Citation Nr: 0112307 Decision Date: 04/30/01 Archive Date: 05/03/01 DOCKET NO. 00-16 801 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for left knee retropatellar pain syndrome (RPPS). 2. Entitlement to service connection for right wrist de Quervain's syndrome. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Robinson, Associate Counsel INTRODUCTION The veteran had active service from November 1994 to August 1999. This matter comes before the Board of Veterans' Appeals (Board) from a July 1999 rating determination of a Department of Veterans Affairs (VA) Regional Office (RO) in Seattle Washington. In pertinent part, the RO denied entitlement to service connection for left knee RPPS and right wrist de Quervain's syndrome. Jurisdiction of the veteran's claim and appeal has been assumed by the Phoenix, Arizona VARO. The case has been forwarded to the Board for appellate review. FINDINGS OF FACT 1. Left knee RPPS was reported in active service. 2. Left knee RPPS is no longer shown by the medical evidence of record. 3. Right wrist de Quervain's syndrome was reported in active service. 4. Right wrist de Quervain's syndrome is no longer shown by the medical evidence of record. CONCLUSIONS OF LAW 1. Left knee RPPS was not incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 1991 & Supp. 2000); Veterans Claims Assistance Act (VCAA) of 2000, Pub. L. No. 106-475, § 4, 114 Stat. 2096 (2000) (to be codified as amended at 38 U.S.C. § 5107); 38 C.F.R. § 3.303 (2000). 2. Right wrist de Quervain's syndrome was not incurred in or aggravated by active service. 38 U.S.C.A. § 1110; VCAA of 2000, Pub. L. No. 106-475, § 4, 114 Stat. 2096 (2000) (to be codified as amended at 38 U.S.C. § 5107); 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background A review of the service medical records discloses that the veteran was seen in December 1994 with complaints of left knee pain. On examination there was evidence of tenderness noted. The diagnosis was low-grade chondromalacia patella. He was seen in May and June 1995 with complaints of right wrist pain. On examination, pain against thumb extension was noted. X-rays were normal. The diagnosis was de Quervain's syndrome, right and 1st dorsal compartment tenosynovitis. He was also seen in September and November 1998 with complaints of left knee pain. Examination of the knee revealed positive crepitation and popping with flexion. The diagnosis was left knee RPPS. He was seen again in January and February 1999 with complaints of left knee pain. On examination there was evidence of clicking and popping. The diagnosis was left knee RPPS. X-rays of the left knee were negative. An April 1999 VA examination report shows the veteran related that his right wrist de Quervain's tenosynovitis had begun in 1995. The diagnosis was resolved right de Quervain's tenosynovitis. He also stated that he had experienced left knee pain since 1998. The diagnosis was normal examination of the left knee. Criteria In order to establish service connection for a claimed disability the facts must demonstrate that a disease or injury resulting current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. § 1110 (West 1991 & Supp. 2000); 38 C.F.R. § 3.303 (2000). Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2000). This rule does not mean that any manifestation in service will permit service connection. To show 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 disease identity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2000). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2000). The United States Court of Appeals for Veterans Claims (Court) has held that, in order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) 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 disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after consideration of all of the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3 (2000). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under law administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. VCAA of 2000, Pub. L. No. 106-475, § 4, 114 Stat. 2096, 2098-99 (2000) (to be codified as amended at 38 U.S.C. § 5107). Duty to Assist There has been a significant change in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the VCAA of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000). The law currently in effect mandates that the Secretary shall assist a claimant in developing all facts pertinent to a claim for benefits. The Secretary shall provide a medical examination when such examination may substantiate entitlement to the benefits sought. The Board is satisfied that all relevant facts have been adequately developed to the extent possible, no further assistance to the appellant in developing the facts pertinent to his claim is required to comply with the duty to assist the appellant as mandated by the VCAA of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000). In reaching this determination, the Board has considered the fact that the law with respect to the duty to assist has been significantly changed since the most recent supplemental statement of the case was issued to the veteran. Congress recently passed the VCAA of 2000, Pub. L. No. 106- 475, 114 Stat. 2096 (2000), modifying the adjudication of all pending claims. As set forth above, the new law revises the former 38 U.S.C.A. § 5107(a) to eliminate the requirement that a claimant come forward first with evidence to well ground a claim before the Secretary is obligated to assist the claimant in developing the facts pertinent to the claim. It also specifically enumerates the requirements of the duty to assist. In this case, the Board finds that the veteran is not prejudiced by its consideration of his claim pursuant to this new legislation without it first being considered by the RO. As set forth above, VA has already met all obligations to the veteran under this new legislation. Moreover, the veteran as well as his representative have been offered the opportunity to submit evidence and argument on the merits of the issue on appeal, and have done so. In view of the foregoing, the Board finds that the veteran will not be prejudiced by its actions and that a remand for adjudication by the RO would only serve to further delay resolution of the veteran's claim. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Having determined that the duty to assist has been satisfied, the Board turns to an evaluation of the veteran's claim on the merits. Analysis I. Entitlement to service connection for left knee RPPS. The Board's review of the evidentiary record discloses that while the service medical records show the veteran was treated for and diagnosed with left knee RPPS, the recent VA examination failed to demonstrate the current existence of left knee RPPS or any other left knee disability. The VA examiner concluded that the examination of the left knee was normal. In the absence of medical evidence of a current disability the claim of entitlement to service connection must be denied. Hickson, supra. As the veteran is not shown to have left knee RPPS related to his period of service, there exists no basis upon which to predicate a grant of entitlement to service connection. Hickson, supra. The veteran's own opinions and statements that he has left knee RPPS related to his period of service is not competent evidence in this case. While a lay person is competent to provide evidence on the occurrence of observable symptoms during and following service, such a lay person is not competent to make a medical diagnosis or render a medical opinion, which relates a medical disorder to a specific cause. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Neither is the Board competent to supplement the record with its own unsubstantiated medical conclusions as to whether the veteran has left knee RPPS. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Board views its foregoing discussion as sufficient to inform the veteran of the elements necessary to complete his application to reopen this claim. See Graves v. Brown 8 Vet. App. 522 (1996); Robinette v. Brown, 8 Vet. App. 69, 77-78 (1995); McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997); Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). Although the veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim of entitlement to service connection for left knee RPPS. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). II. Entitlement to service connection for right wrist de Quervain's syndrome The Board's review of the evidentiary record discloses that while the service medical records show the veteran was treated for and diagnosed with right wrist de Quervain's tenosynovitis, the recent VA examination failed to demonstrate the current existence of right de Quervain's tenosynovitis. The VA examiner concluded that right wrist de Quervain's tenosynovitis was resolved. In the absence of medical evidence of a current disability the claim of entitlement to service connection must be denied. Hickson, supra. As the veteran is not shown to have right wrist de Quervain's tenosynovitis related to his period of service, there exists no basis upon which to predicate a grant of entitlement to service connection. Hickson, supra. The veteran's own opinions and statements that he currently has right wrist de Quervain's tenosynovitis related to his period of service is not competent evidence in this case. While a lay person is competent to provide evidence on the occurrence of observable symptoms during and following service, such a lay person is not competent to make a medical diagnosis or render a medical opinion, which relates a medical disorder to a specific cause. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Neither is the Board competent to supplement the record with its own unsubstantiated medical conclusions as to whether the veteran has right wrist de Quervain's tenosynovitis. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Board views its foregoing discussion as sufficient to inform the veteran of the elements necessary to complete his application to reopen this claim. See Graves v. Brown 8 Vet. App. 522 (1996); Robinette v. Brown, 8 Vet. App. 69, 77-78 (1995); McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997); Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). Although the veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim of entitlement to right wrist de Quervain's syndrome. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER Entitlement to service connection for left knee RPPS is denied. Entitlement to service connection for right wrist de Quervain's syndrome is denied. RONALD R. BOSCH Member, Board of Veterans' Appeals