Single Judge Application, Lack of Notation of Medical Condition, Buczynski v. Shinseki, 24 Vet.App. 221, 226-27 (2011)

Excerpt from decision below:
"Buczynski v. Shinseki, 24 Vet.App. 221, 226-27 (2011) (where there is a lack of notation of medical condition or symptoms where such notation would normally be expected, the Board may consider this as evidence that the condition or symptoms did not exist)."
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-0109
TONY L. KITTS, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before LANCE, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
LANCE, Judge: The appellant, Tony L. Kitts, through counsel, appeals a
January 4, 2010,
Board of Veterans' Appeals (Board) decision that denied his claims for
disability compensation
based on service connection for a bilateral knee disability and for
hypertension, headaches, and a
low back disorder, all to include as secondary to the bilateral knee
disability. Record (R.) at 3-20.
Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.
App. 23, 25-26 (1990).
This appeal is timely, and the Court has jurisdiction over the case
pursuant to 38 U.S.C. §§ 7252(a)
and 7266. For the reasons that follow, the Court will affirm the January 4,
2010, decision.
I. FACTS
The appellant served in the U.S. Army for five months, from February 1980
through July
1980. R. at 478. In March 1980, he injured his right knee when he ran into
a wire, but did not report
any injury to his left knee as a result of this incident. R. at 629, 693,
694, 695, 707, 708.
Over 21 years later, in December 2001, after a motor vehicle accident, an
x-ray was taken
of the appellant's right tibia and fibula, which did not indicate any
injuries. R. at 161, 638. Five
years later, in July 2006, a medical examiner noted "[v]ery little
degenerative changes [in either
knee]." R. at 306. That same month, the appellant filed an application
with VA for service


connection for a bilateral knee condition and for headaches, a lower back
condition, and high blood
pressure, all to include as secondary to his knee condition. R. at 675-88.
In August 2006, the
appellant reported to a doctor that he has had chronic left knee pain
since 1980. R. at 343-46.
In September 2007, VA denied the appellant's claims and he appealed. R. at
526-64, 568-76.
During a Board hearing in November 2008, the appellant's representative
stated that the appellant
"fell down a flight of stairs when his right knee gave out. That's why the
left knee would be
considered secondary to the right knee condition." R. at 506. The same
month, a VA examiner
noted the appellant had a history of bilateral knee pain secondary to a
medial meniscal tear sustained
in service, but the examiner did not explain how he came to this
conclusion. R. at 141.
In January 2009, the Board remanded the appellant's claims for further
development and, in
March 2009, he received a VA examination for both knees. R. at 155-62, 490-
97. During the
examination, the appellant reported that his right knee had gotten better
since service and that he did
not have a problem with his right knee at that time. R. at 156, 161. The
diagnosis was "mild
degenerative joint disease [DJD] to right knee with no functional
impairments." R. at 159. The
examiner opined that the appellant's bilateral mild DJD of the knees was
likely caused by aging and
not likely caused by the minor injury he experienced during his military
service. R. at 161. The
appellant later submitted a May 2009 report from Dr. Gregory Alba, a
private physician, who stated
that the appellant "is disabled secondary to an accident which occurred in
the military . . . According
to the records, patient's injury did occur in the military while patient
was running in the dark and ran
into a cable that supported a telephone pole, thus injuring both knees." R.
at 61-62.
In January 2010, the Board issued the decision on appeal. R. at 3-20. The
Board found that
the appellant did not injure his left knee when he ran into a wire in
service, based on the
contemporaneous service medical records (SMRs) indicating that the
appellantonlyinjuredhis right
knee. R. at 16. The Board also relied on the March 2009 VA medical opinion
that the appellant's
bilateral knee condition is likely due to aging and not likely related to
service. R. at 16. The Board
analyzed the appellant's three other claims in regard to both direct and
secondary service connection,
but concluded that none of these disabilities was incurred in or
aggravated by active service nor
could service incurrence be presumed. R. at 6. Accordingly, the Board
denied all the claims.
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II. ANALYSIS
A. Bilateral Knee Disability
In regard to his bilateral knee disability, the appellant argues that the
Board should have
analyzed whether he was entitled to service connection under a theory of
continuity of
symptomatology. Appellant's Brief (Br.) at 7. He asserts that the Board's
failure in this regard
renders the Board's statement of reasons or bases inadequate. Appellant's
Br. at 7-8.
Establishing service connection generally requires medical or, in certain
circumstances, lay
evidence of (1) a current disability; (2) in-service incurrence or
aggravation of a disease or injury;
and (3) a nexus between the claimed in-service disease or injury and the
present disability. See
Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12
Vet.App. 247, 253
(1999); Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78
F.3d 604 (Fed. Cir. 1996)
(table); 38 C.F.R. § 3.303 (2011). Service connection may also be
established by showing
continuity of symptomatology, which requires a claimant to 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. 38 C.F.R. § 3.303(b); see Barr v. Nicholson,
21 Vet.App. 303, 307
(2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.
3d 1372, 1377 (Fed. Cir.
2007) (whether lay evidence is competent and sufficient in a particular
case is a factual issue to be
addressed by the Board); Charles v. Principi, 16 Vet.App. 370, 374 (2002) (
appellant is competent
to testify where symptoms are capable of lay observation); Layno v. Brown,
6 Vet.App. 465, 469
(1994) (lay testimony is competent to establish the presence of an
observable symptomatology and
"may provide sufficient support for a claim of service connection"). Under
the continuity of
symptomatology provision, "symptoms, not treatment, are the essence of any
evidence of continuity
of symptomatology." Savage v. Gober, 10 Vet.App. 488, 496 (1997).
In this case, the Board correctly determined that the appellant cannot
establish continuity of
symptomatology for his left knee because the evidence demonstrates that
his left knee condition was
not manifested during service and there is no demonstration of continuous
symptoms after service.
R. at 16. The appellant's SMRs clearly document that his in-service injury
was to his right knee, not
his left knee. R. at 629, 693, 694, 695, 707, 708. There is no evidence of
continuous symptoms of
knee pain in either knee until the appellant's statement in August 2006. R.
at 343-36. These
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statements occurred more than 25 years after the appellant's military
service and shortly after he
filed his claim for disability compensation. R. at 343-46. The Board
properly weighed the evidence
and found that the contemporaneous medical evidence was more credible than
the appellant's
statements made more than 25 years later. R. at 14-17; see Buchanan v.
Nicholson, 451 F.3d 1331,
1336 (Fed. Cir. 2006) (when making credibility determination, Board may
weigh absence of
contemporaneous medical evidence against lay evidence of record); see also
BuczynskiNext Document v. Shinseki,
24 Vet.App. 221, 226-27 (2011) (where there is a lack of notation of
medical condition or symptoms
where such notation would normally be expected, the Board may consider
this as evidence that the
condition or symptoms did not exist). The Board correctly noted that the
appellant is competent to
testify as to observable symptoms such as knee pain, but also concluded
that such testimony is
irrelevant where the credibility of such statements has been properly
discounted. SeeBuchanan,451
F.3d at 1336; Barr, 21 Vet.App. at 307; Heuer v. Brown, 7 Vet.App. 379,
387 (1995) ("continuity
of symptomatology can aid in establishing service connection only in cases
where the 'condition
[was] noted during service (or in the presumptive period)'" quoting 38 C.F.
R. § 3.303(b)).
The Court agrees with the Secretary that the appellant has waived any
similar argument in
regard to his right knee disability because he has never alleged
continuity of symptomatology for
his right knee. See Secretary's Br. at 10, citing Hilkert v. West, 12 Vet.
App. 145, 151 (1999), aff'd
232 F.3d 908 (Fed. Cir. 2000) (table); Coker v. Nicholson, 19 Vet.App. 439,
442 (2006), rev'd on
other grounds sub nom. Coker v. Peake, 310 Fed. App'x 371 (Fed. Cir. 2008) (
per curiam order);
Carbino v. Gobert, 10 Vet.App. 507, 510 (1997). The Court also agrees that,
to the extent that the
Board may have erred by not addressing continuity of symptomatology for
the right kneesua sponte,
any such error would be harmless. See Shinseki v. Sanders, 129 S.Ct. 1696,
1704 (2009); see also
38 U.S.C. § 7261(b)(2) (requiring the Court to "take due account of the
rule of prejudicial error").
The appellant himself admitted to a March 2009 VA examiner that "his right
knee got better" after
service and that "his right knee isn't a problem." R. at 156, 161. Further,
the March 2009 VA
examiner pointed out that "there is no continuity of care for a right knee
condition dated after
military service except for a 2001 [motor vehicle accident] involving the
right knee [which] was
unremarkable." R. at 161, 638. Thus, the Board did not err by not
addressing continuity of
symptomatology for the right knee. See Robinson v. Mansfield, 21 Vet.App.
545, 552 (2008) (Board
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must "consider all issues raised either by the claimant or by the
evidence of record.") (citations
omitted)).
In its decision, the Board cited Espiritu v. Derwinski, 2 Vet.App. 492,
494-95 (1992), and
stated categorically that "the Veteran and his former representative are
laypersons without the
appropriate medical training or expertise, [therefore] they are not
competent to render probative (i.e.
persuasive) opinions on these medical matters." R. at 19. In this regard,
the Board stated the law
too narrowly. As noted above, the Board must consider, on a case-by-case
basis, the competence
and sufficiency of lay evidence. See Davidson and Jandreau, both supra.
However, any error the
Board may have made in this regard would be harmless because, in this case,
the Board assigned less
weight to the appellant's lay statements because it properly found them
not credible, not because it
may have erred in finding them not competent. See Sanders, supra.
B. Additional Arguments
The appellant's only argument in regard to his three other claims is that
they should be
remanded because they are inextricably intertwined with his claim for
service connection for a
bilateral knee disability. Appellant's Br. at 8; see 38 C.F.R. § 3.310(a) (
To be granted secondary
service connection, a disability must be "proximately due to, or the
result of, a service-connected
disease or injury."). However, the Court is affirming the Board's denial
of the bilateral knee
disability claim, which renders this argument moot. The Court notes that
the Board thoroughly
discussed these three claims in regard to both direct and secondary
service connection and provided
an adequate statement of the reasons or bases for its findings and
conclusions. R. at 17-19.
At the end of his brief, the appellant makes a vague and unsupported
allegation that the
Secretary has failed to comply with his duty to assist the appellant.
Appellant's Br. at 8. This vague
assertion is insufficient to carry the appellant's burden. See Locklear v.
Nicholson, 20 Vet.App. 410,
416-17 (2006) (Court unable to find error when arguments are "far too
terse to warrant detailed
analysis by the Court"); Coker, 19 Vet.App. at 442 ("Court requires that
an appellant plead with
some particularity the allegation of error so that the Court is able to
review and assess the validity
of the appellant's arguments."). The Court detects no error in the Board's
conclusion that VA has
fully complied with its duty to assist the appellant. R. at 8.
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C. Compliance with Court Rules of Practice and Procedure
In his initial brief, the appellant "concedes that the statement of the
facts contained in the
Board's January 4, 2010, decision . . . are [sic] incorporated by
reference herein." Appellant's Brief
at 2. The appellant is not permitted to omit a Statement of Facts from his
brief in this manner. The
rules of the Court require that the appellant's brief must include "a
statement of the case, showing
. . . the facts relevant to the issues, with appropriate page references
to the Record Before the
Agency." U.S. VET. APP. R. 28(a).
III. CONCLUSION
After consideration of the appellant's and the Secretary's briefs, and a
review of the record,
the Board's January 4, 2010, decision is AFFIRMED.
DATED: July 29, 2011
Copies to:
Peter J. Meadows, Esq.
VA General Counsel (027)
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