Citation Nr: 0809787 Decision Date: 03/24/08 Archive Date: 04/09/08 DOCKET NO. 04-27 656 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota THE ISSUES 1. Entitlement to service connection for a bilateral knee disability. 2. Entitlement to service connection for residuals of a left foot injury. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Amy R. Grasman, Associate Counsel INTRODUCTION The veteran served on active duty from October 1973 to October 2003. This appeal comes before the Board of Veterans' Appeals (Board) from a February 2004 RO decision. This appeal was remanded in October 2007 for consideration by the RO of additional evidence submitted by the veteran in accordance with 38 C.F.R. § 20.1304 (2007). The Board notes that the veteran's March and December 2004 statements asserted a claim for an injury that was incurred during a January 2004 VA Compensation and Pension Examination pursuant to 38 U.S.C.A. § 1151 (2007). This claim has not been adjudicated by the RO and is referred to the RO for appropriate action. FINDINGS OF FACT 1. The veteran has been notified of the evidence necessary to substantiate his claim, and all relevant evidence necessary for an equitable disposition of this appeal has been obtained. 2. The competent medical evidence of record does not show that the veteran has a current diagnosed bilateral knee disability as a result of his active military service. 3. The competent medical evidence is in relative equipoise that there are residuals from an in-service left foot fracture. CONCLUSIONS OF LAW 1. A bilateral knee disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). 2. Residuals of a left foot injury were incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the VCAA duty to notify was satisfied by way of a letter sent to the appellant in January 2004 that fully addressed all four notice elements and was sent prior to the initial AOJ decision in this matter. The letter informed the appellant of what evidence was required to substantiate the claims and of the appellant's and VA's respective duties for obtaining evidence. The appellant was also asked to submit evidence and/or information in his possession to the AOJ. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, an October 2007 letter from the Appeal Management Center provided notice regarding the rating criteria and effective date provisions that are pertinent to the appellant's claims. Any error regarding this notice was harmless given that service connection is being denied for a bilateral knee disability and no rating or effective date will be assigned with respect to this condition. Additionally, service connection is being granted for residuals of a left foot injury. As this is a full grant of benefits sought by the veteran, there is no prejudice to the veteran regarding this issue. VA also has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained service medical records, DD Form 214, private medical records and VA medical records. The veteran was afforded a VA medical examination in January 2004. Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). The veteran asserts that he is entitled to service connection for a bilateral knee disability manifested by pain as well as residuals of a left foot fracture in service. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). This may be shown by affirmative evidence showing inception or aggravation during service or through statutory presumptions. Id. To establish direct service connection for a claimed disorder, there must be (1) medical evidence of current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). 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. See 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Where a veteran served 90 days or more during a period of war or during peacetime service after December 31, 1946, and a chronic disease such as arthritis manifests to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. § 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309. 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). Bilateral Knee Pain The veteran claims that he incurred a bilateral knee disability in service. In the October 1973 enlistment examination, the veteran did not report bilateral knee pain and the veteran's lower extremities were clinically evaluated as normal. Medical examinations dated in July 1981, July 1984 and April 1989 show that the veteran's lower extremities were clinically evaluated as normal. The remaining service medical records are silent for a right or left knee injury or treatment for bilateral knee pain. A May 2003 x-ray of the veteran's knees revealed no radiographic abnormality in the right knee and no radiographic abnormality in the left knee. In a January 2004 Compensation and Pension Examination, the veteran reported recurrent bilateral knee pain while running in service. He indicated that his knees were evaluated in service as having soft tissue injuries. X-rays of the right and left knees revealed no fracture, subluxation, narrowed joint space or any effusion in the joint space. The impression was an unremarkable study of both knees. The examiner opined that the veteran reported a history of right and left knee pain, likely due to anterior knee pain syndrome, with possible chondromalacia patella. The examiner further indicated that chondromalacia is an operative or arthroscopic diagnosis. The Board notes that the claims file was not available for the