Citation Nr: 1807533	
Decision Date: 02/06/18    Archive Date: 02/14/18

DOCKET NO. 15-08 865	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office in Indianapolis, Indiana


THE ISSUES

1. Entitlement to service connection for a right knee disorder.

2. Entitlement to service connection for a left knee disorder, to include as secondary to a non-service connected right knee disorder. 

3. Entitlement to service connection for a right foot disorder. 


REPRESENTATION

Appellant represented by:	Alexandra Jackson, Attorney


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

B. Cohen, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the U.S. Army from February 1966 to March 1966.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision of the Indianapolis, Indiana Regional Office (RO). 

In July 2014, the Veteran was afforded a hearing before a Decision Review Officer (DRO) at the RO. A hearing transcript is in the record. 

In September 2016, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge (VLJ). During the hearing, the VLJ engaged in a colloquy with the Veteran toward substantiation of the claims. Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A hearing transcript is in the record.

This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2) (2012) and 38 C.F.R. § 20.900(c) (2017). 


FINDINGS OF FACT

1. The Veteran is not presumed sound as to any preexisting right knee disorder. 

2. The Veteran's account concerning his right foot in-service injury is not credible.

3. The Veteran's preexisting right knee disorder was not permanently aggravated by his active service. 


5. The Veteran's left knee disorder, to include left knee strain and degenerative joint disease, was not caused by any incident of service or service-connected disorder.


CONCLUSIONS OF LAW

1. The criteria to establish service connection for a right knee disorder, to include internal derangement, torn medial meniscus, chronic injury to right medial collateral ligament, degenerative arthritis and degenerative joint disease, have not been met. 38 U.S.C. §§ 1110, 1111, 1153 (2012); 38 C.F.R. §§ 3.304(b), 3.306(b) (2017).

2. The criteria to establish service connection for a left knee disorder, to include left knee strain and degenerative joint disease, have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303(d), 3.310 (2017).

3. The criteria to establish service connection for a right foot disorder have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(d) (2017).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and to Assist

VA has a duty to notify claimants about the claims process and a duty to assist them in obtaining evidence in support of their claims. VA issued several notices to the Veteran, including a December 2010 and March 2012 notice which informed him of the evidence generally needed to support his claims; what actions he needed to undertake; and how VA would assist him in developing his claims. The December 2010 and March 2012 notices were issued to the Veteran prior to the September 2012 rating decision. All identified and available relevant documentation has been secured to the extent possible and all relevant facts have been developed. There remains no question as to the substantial completeness of the claims. 38 U.S.C. 
§§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). For these reasons, the Board finds that VA's duties to notify and to assist have been met.

II. Analyses

A. RIGHT KNEE

A Veteran who served after December 31, 1946, is presumed to be in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious and manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in the examination reports are to be considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b).

The presumption of soundness attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The provisions of 38 C.F.R. § 3.304(b) clarify that the term "noted" denotes "[o]nly such conditions as are recorded in the examination reports" and that "[h]istory of pre-service existence of conditions recorded at the time of examinations does not constitute a notation of such conditions." Crowe v. Brown, 7 Vet. App. 238, 245 (1994); see also Cotant v. Principi, 17 Vet. App. 116 (2003).

The Veteran had a right knee disorder upon his entry onto active duty and he is not therefore presumed to have then been in sound physical condition. In his February 1965 induction medical history report, the Veteran answered in the affirmative as to whether he once had or currently had a "trick" or locked knee. In the "physician's summary and elaboration of all pertinent data" section of the medical history report, the service medical examiner indicated that the Veteran wore a brace on his right knee and recently visited a doctor pertaining to his right knee. The noting of the right knee abnormality was confirmed by radiographic findings indicating minimal narrowing in the medial half of the Veteran's right knee, as noted in the Veteran's February 1965 service induction medical examination report. 

The Veteran did not report for basic training duty upon induction, and instead reported approximately a year later in February 1966. In his February 1966 pre-separation medical history report, the Veteran indicated that both knees were swollen and answered in the affirmative as to whether he had or currently has a "trick" or locked knee. 

The continued noting of the Veteran's right knee abnormality is evidenced by a February 16, 1966 service medical clinical record, noting that the Veteran had been inducted into the Army on February 3, 1966. The examiner reported that the Veteran had an "internal derangement of the right knee." The examiner noted that 5 days after the Veteran reported for duty (February 8), he was referred for a right knee orthopedic consultation, and it was the recommendation of the examiner at that time that the Veteran be separated from the service because of a right knee disorder that had existed prior to service entry. See also Consultation Sheet, Standard Form 516, dated 8 February, indicating "BCT (Basic Combat Training) arrived today." 

The reviewing examiner also recommended that the Veteran be separated due to a disorder that had pre-existed his service entry. The reviewing examiner diagnosed the Veteran with a torn cartilage of the medial meniscus and a chronic injury to the right medial collateral ligament in the right knee. The examiner noted that the Veteran had right knee swelling and indicated that he injured his right knee three years previously. 

In another February 1966 clinical record, the Veteran reported experiencing pain, aching and occasional locking in his right knee aggravated by prolonged activity. The Veteran was diagnosed with internal derangement, torn medial meniscus and chronic injury to the right medial collateral ligament in his right knee. The Veteran also reported that prior to service, he injured his right knee in 1963 and 1964. 

In February 1966, the medical board found that the Veteran's internal derangement, torn medial meniscus and chronic injury to the right medial collateral ligament in his right knee existed prior to service and was not aggravated by service. The Veteran was then discharged.  

Because the Veteran's pre-existing right knee disorder was noted upon induction, the Board's inquiry must focus on whether the disorder was aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004).

Under 38 U.S.C. § 1153, aggravation of a preexisting injury or disease is presumed where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. However, aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306(b). 

To support a finding of aggravation, the evidence must establish that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341 (Fed. Cir. 2002). 

The Veteran is not credible in his account of having injured his right knee during his initial service in-processing. He contends that while marching or running through a wooded area, his right foot was caught in a tree root which resulted in a twisting injury to his right knee and right foot. 

In the Veteran's service treatment records (STRs), no service department medical care provider mentioned any then-contemporaneous report by the Veteran, or any member of the Veteran's training cadre supporting the Veteran's current account. All of the service medical reports focused on the pre-existence of the right knee disorder. Had the Veteran then had an injury as he now alleges, it would have certainly been noted in his treatment records. AZ v. Shinseki, 731 F. 3d 1303, 1315 (Fed. Cir. 2013) (finding that the absence of an entry in a record may be considered evidence that a fact did not occur if the fact would have been recorded if present); Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (holding that silence in the STRs can constitute "contradictory" evidence weighing against the credibility of a claimant's testimony if the STRs are complete "in relevant part," and there is competent evidence that the claimed "injury, disease, or related symptoms would ordinarily have been recorded had they occurred").

These medical records are highly probative both as to the Veteran's subjective reports and their resulting objective findings. They were generated with a view towards ascertaining the Veteran's then-state of physical fitness and are akin to statements of diagnosis or treatment. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rationale that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care).

In December 2005, the Veteran underwent a private radiological examination. The Veteran reported experiencing right knee pain. The radiological report indicated degenerative change involving the femorotibial joint with narrowing of the medial compartment and marginal spur formation. No etiological opinion was provided.

In April 2010, the Veteran underwent private treatment with Ron Clark, M.D. The Veteran was diagnosed with bilateral knee advanced degenerative disease. Although Dr. Clark did not provide an etiological opinion, he indicated that the Veteran reported experiencing bilateral knee pain for "several decades" but cannot recall any specific injury. 

In a March 2011 letter written by Z.W. Sobol, M.D., Dr. Sobol indicated, in pertinent part, that he treated the Veteran's right knee between 1980 and 2010. Dr. Sobol diagnosed the Veteran with degenerative arthritis of the right knee. No etiological opinion was provided. 

In another March 2012 letter, Dr. Sobol indicated, in pertinent part, that he treated the Veteran's right knee since 1967. Dr. Sobol indicated that the Veteran reported an in-service torn medial meniscus in his right knee. Dr. Sobol opined that the Veteran's right knee arthritis was caused by service because a torn knee cartilage decreases the buffer effect on weight bearing surfaces which contributes to the onset of arthritis. However, this medical opinion is of little probative value because it does not account for the Veteran's pre-service right knee history. While the law does not require that an examiner review the claims file, in order for an opinion to be probative, the examiner must have an accurate and complete understanding of the Veteran's medical history. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  

In April 2012, the Veteran underwent private treatment. The Veteran reported bilateral knee pain. A physical examination of the right knee indicated swelling. The Veteran was diagnosed with right knee pain and degenerative joint disease. No etiological opinion was provided. 

In August 2012, the Veteran was afforded a VA examination. He was diagnosed with bilateral knee degenerative joint disease, right knee internal derangement, torn right medial meniscus in the right knee, chronic injury to right medial collateral ligament in the right knee and a right knee sprain. The examiner opined that the Veteran's preexisting right knee disorder was not permanently aggravated beyond its natural progression by service. The examiner explained that the Veteran's right knee degenerative joint disease resulted from aging. 

In December 2014, the Veteran was afforded another VA examination. He was diagnosed with bilateral knee strain, right knee meniscal tear, and bilateral knee degenerative arthritis. The examiner opined that the Veteran's preexisting right knee disorder was not permanently aggravated beyond its natural progression by service; rather, the worsening was a result of years of daily physical activities.

In a June 2016 letter written by G. Klaud Miller, M.D., Dr. Miller opined that the "injury to [the Veteran's] right knee" was caused by a "slip and fall" during service. In rendering his opinion, Dr. Miller relied on the Veteran's STRs, a June 2012 private treatment record, two buddy statements and the Veteran's personal statement. 

Dr. Miller's opinion is not probative because he erroneously attributed the Veteran's right knee in-service injury to a "slip and fall;" did not consider the Veteran's relevant medical history, including his previous VA examinations, and indicated that he did not personally examine the Veteran. Nieves-Rodriguez v. Peake, 22 Vet.App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); Guerrieri v. Brown, 4 Vet.App. 467 (1993) (observing that the evaluation of medical evidence involves inquiry into, inter alia, the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches). 

The Veteran's account of the in-service injury is not credible, and the opinion of Dr. Miller is not therefore competent as to the facts of record. A medical diagnosis is only as credible as the history on which it was based. Reonal v. Brown, 5 Vet.App. 458 (1993); see also Elkins v. Brown, 5 Vet.App. 474, 478 (1993); Swann v. Brown, 5 Vet.App. 229 (1993) (observing that a diagnosis "can be no better than the facts alleged by the appellant"). 

Statements from the Veteran's friends and family indicate that after discharge, they observed the Veteran's swollen right knee and observed the Veteran's difficulty with walking and bending. These statements are not probative to the question of aggravation. That the Veteran had knee pain at the time of his discharge is not at issue, and he may have had continuing symptoms after military discharge. However, resolution of the question of the worsening of an underlying disorder is an issue which requires informed and competent medical opinion. 

The preponderance of the evidence is against a finding of in-service aggravation. Not only is the Veteran's account of his right knee in-service injury not credible, but two VA examiners provided informed medical opinions that the Veteran's preexisting right knee disorder was not aggravated in service. Therefore, service connection is not warranted and the claim is denied.  
B. LEFT KNEE

Service connection may be granted for a current disability arising from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012). 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) (2017). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 

In his February 1966 pre-separation medical history questionnaire, the Veteran reported that "both" of his knees were swollen and he alleged that a "pinched nerve" was causing numbness in his left leg. However, there is no other mention in any of the Veteran's STRs pertaining to the left knee. 

A December 2005 radiology report indicated degenerative change in the femorotibial joint with narrowing of the medial compartment, marginal spur formation and no evidence of a fracture in the Veteran's left knee. 

As noted above, in April 2010, the Veteran underwent private treatment with Ron Clark, M.D. Dr. Clark indicated that the Veteran reported experiencing bilateral knee pain for "several decades" but cannot recall any specific injury. 

A June 2012 private treatment record indicated that the Veteran's left heel has "stressed" his left knee. No etiological opinion was provided.  

As noted above, in August 2012, the Veteran was afforded a VA examination. He was diagnosed with bilateral knee degenerative joint disease. The examiner opined that the Veteran's degenerative joint disease was not caused by service; rather, it resulted naturally due to age. 

A December 2012 radiology report indicated degenerative joint disease with osteoarthritic changes in the medial joint compartment and patellofemoral articulation. This radiology report also indicated that compared to the December 2005 radiology report, the Veteran had undergone significant change to his left knee. 

In his July 2014 written statement, the Veteran asserted that after his in-service right knee injury, he used his left knee while walking up a stairway to board an airplane, and as a result, twisted his left knee. The Veteran also asserted that he reported his left knee injury to the service medical examiners. Contrary to the Veteran's assertions, his STRs do not contain a notation as to his asserted left knee in-service injury. 

As noted above, in December 2014, the Veteran was afforded another VA examination. He was diagnosed with bilateral knee strain and bilateral knee degenerative arthritis. The examiner opined that the Veteran's left knee disorder was not caused by service. 

A preponderance of the competent and probative evidence is against a finding that the Veteran's left knee disorder was caused by service. The Veteran asserted that he reported his left knee injury to the service medical examiners; however, the STRs do not indicate an event or injury pertaining to the Veteran's left knee. In addition, in an April 2010 private treatment record, the Veteran was unable to recall whether he underwent an injury to his left knee. The August 2012 VA examiner opined that the Veteran's degenerative joint disease was not caused by service; rather, it resulted naturally due to age. 

Service connection is not warranted and the claim is denied. 

Service connection shall be granted on a secondary basis under 38 C.F.R. § 3.310 where it is demonstrated that a service-connected disorder caused or aggravated a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). 

In his November 2010 written statement, the Veteran asserted that due to his in-service right knee injury, he favored his right knee which resulted in arthritis in his left knee. 

Based on the Board's finding in this decision that service connection is not warranted for the Veteran's preexisting right knee disorder, the preponderance of the evidence is against the claim and secondary service connection is therefore not warranted for the Veteran's left knee disorder. 

C. RIGHT FOOT

As noted, the Veteran is not credible in his account of having injured his right foot during his initial service in-processing. He contends that while marching or running through a wooded area, his right foot was caught in a tree root which resulted in a twisting injury to his right knee and right foot. 

As indicated above, the STRs do not mention any then-contemporaneous report by the Veteran, or any member of the Veteran's training cadre supporting the Veteran's current account. All of the service medical reports focused on the pre-existence of the right knee disorder. Had the Veteran then had an injury as he now alleges, it would have certainly been noted in his treatment records. AZ, supra; Kahana, supra. The Board has noted the high probative value of service treatment records as discussed above. 

A December 2005 radiology report indicated degenerative change at the first metatarsophalangeal joint with joint space narrowing and marginal spur formation, calcaneal enthesophyte at the insertion of the plantar fascia and no evidence of a recent fracture. No etiological opinion was provided. 

In a July 2009 private treatment record, the Veteran reported a growth on the fourth toe of his right foot and was diagnosed with pinched callus and hammertoe deformity with underlapping fourth toe on the right foot. No etiological opinion was provided. 

In an August 2009 private treatment record, the Veteran underwent right foot surgery - tenotomy fourth toe on right foot with elliptical excision of lesion. 

In a July 2011, August 2011, September 2011, October 2011 and December 2011 private treatment record, the Veteran reported bilateral foot pain and was diagnosed with plantar fasciitis with heel spur and pronation right hallux limitus on his right foot. No etiological opinion was provided. 

In a March 2012 letter, Dr. Sobol diagnosed the Veteran with metatarsal phalangeal joint and opined that he is not sure whether the Veteran's in-service injury may have rendered his big toe joint more prone to arthritis. This medical opinion is of low probative value because it speculates on the issue of etiology. Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009) (a medical opinion is speculative when it uses equivocal language such as "may well be," "could," or "might"). 

Dr. Sobol's opinion is also not substantiated because the Veteran's account of the right foot in-service injury is not credible. A medical diagnosis is only as credible as the history on which it was based. Reonal, supra. 

In a December 2014 VA examination, the Veteran was diagnosed with hallux rigidus on his right foot. No etiology opinion was provided. 

The preponderance of the evidence is against a finding of service connection for a right foot disorder. The lack of documented details concerning the Veteran's right foot in-service injury in the STRs and the favorable buddy statements attesting to the Veteran's swollen right foot post-discharge does not substantiate the Veteran's account of an in-service right foot injury. Therefore, service connection is not warranted and the claim is denied.  

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ORDER

Service connection for a right knee disorder is denied.

Service connection for a left knee disorder is denied.

Service connection for a right foot disorder is denied. 



______________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs