Citation Nr: 18152079 Decision Date: 11/21/18 Archive Date: 11/20/18 DOCKET NO. 16-45 571 DATE: November 21, 2018 ORDER Service connection for left knee disability is denied. FINDING OF FACT A left knee disability is not shown in service and arthritis did not manifest to a compensable degree within the applicable presumptive period; and degenerative joint disease, diagnosed many years after service, is not otherwise etiologically related to service, including in-service injury. CONCLUSION OF LAW The criteria to establish service connection for left knee disability are not met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1984 to April 1988. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. As an initial matter, the Board finds that the VA has fully complied with its duty to assist the Veteran in substantiating his claim. 38 U.S.C. §§ 5100, 5103A; 38 C.F.R. §§ 3.103, 3.156(b)(c), 3.159, 3.326(a). VA’s duty to assist claimants in substantiating a claim for benefits is found at 38 U.S.C. §§ 5100, 5103A; and 38 C.F.R. §§ 3.103, 3.156(b)(c), 3.159, 3.326(a). VA shall make reasonable efforts to assist a Veteran in obtaining evidence necessary to substantiate his claim. 38 U.S.C. § 5103A. In the case of a claim for disability compensation such as this, the duty to assist includes a duty to obtain, if relevant, the claimant’s service medical records. 38 U.S.C. § 5103A(c)(1)(A). If VA is unable to obtain the service medical records (STRs), the VA must continue efforts to obtain those records until it is reasonably certain that the records do not exist or that further efforts to obtain those records would be futile. 38 U.S.C. § 5103A(c)(2). In June 2013, the Veteran filed this claim for service connection for degenerative joint disease. In his complaint he stated that his degenerative joint disease is due to a fall while on board ship. He wrote that, after falling, he was seen in sick bay. VA submitted a Request for Information to the National Personnel Records Center (NPRC) in September 2013 asking that it be furnished complete medical/dental records for the Veteran and his entire personnel file. The NPRC responded in December 2013 that all available requested records had been shipped to a contractor for scanning and upload. VA received approximately 65 pages of personnel records but only seven pages STRs, all of which were from his Reserves service. VA was not supplied with any STRs from the Veteran’s period of active duty. In December 2013, VA contacted the Veteran concerning the missing STRs. The Veteran stated that he had his STRs in his possession. When asked to submit them, the Veteran responded that he would attempt to submit them to the VA medical center (VAMC) in Kansas City, Missouri. In February 2014, when VA had not received the STRs from the Veteran, they contacted him again by telephone. On this occasion, the Veteran advised VA that the STRs had been lost in storage. In July and August of 2016, in compliance with 38 C.F.R.§ 3.159(e), VA sent the Veteran letters advising him that efforts to obtain the STRs had been exhausted and it had determined that further attempts to obtain the records would be futile. In the same letters, VA (1) advised the Veteran that he might be able to furnish documents that could substitute for the STRs; (2) suggested some documents which might serve as substitutes; (3) and advised the Veteran that, if he were unable to submit such records, he might advise VA of their location. Copies of both letters were also sent to the Veteran’s representative. No response was received. In June 2018, the Veteran, through his representative, raised the issue of whether VA has complied with its statutory duty to assist the Veteran by obtaining STRs relevant to his claim. Specifically, the Veteran’s representative wrote that it is their position that all STRs were forwarded to the scan site. Therefore, they believe there may be some recourse in trying to locate the records at the scan site or in “deep storage.” The Board acknowledges that, in an appeal such as this in which a claimant’s STRs are unavailable through no fault of his own, there is a heightened obligation for VA to assist the Veteran in the development of his claim. See Washington v. Nicholson, 19 Vet. App. 362, 369-71 (2005). Nevertheless, the Board finds that, having taken the steps described above, VA has complied with its duty to obtain the STRs and its additional duties to (1) notify the Veteran that further efforts to obtain the records would be futile; and (2) advise him to submit alternative forms of evidence to support his claim. 38 U.S.C. § 5103A; 38 C.F.R.§ 38.159; Washington, supra at 369-71. Because VA requested complete medical records and the Veteran’s entire personnel file, VA complied with its additional duty to explore alternatives to the missing STRs. Id. The Board finds that remand would serve no useful purpose as the record demonstrates that further efforts to obtain the STRs would be futile. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). NPRC’s statement that all available records were sent to the scanning site does not in any way establish that NPRC had the missing records or sent them to the scanning site. The representative’s assertion that a remand might result in records being located at the scanning site or in “deep storage” is mere conjecture. Remand is not required when it would additionally burden the agency with no reasonable possibility of benefiting the Veteran. Winters v. West, 12 Vet. App. 203 (1999). The Veteran has not identified any alternative evidence that could be obtained to substantiate his claims; the Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claim. Entitlement to service connection for left knee disability. The Veteran contends that his left knee disability is related to in-service injury. In June 2013, the Veteran filed this claim stating that in 1985 or 1986, while on board the USS White Plains, he slid down a set of stairs and landed on his left knee. He wrote that he suffered lacerations from the fall, was treated in sick bay and was put on light duty for a few weeks. He wrote that his knee continued to bother him for the rest of his service. The Boards concludes that the preponderance of the evidence is against service connection for left knee disability. A left knee disability is not shown in service and arthritis is not shown within the initial post separation year. Also, degenerative joint disease diagnosed many years after active service, is not otherwise etiologically related to service, including in-service injury. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. Service connection basically means that the facts, shown by evidence, establish that an injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in- service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a), (d). For explicitly recognized chronic diseases (38 C.F.R. § 3.309(a)), service incurrence or aggravation may be established under 38 C.F.R. § 3.303(b) by demonstrating continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For arthritis, the disability is considered to have been incurred in or aggravated by service although not otherwise established during the period of service if manifested to a compensable degree within one year following service in a period service. 38 U.S.C. §§ 1101, 1131; 38 C.F.R. §§ 3.307(a) (3), 3.309(a). In this case, August 2012 VA treatment records show that the Veteran complained of knee pain and that x-ray revealed early arthritis. A May2014 VA treatment record further reflects a diagnosis for minimal degenerative changes of the left knee based on x-rays. However, competent evidence linking this disability to service has not been presented. The Board accepts that the Veteran is competent to report his injury, symptoms (i.e. pain), and treatment. Layno v. Brown, 6 Vet. App. 465, 469 (1994). See also Falzone v. Brown, 8 Vet. App. 398, 405 (1995). However, the Veteran is not competent to attribute any current symptoms or medical findings for arthritis to his in-service injury as he lacks the requisite medical expertise and training to render a medical opinion; furthermore, as arthritis is not susceptible to lay observation, he is not competent to diagnose the disability as present within the initial post separation year. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). To the extent that the Veteran reports problems since that injury, the Board observes that he entered the Reserves subsequent to active service and apparently was deemed fit for duty. This strongly suggest that any symptoms were acute and transitory, which is further bolstered by the more than a decade intervening active service and the first documented complaints or findings for abnormal left knee pathology. Notably, a June 1991 Naval Reserves medical record, which was a little more than three years after his separation from active duty, reflects that the Veteran did not have any physical defect which might restrict his ability to serve on active duty. The first medical records following the Veteran’s separation from service in 1988 in which the Veteran reported a problem with his left knee are the VA records from August 2012. The Board assigns greater probative value to June 1991 Naval Reserves medical record coupled with the many years intervening active service and the first documented findings or complaints of left knee pain in February 2012. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006); see also Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom., Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue). A favorable medical has not been submitted to weigh in this matter. On balance, the evidence is against the claim. (Continued on the next page)   Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Mucklow, Associate Counsel