Citation Nr: 1820455 Decision Date: 04/06/18 Archive Date: 04/16/18 DOCKET NO. 14-23 076 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for a right knee disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Z. Maskatia, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1967 to October 1967, with additional periods of active duty for training (ACDUTRA) in the Oklahoma Army National Guard from May 1965 to October 1965. This matter comes before the Board of Veterans Appeals (Board) on appeal from an October 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The Board remanded this case in August 2016 because the issues of entitlement to service connection for a right knee disability, and entitlement to service connection for tinnitus, required further development. However, in a September 2016 rating decision, the Veteran was granted service connection for tinnitus. This represents a full grant of the benefit sought, and this issue is no longer before the Board. See Shoen v. Brown, 6 Vet. App. 456, 457 (1994). FINDING OF FACT The Veteran's right knee disability is not etiologically related to service. CONCLUSION OF LAW The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 5103(a), 5103A, 1131, 1112, 1113 (2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C. §§ 5103, 5103A (2014) and 38 C.F.R. § 3.159 (2017). Here, the duty to notify was satisfied by way of letters to the Veteran. VA also has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of relevant treatment records and providing an examination when necessary. 38 U.S.C. § 5103A (2014); 38 C.F.R. § 3.159 (2017). This appeal was remanded by the Board in August 2016 for further development. Specifically, additional records were obtained and associated with the Veteran's claims file, and the Veteran was afforded VA examinations to obtain nexus opinions as to the Veteran's right knee claim. The Board finds that the examinations provided are adequate. The examiners reviewed the accurate history, considered lay statements, and provided clinical findings and diagnoses. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Thus, the Board finds that the agency of original jurisdiction (AOJ) substantially complied with the Remand orders, and no further action is necessary in this regard. Accordingly, the Board finds that all necessary development has been accomplished and all available evidence pertaining to the matter decided herein has been obtained. Hence, the Board is satisfied that the duty to assist was met. 38 U.S.C. § 5103A (2014); 38 C.F.R. § 3.159(c) (2017). Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the above-cited claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection The Veteran is seeking service connection for a right knee disability, diagnosed as mild degenerative joint disorder. The Veteran asserts that his disability was incurred during basic training when he squatted on a hard surface for firearm training. Based on the evidence of record, service connection is not warranted. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2014). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Certain chronic diseases are subject to presumptive service connection if manifested to a compensable degree within one year from separation from service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112 , 1113 (2017); 38 C.F.R. §§ 3.307 (a)(3), 3.309(a) (2017). Under 38 C.F.R. § 3.303 (b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology for diseases that qualify as a chronic disease listed in 38 C.F.R. § 3.309(a) (2016). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran may also be eligible for benefits based on any period of active duty for training (ACDUTRA) where he was disabled from disease or injury incurred in or aggravated in the line of duty, or any period of inactive duty for training (INACDUTRA) where he was disabled from injury, but not disease, incurred in or aggravated in the line of duty. 38 U.S.C.A. §§ 101(21), (22), (23), (24), 106, 1110, 1131 (West 2014); 38 C.F.R. §§ 3.6(a)-(d), 3.303(a) (2016); Harris v. West, 13 Vet. App. 509 (2000); Paulson v. Brown, 7 Vet. App. 466 (1995). As an initial matter, the Board notes the Veteran's symptoms during his period of ACDUTRA in 1965. However, given that his knee disability did not manifest after his release from ACDUTRA, or during his period of active service in 1967, it does not appear that the Veteran's knee symptoms were chronic in nature. Moreover, the presumption of soundness does not apply to periods of ACDUTRA. While the Veteran's March 1967 enlistment examination report states that the Veteran underwent a bilateral meniscectomy in 1963, it also states that upon examination, there were no signs of locking, effusion, or instability. Thus, the Veteran's knee disability was not noted on entry in his March 1967 entrance examination, within the meaning of VA regulations. Further, the Veteran's active service treatment records do not show complaints of, treatment for, or a diagnosis related to the Veteran's knee. Notably, the Veteran's PEB discharge document (which was related to another disorder), dated August 1967, indicates no treatment for a knee disability. There was no injury or trauma per se mentioned in the Veteran's active service treatment records. According to a September 2013 examination report, the Veteran did not recall X-ray testing on his knees while in service. In fact, the post-service evidence does not show treatment for a right knee condition until 2004, approximately thirty-seven years after the Veteran left service, when the Veteran underwent excision of a suprapatellar mass above the right knee. Indeed, the Veteran mentioned to his September 2011 examiner that his knee did not start bothering him until the 1980s, when he moved to Colorado. Accordingly, a continuity of symptoms is not shown based on the clinical evidence or the Veteran's statements. Next, service connection may also be granted when the evidence establishes a medical nexus between active duty service and current complaints. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's claimed disorder to active duty, despite his contentions to the contrary. Specifically, there is no clinical evidence of record indicating a relationship between his current knee disorder and his active duty service, nor has any treating physician opined that such a relationship exists. In arriving at this conclusion, the Board has also considered the statements made by the Veteran relating his knee disorder to his active service. The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). In this case, however, the Veteran is not competent to provide testimony regarding the etiology of his knee disorder. See Jandreau, 492 F.3d at 1377, n.4. Because a knee disorder is not diagnosed by unique and readily identifiable features, it does not involve a simple identification that a layperson is competent to make. Therefore, the unsubstantiated statements regarding the claimed etiology of the Veteran's knee are found to lack competency. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. ORDER Entitlement to service connection for a right knee disability is denied. ____________________________________________ B.T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs