06-21 628
06-21 628
| Board of Vet. App. | Aug 31, 2016Background
- Veteran served active duty (Jul 1968–Jun 1971) and Nebraska Army National Guard (periods Jul 1977–Jan 1979 and Jan 1981–Aug 1996) including ACDUTRA/INACDUTRA.
- Claims of service connection for right and left knee disabilities were denied by the RO and have been before the Board multiple times; Court remanded in 2013 via Joint Motion.
- Current diagnoses: bilateral total knee arthroplasty status post degenerative joint disease; VA found current disability established.
- Veteran alleges left knee injury in active duty (fall in Germany before separation) and right knee injuries during Guard training (early 1980s/1991); he asserts he sought treatment for both.
- Service treatment records (active and Guard) are silent for the claimed in‑service knee injuries where treatment would be expected; some private records note knee complaints but not tied to Guard training dates.
- February 2016 VA examiner reviewed records and opined veteran’s bilateral knee conditions are not caused by or aggravated by active service or Guard training; Board found that opinion probative and VA satisfied duty to assist.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection — left knee (active duty) | Left knee injured in Germany before separation; sought treatment and developed chronic knee disease | No contemporaneous service records corroborate injury; separation exam silent; VA medical evidence shows degenerative progression unrelated to service | Denied — in‑service incurrence not proven and nexus not established |
| Service connection — right knee (Guard ACDUTRA/INACDUTRA) | Right knee injured during Guard training (early 1980s/1991); received treatment during Guard service | Guard records lack line‑of‑duty or treatment entries for claimed incidents; private records note knee problems but not during training; veteran’s accounts inconsistent | Denied — in‑service incurrence not proven and nexus not established |
Key Cases Cited
- Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (lack of contemporaneous records may be weighed but does not automatically render lay evidence not credible)
- AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (Board may consider silence in records where documentation would be expected)
- Holton v. Shinseki, 557 F.3d 1362 (Fed. Cir. 2009) (elements required for service connection: present disability, in‑service incurrence/aggravation, and nexus)
- Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (limitations on lay evidence competence for medical etiology opinions)
- Stegall v. West, 11 Vet.App. 268 (Vet. App. 1998) (substantial compliance with Board/Court remand directives required)
- Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001) (benefit‑of‑the‑doubt doctrine standards)
- Gilbert v. Derwinski, 1 Vet.App. 49 (Vet. App. 1990) (burden and standard for resolving reasonable doubt)