examiner's review. Medical records dated in April 2004 indicate that the veteran had pain in his left knee with an onset in January 2004. The veteran was diagnosed with left knee pain due to mild sprain. In December 2004, the veteran's statement shows that the veteran was able to run 3 miles every other day and walk 2 miles every day. He indicated that his knee rarely bothered him during this routine. He indicated that he felt pain when he stood for more than 5 minutes or walked up stairs. He also stated that his physical therapist could not establish if there was ligament damage, but could not rule it out. The Board finds that service connection for bilateral knee pain is not warranted. The Board has reviewed all the medical evidence of record and finds that the veteran does not have a current diagnosis of a bilateral knee disability. To establish service connection there must be medical evidence of a current disability, not a potential or possible disability. The veteran complained of bilateral knee pain, however, the competent medical evidence of record reflects only a possible diagnosis. 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), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Despite the lack of a current diagnosis, there is also no objective evidence of record of an in-service injury or medical opinion relating a disability to service. The service medical records do not show that the veteran had complaints of bilateral knee pain. The service medical records also do not contain a diagnosis of or treatment for a knee disability. The evidence of record is devoid of any objective medical evidence of knee pain until after service. There is also no evidence of record linking the veteran's bilateral knee disability to an injury in service, other than the veteran's own statements. No doctor has ever opined that a knee disability is related to any remote incident in service. Without competent medical evidence linking the veteran's disability to service, service connection is not warranted. The Board has considered the contentions of the veteran that he had bilateral knee pain in service. However, as a layman, without the appropriate medical training and expertise, he is not competent to provide a probative opinion on a medical matter such as diagnosis or etiology. While a layman such as the veteran can certainly attest to his in-service experiences and current symptoms, he is not competent to provide a diagnosis of a disability. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Furthermore, where the determinative issue involves a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Espiritu, supra. Without a disability, the veteran is not entitled to compensation. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In this case, the objective medical evidence does not show treatment for bilateral knee pain in service or a diagnosis of a bilateral knee disability. As such, the objective medical evidence outweighs the veteran's assertions. The Board finds that the preponderance of the evidence is against the veteran's claim and the benefit-of-the-doubt rule does not apply. Therefore, the veteran's claim for service connection for a bilateral knee disability must be denied. See 38 U.S.C.A §5107; 38 C.F.R. § 3.102. Residuals of Left Foot Injury The veteran asserts that he is entitled to service connection for residuals of as in-service left foot fracture. In October 1973, the veteran did not report a left foot injury and the veteran's lower extremities and feet were clinically evaluated as normal. In medical examinations dated in July 1981, July 1984 and April 1989, the veteran's lower extremities and feet were also clinically evaluated as normal. Service medical records dated in June 2002 show that the veteran had a sesamoid fracture in his left foot. In August 2002, the veteran reported a fractured left foot in a predeployment report. A radiological report in August 2002 revealed degenerative osteophytic changes of the first MTP joint with associated debris. Small ossific debris was seen adjacent to the first MTP joint, debris may be degenerative or posttraumatic. In April 2003, the veteran reported the fracture on a medical assessment. In a January 2004 Compensation and Pension Examination, the veteran reported that he fractured his foot in service and experienced recurring pain with prolonged running or walking. X-ray views of the left foot revealed no fracture, subluxation or narrowed joint spaces. The impression was an unremarkable study of the left foot. The examiner opined that the veteran had a history of a left foot fracture, but no residuals were found upon examination. The Board notes that the claims folder was not available for the examiner's review. The objective medical evidence of record is in relative equipoise as to whether there are residuals of a left foot fracture. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). There is however, incontrovertible evidence of a fracture in service and degenerative changes shown shortly after the trauma. Accordingly, the evidence may not be said to preponderate against the veteran. Affording the veteran the benefit of the doubt, the Board finds that service connection is warranted for residuals of a left foot fracture. ORDER Service connection for a bilateral knee disability is denied. Service connection for residuals of a left foot injury is granted. ____________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs