Citation Nr: 1806811 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 12-25 897 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for a bilateral knee disability. REPRESENTATION Appellant represented by: Massachusetts Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Teague, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from March 1969 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) from a January 2010 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In November 2016, the Veteran testified in a hearing conducted by videoconference before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the Veteran's electronic claims file. In July 2017, the Board remanded this matter to the Agency of Original Jurisdiction (AOJ) for further development. The July 2017 remand ordered the AOJ to conduct additional development of the record and to afford the Veteran a VA examination to address the current nature and etiology of his bilateral knee disabilities. Having accomplished both orders contained in the July 2017 Board remand, the AOJ has substantially complied with the remand and the case is once again before the Board for appellate consideration of the issue on appeal. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran's has reported an in-service injury to the bilateral knees that resulted in pain. 2. The current bilateral knee disabilities are not related to service. 3. The osteoarthritis of the bilateral knees first manifested years after service separation and is not causally or etiologically related to service. CONCLUSION OF LAW The criteria to establish service connection for a bilateral knee disability have not been met. 38 U.S.C. §§ 1101 , 1110, 1112, 1113, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2016). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. VCAA notice requirements apply to all five elements of a service connection claim (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). In a May 2009 notice letter sent prior to the initial denial of the claim, the RO provided timely notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the Veteran, and what evidence VA would obtain. The May 2009 letter included provisions for disability ratings and the effective date of the claim. VA has also complied with the duty to assist by aiding in obtaining evidence. All known and available records relevant to the pending appeal have been obtained and are associated with the Veteran's electronic claims file. The RO has obtained the Veteran's service treatment records, as well as VA and private treatment records. The Veteran was afforded a VA medical examination in July 2017. 38 C.F.R. § 3.159(c)(4) (2015); Stegall, 11 Vet. App. at 268. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the July 2017 VA examination report is thorough and adequate and provide a sound basis upon which to base a decision with regard to the issue adjudicated in this decision. The opinion, as a whole, consider all the pertinent evidence of record, to include the statements of the Veteran, and provide rationales for the opinions stated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion as to the issue of service connection for a bilateral knee disability has been met. 38 C.F.R. § 3.159(c)(4). Additional discussion of the adequacy of the June 2015 VA examination is discussed in the Service Connection for a Bilateral Knee Disability section below. Hence, VA has provided assistance to the Veteran as required under 38 U.S.C. §§ 5103a, 5103A, 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the appeal. Mayfield v. Nicholson, 444 F. 3d 1328 (Fed. Cir. 2006). As such, no further notice or assistance is required to fulfill VA's duties to notify and assist the Veteran in the development of the appeal adjudicated herein. Service Connection - Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). In this case, tricompartmental degenerative atrophy ("hereinafter" osteoarthritis), is a "chronic disease" listed under 38 C.F.R. § 3.309(a) (2017); therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303 (b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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 as such in service, 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). In addition, the law provides that, 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. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (West 2012); 38 C.F.R. §§ 3.307, 3.309(a). 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. In rendering a decision on appeal, the Board must also 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. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Service Connection for a Right Knee Disability The Veteran contends the current osteoarthritis of the bilateral knees is a result of active military service. Specifically, the Veteran contends an injury sustained on active duty when he slipped and fell resulted in the current osteoarthritis of the bilateral knee. After a review of all the evidence of record, lay and medical, the Board first finds that the Veteran has a currently diagnosed bilateral knee disabilities, including osteoarthritis of the knees. In April 2009, the Veteran filed for service connection for a bilateral knee disability. The Veteran indicated that while in service, he fell aboard his ship and hurt his knees. The Veteran's entrance and exit examinations are silent for any knee disabilities. The service treatment records contain no complaints or treatment for any knee disabilities. May 1992 private treatment notes indicate the Veteran had recurrent knee pain that was successfully treated with steroid injections and Naprosyn. The Veteran reported his knee pain began after a skiing accident and that left knee pain reoccurred after a fall in 1991. The Board notes the Veteran was given a booklet on osteoarthritis but no diagnostic studies were performed and the Veteran was not diagnosed with osteoarthritis at the time. The treatment notes also indicate the Veteran reported right knee pain a year earlier. On examination, the Veteran had no limitation of motion and no pain on passive motion. He had no instability, crepitation, effusion, or synovial thickening. April 2009 VA treatment notes indicated the Veteran had knee pain had resolved with Relafen. The VA treatment note further indicated the Veteran had a knee effusion in 1991. In January 2010, the RO denied the Veterans claim for a bilateral knee disability. This appeal followed. A June 2011 MRI showed tricompartmental degenerative atrophy in the Veteran's knees. The MRI also showed abnormal morphology of the medial meniscus, which was likely the result of a prior partial meniscectomy or remote tear. In November 2016, the Veteran provided testimony in support of the claim. The Veteran reported that while in service, he slipped on the wet deck of ship and injured both his knees. The Veteran also clarified that the May 1992 treatment note that indicated he injured his knees skiing was incorrect, and that he had reinjured his knees after the in-service injury. The Veteran reported his knee pain had continued to increase as he aged. In July 2017, the Board remanded the claim for VA examination. On remand, VA treatment records were associated with the claims file that show continued bilateral knee treatment. In July 2017, the Veteran underwent a VA examination to determine the etiology of any bilateral knee disabilities. The Veteran reported injuring his knees during service when he slipped coming out of a gun mount. The VA examiner diagnosed the Veteran with bilateral arthritis of the knees, osteophytes, cartilage loss, an abnormal bone marrow signal, and a medial meniscus tear. The VA examiner opined the Veteran's bilateral knee disability was less likely than not caused by any event in service, to include the Veteran's fall. The rationale provided was that the Veteran's reported fall in service was not likely to cause ongoing problems and the Veteran worked as a painter for many years after service and medical records indicate that may be the cause of his knee pain. While the Veteran has reported he experienced bilateral knee pain in service resulting from an injury, the service treatment records do not reflect a chronic disease of the bilateral knees in service as defined under 38 C.F.R. § 3.303(b), including chronic symptoms of osteoarthritis of the bilateral knees during service. The chronicity rule does not mean that any manifestation of joint pain in service will permit service connection of osteoarthritis of the bilateral knees first shown as a clear cut clinical entity, at some later date. Rather, 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." See 38 C.F.R. § 3.303(b). In this case, the Veteran has reported knee pain following a fall in service. On the Veteran's November 1970 Report of Medical Examination, he was found to have normal lower extremities. The first documented report of knee pain in the record is the May 1992 physical therapy report where the Veteran had full range of motion and no diagnostic studies were performed. The first diagnosis of degenerative changes in the knees are found in the June 2011 VA MRI. Accordingly, the Board finds that the symptoms reported by the Veteran following the reported in-service injury do not establish chronic symptoms of osteoarthritis of the bilateral knees. The Board next finds that symptoms of the Veteran's osteoarthritis of the bilateral knees have not been continuous since service separation and did not manifest within one year of service separation, including to a compensable degree. See 38 C.F.R. § 3.309(a). The evidence in this case shows that there are over a decade between service separation in November 1970 and the first complaint of a bilateral knee disability in May 1992 when the Veteran reported bilateral knee pain. See Buchanan v. Nicholson, 451 F.3d 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and complaint of a claimed disability is one factor to consider as evidence against a claim of service connection). While the Veteran initially filed a claim for benefits in April 1972 (for a body/skin rash), he did not mention back problems or file a claim for service connection for a back disability until April 2009. The Board acknowledges that symptoms, not treatment, are the essence of any evidence of continuity of symptomatology; however, in this case, in April 1972, the Veteran filed a claim for benefits, but did not mention any knee symptoms. This suggests to the Board that there was no pertinent knee symptomatology at that time. See Fed. R. Evid. 803 (7) (indicating that the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (stating that VA may use silence in the service treatment records as evidence contradictory to a veteran's assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred) (Lance, J., concurring); AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing and applying the rule that the absence of a notation in a record may be considered if it is first shown both that the record is complete and also that the fact would have been recorded had it occurred, although holding that a veteran's failure to report an in-service sexual assault to military authorities may not be considered as relevant evidence tending to prove that a sexual assault did not occur because military sexual trauma is not a fact that is normally reported); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (the absence of a notation in a record may only be considered if it is first shown both that the record is complete and also that the fact would have been recorded had it occurred). While inaction regarding filing a claim is not necessarily indicative of the absence of symptomatology, where, as here, a veteran takes action regarding another claim, it becomes reasonable to expect that he or she is presenting all issues for which he or she is experiencing symptoms that the veteran believes are related to service. The Veteran demonstrated that he understood the procedure for filing a claim for VA compensation, and he followed that procedure in another instance where he believed he was entitled to that benefit. In such circumstances, it is more reasonable to expect a complete reporting than for certain symptomatology to be omitted. Thus, the Veteran's inaction regarding a claim or mention of a bilateral knee disability, when viewed in the context of his action of making another claim for compensation, may reasonably be interpreted as indicative of the lack of knee symptomatology at the time he filed the 1972 claim. Because over a decade passed between service separation and the first evidence of a bilateral knee disability, and because the medical evidence of record does not support a finding that the Veteran experienced continuous symptoms of osteoarthritis of the bilateral knee after service separation, the weight of the evidence is against finding that there were continuous symptoms of osteoarthritis of bilateral knee since service (to meet the presumptive service connection criteria at 38 C.F.R. § 3.303(b)), to include to a compensable degree within the first year after service separation). While the Veteran has competently reported that he purposefully did not report bilateral problems because he thought they would pass, the Board notes that physical examinations of the knee consistently described it as normal. As such, the evidence also does not show that the Veteran's osteoarthritis of the bilateral knee a manifested to a compensable degree (i.e., at least 10 percent) within one year of service separation in 1970; therefore, presumptive service connection under the provisions of 38 C.F.R. §§ 3.307 and 3.309 for arthritis manifesting to a degree of 10 percent within one year of service is not warranted. On the question of direct nexus between a current bilateral knee disability and service, the Board finds that the weight of the evidence is against the finding that the Veteran's bilateral knee disability, including osteoarthritis, is causally related to the reported in-service fall injury. The July 2017 VA examiner opined that the Veteran's bilateral knee degenerative joint disease was not caused by his military service. The rationale provided was that there was no objective evidence that the condition began in service. The VA examiner further noted that a reported fall in service was not likely to cause ongoing problems and the Veteran worked as a painter for many years after service and medical records indicate that may be the cause of his knee pain. The July 2017 VA physician had adequate information on which to base the medical opinion and provided an adequate rationale for the conclusion that is consistent with the facts in this case and is based on medical principles. For these reasons, the Board affords the July 2017 VA examiner's medical opinion great probative weight. The Veteran has asserted that the current bilateral knee disability is causally related to service. However, under the facts of this case, as a lay person, he does not have the requisite medical expertise to be able to render a competent opinion regarding the cause of the complex knee disability. The etiology of the bilateral knee disability in question is a medical question dealing with the origin and progression of the Veteran's musculoskeletal system, osteoarthritis, are diagnosed primarily on objective clinical findings, including MRI findings and specialized testing. Thus, while the Veteran is competent to relate some symptoms of a bilateral knee disability that he experienced at any time, including pain, under the specific facts of this case, he is not competent to opine on whether there is a link between the current, specifically diagnosed bilateral knee disability and active service because such an opinion regarding causation requires specific medical knowledge and training. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (holding that ACL injury is too "medically complex" for lay diagnosis); King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2009) (holding that it was not erroneous for the Board to find that a lay veteran claiming service connection for a back disorder and his wife lacked the "requisite medical training, expertise, or credentials needed to render a diagnosis" and that their testimony "could not establish medical causation nor was it a competent opinion as to medical causation"); Clyburn v. West, 12 Vet. App. 296, 301 (1999) (holding that a veteran is not competent to relate currently diagnosed chondromalacia patellae or degenerative joint disease to the continuous post-service knee symptoms); Savage v. Gober, 10 Vet. App. 488, 496-97 (1997) (requiring that a veteran present medical nexus evidence relating currently diagnosed arthritis to in-service back injury). Furthermore, as stated above, the Veteran's osteoarthritis was not chronic in service, did not manifest during service or to a compensable degree within a year after service separation, and its symptoms were not continuous since service. The July 2017 VA examiner opined that it was less likely that the Veteran's bilateral knee disability was attributable to service and provided a sound rationale for the medical opinion that is consistent with the evidence and the Board's findings in this case. Thus, the weight of the evidence is against a finding that a bilateral knee disability was incurred in or otherwise caused by active service. Based on the evidence of record, the weight of the competent and credible evidence demonstrates no relationship between the Veteran's current bilateral knee disability and active duty service, including no credible evidence of chronic symptoms of osteoarthritis of the bilateral knee to a compensable (10 percent) degree within one year of service separation, or continuity of symptomatology of osteoarthritis of the bilateral knees since service. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for a bilateral knee disability on a direct basis, as well as presumptively as a chronic disease for osteoarthritis of the bilateral knees and the appeal must be denied. Because the preponderance of the evidence is against the appeal, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER Entitlement to service connection for a bilateral knee disability is denied. ____________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs