempts have previously been made to obtain these records. In July 2006, the VA Personnel Information Exchange System (PIES) indicated that the Veteran's file was fire-related. Pursuant to the Board's September 2016 remand, the RO requested a copy of the Veteran's morning reports from January 1955 to December 1955 related to any injuries sustained to his knees while assigned to the 5001 Supply Squadron. In this regard, in a July 2017 memorandum, the RO Joint Services Records Research Coordinator (JSRRC) indicated that in April 2017 a request for morning reports was sent to the National Personnel Records Center (NPRC). However, in July 2017 the NPRC sent a negative reply. The JSRRC coordinator concluded that the Veteran's records are fire related and that a request to the NPRC revealed that there are no records that confirm the Veteran's claim of hurting his knees while performing his duties during service. The Board observes that the Veteran's claims are ultimately being denied based on the lack of a medical nexus between his service and his current disabilities, not solely on a lack of evidence of in-service complaints of a bilateral knee disability or injury and his currently diagnosed bilateral knee disability. Hence, the lack of a copy of his STRs is not prejudicial in the instant case. The Court has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board's analysis has been undertaken with this heightened duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. Russo v. Brown, 9 Vet. App. 46 (1996). A VA medical examination and opinion was obtained in this case to address the etiology of the Veteran's claimed bilateral knee disability. In summary, the Board finds that the examination reports and opinions, as a whole, show that the examiner considered the evidence of record and the reported history of the Veteran, conducted a thorough examination, noting all findings necessary for proper adjudication of the matter, and explained the rationale for the opinion offered. Hence, the Board finds that the VA examination and medical opinion obtained in this case are adequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). Under the circumstances, the Board finds that there has been substantial compliance with its remand. See Dyment v. West, 13 Vet. App. 141 (1999) (a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where there is substantial compliance with the Board's remand instructions); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C. § 5103A and 38 C.F.R. § 3.159. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (West 2012). Generally, 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, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). In addition, certain diseases, such as arthritis, are presumed to have been incurred in service if manifested to a compensable degree within one year after service. The presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113 (West 2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017). When chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Finally, 38 U.S.C. § 1154(a) requires that VA give 'due consideration' to 'all pertinent medical and lay evidence' in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, '[l]ay evidence can be competent and sufficient to establish a diagnosis of 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); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Veteran contends that he has a bilateral knee disability that is related to his service. In an October 2016 statement, the Veteran stated that he was assigned to the 5001st Supply Squadron as a refueling operator in 1955. He stated that while refueling planes he wore rubber boots with slick soles with no traction which caused him to slip and land on his knees. As noted above, there are no available service treatment records. Post-service, VA treatment records include a June 2009 report which indicates a past medical history of total knee replacements in 1996 and 2002. Another June 2009 report indicates that he retired in 1996 from working in newspaper mailrooms and running printing presses. An August 2009 report states that he had a total knee replacement in the left knee in 1996 and in the right knee in 2000. He reported experiencing knee problems since undergoing surgery. A September 2009 report indicates a bilateral knee replacement which was asymptomatic at that time. An X-ray examination indicated bilateral total knee replacements without evidence of hardware complications. Another September 2009 report indicates a history of osteoarthritis. Private treatment records indicate a left knee arthroplasty failure in July 2015. Pursuant to the Board's September 2016 Remand, on February 2017 VA knee and lower leg conditions Disability Benefits Questionnaire (DBQ) examination, after a thorough examination and a review of the claims file, the examiner diagnosed bilateral knee osteoarthritis and contracture since February 2017. The examiner opined that the claimed bilateral knee disability was less likely than not incurred in or caused by his service based, in part, on the rationale that there is no evidence of any service-related medical injury to either knee. In addition, the only post service medical records pertaining to his knees were dated from 2009, nearly 52 years following separation. The examiner explained that such documentation on a consistent basis, even within a couple years following separation from service and every decade thereafter, would have helped substantiate a finding that the Veteran sustained a bilateral knee injury severe enough to result in his current chronic disability. The examiner also noted that the Veteran was employed in a newspaper mailroom and stated that there was nothing to disprove the fact that his occupation resulted in a general wear and tear to both knees as opposed to a distant in-service injury. He also stated that the most modifiable risk factor in the development of chronic lower extremity musculoskeletal pathology is obesity and noted that the Veteran appeared to fit the medical definition of obesity based on his BMI (body mass index). The examiner concluded that the Veteran's obesity is the primary risk factor in the development of his bilateral knee osteoarthritis which ultimately required replacement. The Board finds that the claims must be denied. Specifically, the most competent medical evidence is against a finding that the Veteran has bilateral knee disability that is related to his service. Considering the fact that the Veteran's STRs are unavailable and there are no additional service personnel records (including morning reports) which relate to the Veteran's bilateral knee disability, even if the Board assumes that the Veteran did, in fact, sustain an in-service injuries to his right and left knee, there is no evidence of record that this resulted in any residual injury. To the extent that the Veteran contends that he has had a history of continued symptomatology since active service, this has been considered, but is not found to be accurate. In making this determination, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board is not required to accept an appellant's uncorroborated account of his active service experiences. Wood v. Derwinski, 1 Vet. App. 190 (1991). Notably, the post-service medical records do not indicate any bilateral knee disability until 1996. The mere absence of medical records does not contradict a Veteran's statements about his symptom history. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, if it is determined based upon reliable evidence that there was an extended period of time after service without any manifestations of the claimed condition, then that tends to weigh against a finding of a connection between the disability and service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In this case, the Board finds that the Veteran did not experience any symptoms of any right or left knee disability for at least 39 years after service. This long period without problems (while, importantly, other problems are indicated) weighs against the claim. Continuity of symptomatology has not been established, either through the competent evidence of record or through the Veteran's statements. Finally, there is no competent medical evidence that supports the conclusion that the Veteran has a bilateral knee disability that is related to his service. In this case, the Board has taken the contention that the Veteran's claimed disability was caused by his service seriously (this was the basis of the Board's remand in order to address this medical question). In this regard, the Board finds that the April 2017 VA examination and medical opinion provide highly probative evidence against this claim. After reviewing the claims file, considering the Veteran's documented and reported history, and performing a physical examination, the examiner concluded that the Veteran's bilateral knee disability was not related to his service. The examiner provided a conclusion with a sufficient rationale. Therefore, the VA medical examination and opinion provides probative evidence against the Veteran's claims of high probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board has also closely reviewed the medical and lay evidence in the Veteran's claims file and finds no evidence that may serve as a medical nexus between the Veteran's service and his claimed disability. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the etiology of a bilateral knee disability, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection for a right and left knee disability and there is no doubt to be otherwise resolved. As such, these claims are denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 (2017). ORDER Service connection for a right knee replacement as residuals of a right knee injury, is denied. Service connection for a left knee replacement as residuals of a left knee injury, is denied. ____________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs