Citation Nr: 1808889	
Decision Date: 02/12/18    Archive Date: 02/23/18

DOCKET NO.  17-11 888	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1. Entitlement to service connection for a left knee disability.

2. Entitlement to service connection for a right knee disability.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

A. Marsh II, Associate Counsel





INTRODUCTION

The Veteran served on active duty from August 1953 to May 1984.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, TX.

By way of background, the RO denied entitlement to service connection for a left knee disability, right knee disability, and several other claimed disabilities in the February 2015 rating decision. The Veteran filed a Notice of Disagreement as to all issues in March 2015, but subsequently withdrew multiple issues in a December 2016 written correspondence. The Veteran timely perfected his appeal as to only a left knee and right knee disability by way of a VA Form 9 filed in February 2017. Thus, no other issues are in appellate status. 

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).


FINDINGS OF FACT

1. The Veteran's right knee disability was not incurred in service, and arthritis was not manifested within the one year presumptive period.

2. The Veteran's left knee disability was not incurred in service, and arthritis was not manifested within the one year presumptive period.


CONCLUSIONS OF LAW

1. The criteria for service connection for a left knee disability have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).

2. The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).  

The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board).

The Board has reviewed all of the evidence in the Veteran's claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000).




II. Service Connection

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or preexisting disease or injury aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge 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).

Service connection for certain chronic diseases, such as arthritis, may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331   (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017).

The Veteran contends that he has right and left knee disabilities that are related to service. 

The Veteran's service treatment records indicate that he was treated multiple times for fluid in both knees during service. Additionally, the Veteran was diagnosed with bursitis in both knees in April 1959. An April 1959 left knee x-ray report noted no evidence of fracture or other bone and joint pathology.  A December 1960 left knee x-ray report noted no significant abnormality.  The March 1984 separation examination report shows that the Veteran denied "trick" or locked knee and the clinical evaluation of the lower extremities was normal.  At separation, the Veteran filed a claim for compensation for residuals of fluid in the knees, which was ultimately denied by a July 1984 rating decision.

The Veteran's post-service treatment records are absent of any complaints or treatment for any knee disability until August 2002, when the Veteran was treated for fluid in his right knee. At this time, the Veteran was diagnosed with osteoarthritis in his right knee. The Veteran was not treated for or diagnosed with any left knee disability at that time.

The Veteran was afforded a VA examination in April 2017. The Veteran described stiffness and pain surrounding both knee caps when bending his knees, as well as aggravation in the knees from prolonged walking. At this time, the examiner diagnosed the Veteran with arthritis in both the left and right knee. The examiner opined that the Veteran's current claimed left and right knee arthritis was less likely than not (less than 50% probability) incurred in service or caused by the Veteran's bursitis diagnosed in service. The examiner based his opinion on the absence of any diagnoses of arthritis during service in either knee. Additionally, the examiner cited that the medical records were silent for any left knee disability post-service and silent for any right knee disability until August 2002.  

In this case, the VA examination is based on a thorough review of the record, as the examiner cited pertinent medical history involving the Veteran's in service treatment and bilateral diagnoses of bursitis, as well as the Veteran's post-service treatment records. Additionally, as the opinion was supported by a well-reasoned rationale and examination of the Veteran, the Board finds that the opinion is entitled to significant probative weight as to the issue of a nexus. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008).

The Board notes the Veteran's lay statements concerning his bursitis diagnosed in service, which he contends ultimately caused his current claimed left and right knee arthritis. The Veteran, while competent to report his symptoms both current and past, as a lay person is not competent to associate his right and left knee arthritis with bursitis diagnosed in service. That is, the Veteran is not competent to opine on matters such as the etiology of his current disabilities. Such opinion requires specific medical training and is beyond the competency of the Veteran or any other lay person. In the absence of evidence indicating that the Veteran has the medical training to render medical opinions, the Board must find that his contentions regarding the etiology of his right and left knee arthritis are of minimal probative value, and are outweighed by the probative objective evidence of record which is absent a finding of such. See also 38 C.F.R. § 3.159(a)(1) (2017) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Accordingly, the statements offered by the Veteran in support of his own claim are not competent evidence of a medical nexus between the current disability and service.

The Board also notes that the Veteran is claiming continuity of symptoms since service. There is no indication in the medical evidence of record that the Veteran was diagnosed with arthritis or any other chronic disability listed in 38 C.F.R. § 3.309(a), during his military service or for many years thereafter. The Board has considered that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Additionally, the Board recognizes that as with 'chronic disease' shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). Crucially, the evidence does not document a diagnosis of arthritis or other chronic right or left knee disability either in service or until many years after discharge. Walker, 708 F.3d at 1331). As noted above, the evidence shows treatment for bursitis in service, but there was no finding of arthritis and the clinical evaluation of the lower extremities was normal at the time of separation.  Accordingly, the Board finds that the contentions of the Veteran regarding chronic right and left knee symptomatology dating from service are less probative than the findings of the April 2017 VA examiner who considered these lay assertions and evidence of record including the service treatment records, in rendering a negative nexus opinions.

Although the Veteran has established a current right and left knee disability, the preponderance of the evidence weighs against a finding that the Veteran's right and left knee disabilities were incurred in service. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied.

 
ORDER

Entitlement to service connection for a left knee disability is denied.

Entitlement to service connection for a right knee disability is denied.



____________________________________________
K. J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs