Citation Nr: 1815209 Decision Date: 03/13/18 Archive Date: 03/19/18 DOCKET NO. 10-06 676 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a right knee disability, to include as secondary to service-connected degenerative joint disease (DJD) of the left knee. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Watson, Associate Counsel INTRODUCTION The Veteran served on active duty from April 2003 to October 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision the Department of Veteras Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, issued in April 2009. In March 2017, the Board remanded the claim to ensure compliance with its previous February 2016 remand. Now, the Board finds the RO has substantially complied with the remand. Stegall v. West, 11 Vet. App. 268 (1998). Although the Veteran requested a hearing in February 2010, no hearing has been held because the Veteran has been incarcerated in Oklahoma since first indicating a desire for a hearing, and the Veteran cannot travel to a VA facility to testify, and it is apparent the facility can not accommodate a video hearing. In September, October and December 2015, the Board sent letters to the Veteran and his accredited representative to advise that a hearing is not necessary to adjudicate the claim, and that the Board may receive written statements; or the representative may appear to represent the incarcerated Veteran before the Board. VA did not receive a further request for a hearing, and the representative filed Appellant's Post-Remand Briefs in January 2017 and January 2018. FINDINGS OF FACT A right knee disability was not shown in service or within the first post-service year, and has not been shown related to a disease or injury of service origin, or to have been caused or aggravated by a service-connected left knee disability. CONCLUSION OF LAW The criteria for entitlement to service connection of a right knee disorder, to include as secondary to a service-connected left knee disabilty, have not been met. 38 U.S.C. §§ 1110, 1131, 1153, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.306, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VCAA 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 beyond the lack of a VA examination due to his incarceration, 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). The Board finds that all notices required by implementing regulations were furnished to the Veteran and that no useful purpose would be served by delaying appellate review to send out additional notice letters. VA has also satisfied its duty to assist the Veteran in the development of the claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). In March 2017, VA offered and scheduled a VA examination to the Veteran to determine etiology of his right knee disability, but the Veteran was unable to present to the examiner because the State of Oklahoma is presently incarcerating him and would not transport him to the VA examination site. Moreover, the VA medical center in Oklahoma has indicated it does not have capacity to examine the Veteran's right knee disability at his correctional facility; and there is no evidence of record to show the State of Oklahoma maintains similar capacity on a fee basis. VA has otherwise obtained the Veteran's service records, post-service VA treatment records, identified private treatment records, and his filed statements, including briefs from his accredited representative who indicated to proceed to adjudicate the claim on other evidence. The record shows that the Veteran's service treatment records (STR) and correctional treatment records have been obtained and associated with the claims folder. In June 2017, the Veterans Benefits Administration (VBA) faxed a request to the Cimmarron Correctional Facility, which returned a record dated February 2017 from its Chronic Clinic, that had treated the Veteran. The Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence necessary adjudicate the claim fairly that has not been obtained. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Service Connection - Right Knee To establish a right to compensation for a present disability on a direct basis, a Veteran must show: (1) evidence of a current disability; (2) medical, or in certain circumstances, lay 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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be granted on a presumptive basis for certain chronic diseases, if they manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In order to show a 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." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b). In addition, a disability proximately due to or the result of a service-connected injury or disease shall be service connected. 38 C.F.R. § 3.310 (2017). When service connection is thus established for a secondary condition, the secondary condition shall be considered part of the original condition. Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists, and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id. III. Analysis The Veteran has a current diagnosis of a right knee disability noted as arthralgia in his VA medical records prior to his incarceration. Thus, the first element of service connection is met. See Hickson above. As to the second Hickson element of service connection, the Veteran's service treatment records (STR) note a distinct right ankle sprain injury from running in May 2003. However, no further records appear to indicate more than acute injury, nor any impact on his right knee. Knees and feet, among other issues, were noted for pain in a July 2007 Report of Medical Examination; and in the July 2007 separation examination Report of Medical History, the Veteran reported he had "hyperextended" his right knee a month before, and that it "gave out," and further said he was compensating with his left side, though nothing more is noted. Thus, the second element of service connection is met. As to the third element of service connection, the Veteran has not submitted any medical or scientific evidence that shows a positive association or nexus between his current right knee disorder and his service. A February 2017 medical record from the Cimmarron Correctional Facility notes the Veteran walking and exercising without difficulty; and further diagnoses of of HTN, HPL and pre-diabetes only, but no knee diagnoses, as it is silent as to any mention of knee disabilities, disorders or problems. Based on the foregoing, the Board finds that element (3), to show a medical link between the Veteran's current claimed right knee disorder and his service, has not been shown. As such, the Board finds that service connection on a direct basis is not warranted for a right knee disability. Although positive medical evidence is generally necessary for a nexus to service, lay evidence can also be sufficient to show continuity of symptoms after service, as a foundation for a nexus opinion, or to link chronic in-service symptoms to the same diagnosed current disability, or, in some cases, as a substitute for a nexus. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In short, the Board cannot determine that lay evidence as to diagnosis and nexus lacks credibility merely because it is unaccompanied by contemporaneous medical evidence, but the Board can consider bias in lay evidence as well as conflicting statements and actions by the Veteran in weighing credibility. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). However, the Board is not free to substitute its own judgment for that of such a medical expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). As to the theory of presuming service connection of certain chronic conditions, the Board here notes the Veteran's right knee diagnosis of arthralgia is not among those that 38 C.F.R. § 3.309(a) identifies; and therefore the Board does not further evaluate this theory since it cannot apply to the diagnosed condition. As to the Veteran's descriptions of his right knee, the Veteran's personnel amd medical records reveal he served in Operation Iraqi Freedom, and witnessed an improvised explosive device (IED) at least once strike a vehicle ahead of him, causing him to jump and land on his knees, as he reported to a VA medical examiner in December 2010. In the case of combat Veterans, "Section 1154(b) has been interpreted to reduce the evidentiary burden for combat veterans with respect to evidence of in-service incurrence or aggravation of an injury or disease[.]" Dalton v. Nicholson, 21 Vet. App. 23, 37 (2007). However, this does not remove the requirement for the Veteran to establish a nexus between that in-service event and his or her current disability. Id. Under 38 U.S.C. § 1154(b), "any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service-connection in each case shall be recorded in full." 38 U.S.C. § 1154(b) (2012). A right knee injury would be consistent with leaping from a vehicle in combat, as the Veteran has reported; and therefore his statements are competent and credible to show an incident or event in service, and the Board lends them great weight. Turning to the presumption in favor of chronic diseases and continuity of symptomatology, the preponderance of the evidence is against a finding that the disability manifested either in-service or within the first post-service year. Id.; 38 C.F.R. §§ 3.303(b), 3.307; Walker v. Shinseki, 708 F.3d 1331 (2013). The Board notes that the Veteran's service treatment records and separation examination are silent for any complaints or diagnoses of a right knee disability while in service. For example, an August 2005 pre-deployment health assessment is negative for any health problems during service. Moreover, post-service treatment records (STR) are silent for any indication of right knee pain or the presence of a disability within the first post-service year, prior to August 2009, when the Veteran complained of right knee pain to VA and received a fitted knee brace. And while the Veteran has stated pain arose in his knees in leaping from a truck, there is no mention of the event in his STRs. For the showing of chronic disease in service, a combination of manifestations must sufficiently identify the disease entity, and sufficient observation must establish chronicity at the time, as distinguished from merely isolated findings. See 38 C.F.R. § 3.303(b) (2017). Therefore, although the Veteran has complained of right knee pain after service, the Board cannot find that the Veteran's right knee disability was chronic in or immediately following service. Moreover, when chronicity in service is not adequately supported, service connection may be established by a showing of continuity of symptomatology after discharge. See 38 C.F.R. § 3.303(b) (2017). Here, the Veteran has not reported continuous symptoms since service, but instead has reported acute pain. In July 2009, the Veteran complained of right knee pain, for which he took Motrin, but nothing more is noted. And a February 2011 VA nurse noted the Veteran complained of his right foot and right knee, but no other complaints appear or details. Likewise, another February 2011 note reports the Veteran complaining of his right foot, but no mention of his right knee. The Board also notes the Veteran reported a knee sprain during his service entrance examination in April 2003, but his STRs do not identify which knee. To the extent that the Veteran contends he has experienced right knee pain symptoms since service, the Board initially notes that he is competent to report such symptoms. See Jandreau, 492 F.3d at 1377. However, after reviewing the record in its entirety, the Board does not find the Veteran's assertions as to his continued symptomatology outweigh the lack of evidence to show a nexus to his service. Accordingly, continuity of symptomatology is not shown. Turning to the Veteran's specified alternative assertion - entitlement to service connection on a secondary basis to his service-connected left knee - the remaining question is whether the medical evidence supports, or is at least in equipoise, as to the Veteran's assertion that his current claimed right knee disability is proximately caused or aggravated by his service-connected left knee or other disabilities. See 38 C.F.R. § 3.310. Here, the Veteran has not alleged a direct connection between his right knee disorder and an event experienced in combat or service; but instead has specifically alleged secondary service connection to his service-connected left knee disability. However, the Board finds that the preponderance of competent evidence of record weighs against finding that the Veteran's right knee disorder is proximately caused or aggravated by his service-connected left knee disability because there is no competent positive etiological opinion of record, and the Board may not substitute its own. Moreover, the Veteran has not been shown to be competent to make such an opinion regarding medical etiology. See Jandreau, 492 F.3d at 1377. Because the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a right knee disability on appeal, the benefit of the doubt provision does not apply, and the claim must be denied. See 38 U.S.C. § 5107 . ORDER Entitlement to service connection for a right knee disability is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs