Citation Nr: 0721451 Decision Date: 07/17/07 Archive Date: 08/02/07 DOCKET NO. 04-02 203 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for right knee disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The appellant served on active duty from February 1949 to June 1953. This matter came before the Board of Veterans' Appeals (the Board) on appeal from a December 2002 rating decision of the Phoenix, Arizona, Department of Veterans Affairs (VA) Regional Office (RO). FINDING OF FACT Competent evidence has not been presented linking the onset of post service osteoarthritis and a right knee injury more than 30 years earlier in service; and there is no evidence of continuity of symptomatology. CONCLUSION OF LAW A right knee disability was not incurred in or aggravated by service, nor was arthritis shown within the one year presumptive period following service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309(a) (2006). REASONS AND BASES FOR FINDING AND CONCLUSION I. VCAA The Veterans Claims Assistance Act of 2000 (VCAA), (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002)), imposes obligations on VA in terms of its duty to notify and assist claimants. Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2005); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA must inform the claimant of any information and evidence not of record that (1) is necessary to substantiate the claim as to all five elements of the service connection claim (including degree of disability and effective date of disability (See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); (2) VA will seek to provide; and (3) the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); Quartuccio, supra. at 187; 38 C.F.R. § 3.159(b) (2005). As a fourth notice requirement, VA must "request that the claimant provide any evidence in the claimant's possession that pertains to the claim." 38 C.F.R. § 3.159(b) (1); see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Notice should be provided "at the time" that VA receives a completed or substantially complete application for VA-administered benefits. Pelegrini at 119 (2004). The Board notes that this case was remanded in June 2006 for compliance with the VCAA requirements. Subsequently, VA sent the appellant a VCAA letter dated July 2006. This letter essentially complies with statutory notice requirements as outlined above. Specifically, the appellant was advised of the need to submit evidence of a relationship between his claimed disability and the in-service injury. VA has also satisfied its duty to assist the appellant under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. Service medical records, service personnel records, and treatment records have been associated with the claims folder. Also, VA provided the appellant a video conference hearing in April 2006. There is no indication that there is any additional relevant evidence to be obtained either by the VA or by the appellant, and there is no other specific evidence to advise him to obtain. See Quartuccio v. Principi, 16 Vet. App. 183 (2002) (holding that both the statute, 38 U.S.C. § 5103(a), and the regulation, 38 C.F.R. § 3.159, clearly require the Secretary to notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by the Secretary). Accordingly, the Board concludes it should proceed, as specific notice as to what evidence the appellant could or should obtain was provided and no additional pertinent evidence was submitted. The claimant has had sufficient notice of the type of information needed to support the claim and the evidence necessary to complete the application. Therefore, the duty to assist and notify as contemplated by applicable provisions, including VCAA, has been satisfied. As such, the Board finds that the development requirements of the VCAA have also been met. VA has done everything reasonably possible to assist the claimant. Accordingly, appellate review may proceed without prejudice to the claimant. See Bernard v. Brown, 4 Vet. App. 384 (1993). To the extent that VA in anyway has failed to fulfill any duty to notify and assist the appellant, the Board finds that error to be harmless. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2001) (The "harmless error doctrine" is applicable when evaluating VA's compliance with the VCAA). Of course, an error is not harmless when it "reasonably affected the outcome of the case." ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998); see also Mayfield, supra. As all pertinent evidence obtainable by VA has been associated with the claims file, the Board finds that the duty to assist has been fulfilled and any error in the duty to notify would in no way change the outcome of the below decision. The Board also determines that a VA examination is not necessary. In disability compensation claims, the Secretary must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. Although the Board accepts that there was an in-service trauma and post-service disability, the veteran has not presented lay or medical evidence of recurrent symptoms of a disability that may be associated with the veteran's service. As noted below, the veteran has presented credible testimony regarding a remarkable gap between the in- service event and his symptoms. II. Service Connection Initially, the Board notes the appellant served during peacetime and wartime eras. However, he did not engaged in combat and he does not assert that his claimed knee disability is a result of combat. Therefore, the provisions of 38 U.S.C.A. § 1154(b) (West 2002) are not for application in this matter. Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Service connection basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303 (2006). 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303 (2006). Arthritis shall be granted service connection although not otherwise established as incurred in or aggravated by service if manifested to a compensable degree within one year following service in a period of war or following peacetime service on or after January 1, 1947. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.307(a) (3), 3.309(a) (2006). Establishing service connection generally requires (1) medical 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) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Hickson v. West, 12 Vet.App. 247, 253 (1999); 38 C.F.R. § 3.303. Under § 3.303(b), an alternative method of establishing the second and/or third Caluza element is through a demonstration of continuity of symptomatology. See Savage, 10 Vet.App. at 495-97; see also Clyburn v. West, 12 Vet.App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of postservice continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Savage, 10 Vet.App. at 495-96; see Hickson, 12 Vet.App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). Significant in caselaw is that lay persons are not competent to opine as to medical etiology or render medical opinions. See Grover v. West, 12 Vet.App. 109, 112 (1999); Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet.App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet.App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet); Espiritu, 2 Vet.App. at 494-95 (lay person may provide eyewitness account of medical symptoms). The Court has emphasized that "symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet.App. at 496 (citing Wilson v. Derwinski, 2 Vet.App. 16, 19 (1991)). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). Barr v. Nicholson, No 04-0534 (June 15, 2007). Factual Background Service medical records show findings for a right knee scar on both service entrance examination dated February 1949 and EAD examination dated May 1951. Service personnel records show that the appellant was involved in auto accident in May 1949, wherein his vehicle collided with another, and he sustained lacerations about the head and a cerebral concussion. He was hospitalized at a private facility overnight and then transferred to Walter Reed General Hospital. A February 1950 report of medical examination shows no significant abnormalities of the bones, joints, muscles, feet, and gait. Service separation examination dated June 1953 shows normal clinical evaluation. Reserves periodic examination report dated July 1964 shows normal clinical evaluation, and the history portion of that examination shows a history of right knee laceration in 1942 but no knee complaints. In December 2000, the appellant filed a claim for service connection for right "knee condition." Private treatment records from R.L, M.D., reflect that the appellant presented for an initial examination of the right knee in April 2000. He complained of a 10 year history of right knee symptoms with pain and limping worse over the past 3 months on the right side. Past medical history was silent for an in-service accident with injury to the knee, but past surgical history noted a repair of a laceration of the right knee. The appellant was diagnosed with advanced osteoarthritic changes of both knees and total right knee replacement surgery was recommended. On evaluation in May 2000, the appellant denied any history of significant musculoskeletal problems. The diagnosis was advanced osteoarthritis of the right knee with left knee involvement. The appellant underwent total right knee replacement surgery in May 2000. Treatment notes dated May through December 2000 reflect follow-up for total knee replacement surgery. Private treatment records from Desert Bone and Joint Surgeons show that the appellant underwent total left knee replacement surgery in January 2002. A May 2002 treatment note from P.S., M.D., concerning left knee replacement surgery, reads as follows: H[redacted] says he was involved in a traumatic incident in the Army [sic] approximately 40-45 years ago where he injured his knee in a jeep accident. He subsequently went on to have total knee replacement on the right side due to degenerative changes. H[redacted] asked me if the degenerative changes could have been caused by the injury in the jeep 40- 45 years [ago] while he was in the service and I told him it could have helped cause posttraumatic arthritis in that right knee. In an April 2005 letter from Dr. P.S., the same statement was made. An undated lay statement from P.C. reflects personal knowledge that the appellant sustained a right knee injury during the May 1949 auto accident in service. In April 2006, a video conference hearing was conducted. The appellant explained that he sustained a laceration to the inside of the right knee as a child, which was unrelated to his current knee disability. He testified that his right knee was injured during a car accident in service, May 1949. The appellant indicated that he first started having problems with his knee in 1985 during 18 holes of golf, which he described as swelling. He denied having knee problems prior to the 1980's. Analysis The appellant seeks service connection for right knee disability. He reports that he injured his right knee during an auto accident in May 1949. Service records support that the appellant was involved in an auto accident in May 1949 and, although there is no medical evidence of a knee injury, the Board finds that the appellant's testimony and the lay statement of record are credible with respect to the incurrence of a right knee injury during the May 1949 auto accident. Notwithstanding the presence of credible evidence of the incurrence of a right knee injury, the Board finds that competent evidence, medical, of a nexus between the in- service injury and the present right knee disability has not been presented. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995). The appellant argues that a nexus exists; however, he is not competent to provide a medical opinion as to the cause of his current knee disability. Bostain v. West, 11 Vet.App. 12, 127 (1998), citing Espiritu v. Derwinski, 2 Vet.App. 492 (1992); see also, Routen v. Brown, 10 Vet.App. 183, 196 (19997)("a layperson is generally not capable of opining on matters requiring medical knowledge."). Additionally, the appellant has submitted a statement from Dr. S to support the alleged causal relationship. However, the Board finds that this statement has diminished probative value because it is speculative in nature, suggests more than a single cause, and lacks a rationale. Specifically, the physician states that the auto accident injury to the right knee "could have helped cause" the degenerative changes (arthritis) of the right knee. The physician's opinion appears to address a generic relationship between knee injury and arthritis without any degree of certainty such that, under the facts of this case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated medical opinion. Additionally, the Board observes that there is no evidence of continuity of symptomatology from the time of the auto accident in service to the present. Service medical record are silent for complaints or findings for abnormal right knee pathology, and the appellant reports the onset of right knee problems beginning in the 1980's, which is more than 30 years after the claimed in-service injury. Lastly, arthritis is not shown during the one year following service separation. The appellant was separated from service in 1953 and arthritis is first documented in 2000, well beyond the presumptive period for service connection. See 38 C.F.R. §§ 3.307(a) (3), 3.309(a) (2006). In weighing the evidence of record, the Board concludes that the preponderance of the evidence is against service connection for right knee disability. Absent a relative balance of the evidence, the evidence is not in equipoise and the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). The appellant testified that his knee problems began in the 1980's, and has attempted to link his right knee problems to service. His statements and testimony do not establish continuity of symptomatology. Under such circumstances, neither a VA examination nor a VA opinion is required. Duenas v. Principi, 18 Vet. App. 512 (2004). ORDER Service connection for right knee disability is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs