Citation Nr: 0301998 Decision Date: 01/31/03 Archive Date: 02/07/03 DOCKET NO. 97-26 080 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a left knee disability. 3. Entitlement to service connection for a right ankle disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD E. Pomeranz, Associate Counsel INTRODUCTION The appellant served as a member of reserve components from May 1963 to July 1970, and from February 1978 to February 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 1995 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) located in Columbia, South Carolina. The Board notes that the appellant also perfected an appeal of a March 1995 denial of entitlement to service connection for a left ankle disability. However, the appellant later withdrew his appeal with respect to this issue when he appeared at a hearing held in April 1997. Consequently, the Board will not review that issue. By a July 1998 action, the Board remanded this case for additional development. The Board notes that the issue of entitlement to service connection for a low back disability was subsequently granted by the RO in an October 2001 rating action. Therefore, this issue is no longer before the Board. FINDING OF FACT The appellant does not have a diagnosed right knee, left knee, or right ankle disability. CONCLUSION OF LAW The appellant does not have a right knee, left knee, or right ankle disability that is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 101, 1110, 1131 (West 1991 & Supp. 2002); 38 C.F.R. § 3.303 (2002). REASONS AND BASES FOR FINDING AND CONCLUSION I. Factual Background The appellant's service medical records are sparse and essentially consist of reports of medical history, dated in March 1986, October 1987, September 1989, and January 1991, and reports of medical examination, dated in March 1986, October 1987, September 1989, and January 1991. These reports are negative for any complaints or findings of a right ankle disability. In addition, with the exception of the January 1991 Report of Medical History, the above-noted reports are negative for any complaints or findings of either a right knee disability or a left knee disability. In the January 1991 Report of Medical History, in response to the question of whether the appellant had ever had or if he currently had a "trick" or locked knee, the appellant responded "yes." At that time, it was noted that the appellant had knee problems and a history of a paratrooper injury of his right knee in 1979. It was indicated that he had variable and unpredictable pain. In the Report of Medical Examination, dated in January 1991, the appellant's lower extremities were clinically evaluated as normal. In September 1994, the RO received a copy of DA Form 2173, Statement of Medical Examination And Duty Status, which showed that in June 1978, the appellant injured his right knee while making a "PLF" (parachute landing fall) during an airborne operation at annual training at Fort Chaffee in Arizona. According to the form, following the injury, the appellant was diagnosed with a sprain of the right knee. In February 1995, the appellant underwent a VA Joints examination. At that time, he stated that he was a 221/2-year veteran paratrooper who had served seven years on jump status. The appellant indicated that he had chronic stiffness and pain in his knees and right ankle. He noted that he had a history of recurrent right ankle sprains and was "casted" twice for the sprains. Upon physical examination, the right ankle was stable to varus and valgus stress, and anterior drawer testing was negative. The knees were also examined, and there was no effusion. There was mild crepitus bilaterally on range of motion, but he had no significant pain on patellofemoral compression or on palpation of the patellofemoral or tibiofemoral joint lines. His knees were both stable to varus and valgus, and anterior- posterior stressing, with a negative pinch test and negative McMurray's testing. The diagnoses were of the following: (1) bilateral knee pain, and (2) right ankle pain, status-post multiple lateral ligament sprains. In regard to the appellant's bilateral knee pain, the examining physician stated that there was minimal clinical evidence of significant arthritis. In regard to the appellant's right ankle pain, the examiner noted that the ankle was currently stable, but that the appellant did report stiffness. According to the examiner, there was mild swelling. In February 1995, the appellant underwent a VA general examination. Following the examination, the pertinent diagnoses were chronic right ankle pain and bilateral knee pain. X-rays of the appellant's right ankle and knees were negative. In April 1997, the RO received copies of the appellant's service medical records, dated in October 1963, and from June 1978 to November 1982. The records include an Individual Sick Slip (DD Form 689), dated in June 1978, which shows that at that time, it was noted that the appellant had a sprain or possible cartilage tear in his right knee. The records include another Individual Sick Slip (DD Form 689), dated in June 1981, which shows that at that time, it was noted that the appellant had discomfort to pressure in his left knee and that he had recently injured his left knee parachuting. An x-ray of the left knee was negative. In April 1997, a hearing was conducted at the RO. At that time, the appellant testified that he had initially injured his left knee in September 1968, during a parachute jump. (Transcript (T.) at page (pg.) 7). The appellant stated that he was subsequently examined, but that it was determined that it was not the sort of injury that required hospitalization. (Id.). He indicated that he injured his left knee again in a June 1981 parachute jump. (T. at pages (pgs.) 7 & 8). According to the appellant, in regard to his right knee, he reported that he had initially injured his right knee in the "early summer of 1970" during another parachute jump. (T. at pg. 9). The appellant revealed that he received treatment which involved an ace wrap and crutches, and that he was placed on limited duty for several weeks. (Id.). He stated that he injured his right knee again in June 1978, also during a parachute jump. (T. at pgs. 9 & 10). The appellant testified that at present, he suffered from chronic bilateral knee pain. (T. at pg. 8). In regard to his right ankle, he indicated that in 1981, he injured his right ankle during a field exercise. (T. at pg. 11). According to the appellant, his ankle was subsequently placed in a cast for three weeks. (T. at pg. 11). He noted that at present, he suffered from chronic right ankle pain. In October 1998, the appellant submitted lay statements from the following people: (1) E.V., the appellant's friend from service, (2) C.S., the appellant's friend from service, and (3) J.G.M., the appellant's friend from college. The statements support the appellant's contentions that during service, he injured his knees and right ankle and subsequently suffered from chronic bilateral knee and right ankle pain. In October 1998, the RO received a private medical statement from M.R.B., M.D., dated in June 1998. In the statement, Dr. B. indicated that he had reviewed x-rays that the VA had used in judging the appellant's claims for disability. Dr. B. stated that an x-ray of the appellant's right ankle, dated in February 1995, showed little evidence of degenerative joint disease and that the bones appeared intact. Joint spaces were of normal width. Dr. B. reported that an x-ray of the appellant's right knee, dated in February 1994, showed no bony abnormalities and that the joint space was not narrowed. There was no evidence of osteophytes. No fractures, air, or foreign bodies were present. According to Dr. B., an x-ray of the appellant's left knee, dated in February 1995, showed no bony abnormalities and that the joint space was not narrowed. There was no evidence of osteophytes, fractures, air, or foreign bodies. In December 1998, the appellant submitted a statement from B.D., his ex-wife, and in March 1999, he submitted a statement from T.O.F., a friend from the military. The statements support the appellant's contentions that during service, he injured his knees and right ankle and subsequently suffered from chronic bilateral knee and right ankle pain. In September 2000, a hearing was conducted at the RO before the undersigned Board member. At that time, the appellant testified that, while he was in the military, his Military Occupational Specialty (MOS) was as a paratrooper. (T. at pgs. 5 & 6). The appellant stated that as a paratrooper, he made between 150 and 175 parachute jumps. (T. at pg. 5). He noted that due to the numerous parachute jumps he made during service, he developed chronic bilateral knee and right ankle pain. (T. at pg. 13). At the appellant's September 2000 Travel Board hearing, the appellant submitted a private medical statement from G.G.M., M.D., dated in September 2000. In the statement, Dr. M. indicated that the appellant was an army veteran with over 20 years of service that included several years of service as a paratrooper. Dr. M. stated that according to the appellant, while he was in the military, he suffered numerous knee and right ankle injuries and sprains. At present, the appellant indicated that he had chronic bilateral knee and right ankle pain. Dr. M. reported that symptoms of anterior knee pain were common among paratroopers and that studies showed that the stress on the knees was high during parachute landing falls, resulting in high injury rates. It was Dr. M.'s opinion that the appellant's symptoms were more likely than not the result of repetitive trauma to the soft tissues of the knees while in the military. Dr. M. further stated that symptoms of ankle pain resulted from numerous sprains and strains that had damaged soft tissues of the right ankle. According to Dr. M., ankle injuries were on the "top" of most lists of injuries to paratroopers in the military. Therefore, it was Dr. M.'s opinion that the appellant's condition of the ankles was more likely than not the result of injury incurred while performing military parachute landing falls. A VA examination was conducted in April 2002. At that time, the appellant stated that while he was in the military, he was a paratrooper and suffered numerous bilateral knee and right ankle injuries and sprains. The appellant stated that at present, he had chronic bilateral knee and right ankle pain. Upon physical examination, both knees were stable on varus and valgus stressing. There was no joint line tenderness or effusion. Both ankles were stable on the drawer test, and there was no tenderness or swelling noted. X-rays of the appellant's right and left knees were reported to be within normal limits. X-rays of the appellant's right ankle were interpreted as showing no evidence of recent fracture, dislocation, or other bony abnormality. The impression was of an essentially negative right ankle. Following the physical examination and a review of the appellant's x-rays, the examiner diagnosed the appellant with the following: (1) bilateral knee pain, with unremarkable examination and x-rays, and (2) complaints of right ankle pain, with normal examination and plain films. The examiner noted that certainly, impacts sustained in parachute jumps were one source of trauma that through the years could contribute to wear and tear arthritis. II. Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Direct service connection requires a finding that there is a current disability that has a relationship with an injury or disease or some other manifestation of the disability during service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. See Cosman v. Principi, 3 Vet. App. 503, 505 (1992) (explaining the regulatory construction and applicability of section 3.303(d)). In such instances, a grant of service connection is warranted only when "all of the evidence, including that pertinent to service, establishes that the disease was incurred during service." 38 C.F.R. § 3.303(d). Alternatively, under 38 C.F.R. § 3.303(b), service connection may be awarded for a "chronic" condition when: (1) a chronic disease manifests itself and is identified as such in service (or within the presumption period under 38 C.F.R. § 3.307) and the veteran presently has the same condition; or (2) a disease manifests itself during service (or during the presumptive period), but is not identified until later, and there is a showing of continuity of related symptomatology after discharge, and medical evidence relates that symptomatology to the veteran's present condition. Savage v. Gober, 10 Vet. App. 488, 495-98 (1997). For certain chronic disorders, including arthritis, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 1991 & Supp. 2002); 38 C.F.R. §§ 3.307, 3.309 (2002). In the instant case, the appellant contends that while he was in the military, he was a paratrooper and suffered numerous bilateral knee and right ankle injuries, including sprains. The appellant maintains that because of his numerous bilateral knee and right ankle injuries, he developed chronic bilateral knee and right ankle pain. In this regard, lay statements are considered to be competent evidence when describing the features or symptoms of an injury or illness. Layno v. Brown, 6 Vet. App. 465 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995). However, when the determinative issues involves a question of medical diagnosis or causation, only individuals possessing specialized training and knowledge are competent to render an opinion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The evidence does not show that the appellant possesses medical expertise, nor is it contended otherwise. Therefore, his opinion that he currently suffers from bilateral knee disabilities, and a right ankle disability, and that his bilateral knee and right ankle disabilities are related to service, is not competent evidence. The Board recognizes that the evidence of record includes lay statements from the appellant's friends and his ex-wife. To the extent such statements are offered to establish that the appellant currently suffers from bilateral knee and right ankle disabilities which are related to service, such statements do not constitute competent evidence with respect to medical diagnosis or nexus. As lay people without medical expertise, they are not qualified to offer evidence that requires medical knowledge such as a diagnosis or opinion as to the cause of a disability. See Espiritu, 2 Vet. App. at 492, 494; Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). As previously stated, direct service connection requires a finding that there is a current disability that has a relationship to injury or disease during service. Rabideau, 2 Vet. App. at 141, 143. In the instant case, there is no competent medical evidence showing current medical diagnosis of either a right knee disability, a left knee disability, or a right ankle disability. The Board recognizes that the appellant's service medical records show that in June 1978, the appellant injured his right knee while making a PLF and was diagnosed with a sprain of the right knee. The records also reflect that in June 1981, the appellant injured his left knee parachuting. The Board notes that at that time, an x-ray of the left knee was negative. In addition, the Board also recognizes the appellant's testimony in his April 1997 hearing at the RO and in his September 2000 Travel Board hearing, that while he was in the military, he was a paratrooper and suffered numerous bilateral knee and right ankle injuries. However, despite the many injuries, there is no disability diagnosed for which service connection may be granted. In this case, the Board recognizes that at the appellant's February 1995 VA examination, the appellant was diagnosed with bilateral knee pain, and the examiner stated that in regard to the appellant's bilateral knee pain, there was minimal clinical evidence of significant arthritis. However, the Board observes that x-rays of the appellant's knees were taken at the time of the February 1995 VA examination and they were reported to be negative. The Board also notes that in the appellant's February 1995 examination, the appellant was diagnosed with right ankle pain, and x-rays of his right ankle were reported to be negative. In addition, in the private medical statement from Dr. M.R.B., dated in October 1998, Dr. B. stated that an x-ray of the appellant's right ankle, dated in February 1995, showed little evidence of degenerative joint disease and that the bones appeared intact. Dr. B. further noted that x-rays of the appellant's knees, dated in February 1995, were also negative. The Board notes that at the appellant's most recent VA examination, dated in April 2002, the diagnoses were the following: (1) bilateral knee pain, with unremarkable examination and x-rays, and (2) complaints of right ankle pain, with normal examination and plain films. In addition, the Board observes that, although the examiner stated that impacts sustained in parachute jumps were one source of trauma that through the years could contribute to wear and tear arthritis, the examiner did not diagnose the appellant with arthritis. Moreover, although in the private medical statement, dated in September 2000, Dr. M. opined that the appellant's symptoms of bilateral knee and right ankle pain were more likely than not the result of repeated injury incurred while performing military parachute landing falls, again, the Board observes that no diagnosis of underlying disability was provided. Recently, the United States Court of Appeals for Veterans Claims (Court) has had occasion to address what constitutes a disability. A symptom, such as pain, alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). In this case, there are subjective complaints of pain without confirmation of underlying pathology. Therefore, in light of the above, the Board concludes that without any current clinical evidence confirming the presence of a left knee disability, a right knee disability, or a right ankle disability, service connection must be denied. Rabideau, 2 Vet. App. at 141, 143. In deciding this case, the Board has considered the applicability of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096, et seq. (2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West Supp. 2001), which became effective during the pendency of this appeal. It is the Board's conclusion that the new law does not preclude the Board from proceeding to an adjudication of the claims addressed above. The Board finds that further action by the RO in accordance with the VCAA is not necessary in this case. This is so because the requirements of the law have been satisfied. In this regard, the Board notes that there is no indication that there is additional evidence that has not been obtained and that would be pertinent to the present claims. The evidence of record includes the appellant's service medical records, a February 1995 VA examination report, a February 1995 VA examination report, a private medical statement from Dr. M.R.B., dated in June 1998, a private medical statement from Dr. G.G.M., dated in September 2000, an April 2002 VA examination report, hearing testimony, and lay statements. In the instant case, the appellant has been afforded the opportunity to present evidence and argument in support of the claim, including at a hearing before the undersigned Board member. In addition, in an April 2001 letter from the RO to the appellant, and in a May 2002 rating action, the appellant was informed of the enactment of the VCAA and its content. The Board also finds that the discussions in the rating decision, the statement of the case, the supplemental statements of the case, and in the letters sent to the appellant from the RO during the course of the appeal have informed him of the pertinent law and regulations, and information and evidence that would be needed to substantiate his claims. See 38 U.S.C.A. § 5103 (West Supp. 2002). Additionally, these documents have indicated to the appellant what would be required of him, and what evidentiary development VA undertook on his behalf. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). With respect to VA's duty to assist the appellant, as noted above, pertinent medical records from all relevant sources identified by the appellant were obtained by the RO. In sum, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of the VCAA or the implementing regulations. ORDER Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for a right ankle disability is denied. MARK F. HALSEY Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.