Citation Nr: 0810630 Decision Date: 03/31/08 Archive Date: 04/09/08 DOCKET NO. 04-15 209 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Anchorage, Alaska THE ISSUE Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Nathaniel J. Doan, Associate Counsel INTRODUCTION The veteran had active service from July 1983 to April 1988. The veteran had National Guard duty thereafter. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Anchorage, Alaska. In that rating decision, the RO denied service connection for a lumbosacral spine disability, right knee disability, left ankle disability, and a left shoulder disability. The veteran's disagreement with this rating decision led to this appeal. The veteran testified before a Decision Review Officer (DRO) in May 2004. A copy of the transcript of this hearing has been associated with the claims file. The appeal was previously before the Board in June 2006. At that time, the Board denied the claims for service connection for the left ankle disability and the left shoulder disability. The claims for service connection for the lumbosacral spine disability and the right knee disability were remanded for additional development. Specifically, the RO was directed to issue the veteran an additional notification letter pursuant o the Veterans Claims Assistance Act of 2000 (VCAA) and to afford the veteran a VA examination. This development was completed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In an October 2007 rating decision, the Appeals Management Center (AMC) granted service connection for degenerative disc and joint disease of the lumbar spine, assigning a 10 percent rating and an effective date in April 2002. As the veteran has not appealed the rating or effective date assigned, this represents a complete grant of the veteran's appeal in regard to the claim for service connection for a lumbosacral spine disability. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Thus, the only issue remaining on appeal is service connection for a right knee disability. In a December 2007 supplemental statement of the case, the AMC continued the denial of service connection for the right knee disability. The veteran was informed that he was given a 60 day period in which to make any comment he wished concerning the additional information, before the appeal was returned to the Board. See 38 C.F.R. § 20.302. Although the veteran was provided the opportunity to waive this 60 day period, he indicated that he had more information or evidence to submit and to wait the full 60 days before his appeal was returned to the Board. The 60 days period has elapsed, however, without the veteran submitting additional information or evidence. The Board will proceed with adjudication of the appeal. FINDINGS OF FACT 1. All evidence necessary to decide the claim has been obtained; the veteran has been provided notice of the evidence necessary to substantiate his claim and has been notified of what evidence he should provide and what evidence VA would obtain; there is no indication that the veteran has evidence pertinent to his claim that he has not submitted to VA. 2. The veteran sustained a right knee injury in November 1986 while on active duty and he has a current diagnosis of a recurrent right knee strain; however, service examinations in 1989 and 1990, dated in-between the knee injury and the onset of post-service knee symptoms, were normal and the only competent opinion that addresses the question of a nexus between a current right knee disability and the in-service injury weighs against the contended causal relationship. CONCLUSION OF LAW A right knee disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA). See Pub. L. No. 106-475, 114 Stat. 2096 (2000), codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002). The VCAA provides, among other things, for notice and assistance to VA claimants under certain circumstances. VA has issued final rules amending its adjudication regulations to implement the provisions of the VCAA. See generally 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a)). The intended effect of these regulations is to establish clear guidelines consistent with the intent of Congress regarding the timing and the scope of assistance VA will provide to a claimant who files a substantially complete application for VA benefits or who attempts to reopen a previously denied claim. In order to be consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. This fourth element of the notice requirement comes from the language of 38 C.F.R. § 3.159(b)(1). During the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that, upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 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 the elements of the claim as reasonably contemplated by the application. Additionally, this notice must indicate that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. There is no issue as to providing an appropriate application form or completeness of the application. Pursuant to the June 2006 Board remand, the veteran was issued an additional VCAA notification letter in January 2007. This notice fulfilled the provisions of 38 U.S.C.A. § 5103(a). The veteran has been informed about the information and evidence not of record that is necessary to substantiate his claim; the information and evidence that VA will seek to provide; the information and evidence the claimant is expected to provide; and to provide any evidence in his possession that pertains to the claim. Further, the January 2007 notification letter informed the veteran of how a disability rating and an effective date is established. In Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II), the Court held, in part, that a VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case, the VCAA letter noted above was issued pursuant to a Board remand, and therefore, after the RO decision that is the subject of this appeal. The Board is cognizant of recent Federal Circuit decisions pertaining to prejudicial error. Specifically, in Sanders v. Nicholson, 487 F.3d 881 (2007), the Federal Circuit held that any error by VA in providing the notice required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial and that once an error is identified by the Court, the burden shifts to VA to demonstrate that the error was not prejudicial. The Federal Circuit reversed the Court of Appeals for Veterans Claims' holding that an appellant before the Court has the initial burden of demonstrating prejudice due to VA error involving: (1) providing notice of the parties' respective obligations to obtain the information and evidence necessary to substantiate the claim: (2) requesting that the claimant provide any pertinent evidence in the claimant's possession; and (3) failing to provide notice before a decision on the claim by the agency of original jurisdiction. (Emphasis added.) See also Simmons v. Nicholson, 487 F.3d 892 (2007). In this case, the timing error with respect to the notice requirements noted above raises a presumption of prejudicial error but such error is rebutted by the record. The AMC cured the timing defect by providing complete VCAA notice together with re-adjudication of the claim, as demonstrated by the December 2007 supplemental statement of the case. Prickett v. Nicholson, 20 Vet. App. 370, 376-78 (2006) (validating the remedial measures of issuing fully compliant VCAA notification and re-adjudicating the claim in the form of a statement of the case to cure timing of notification defect). The Court has held recently that a supplemental statement of the case that complies with applicable due process and notification requirements constitutes a readjudication decision. See Mayfield v. Nicholson, 20 Vet. App. 537, 541- 42 (2006) (Mayfield III); see also Prickett, supra (holding that a statement of the case that complies with all applicable due process and notification requirements constitutes a readjudication decision). As the supplemental statement of the case complied with the applicable due process and notification requirements for a decision, it constitutes a readjudication decision. Accordingly, the provision of adequate notice followed by a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. Mayfield III, 20 Vet. App. at 541-42, citing Mayfield v. Nicholson, 444 F.3d 1328, 133-34 (Fed. Cir. 2006) (Mayfield II). Thus, the presumption of prejudice against the veteran because of the timing of the notice is rebutted. See Sanders, supra. The veteran has been provided the opportunity to respond to VA correspondence and over the course of the appeal has had multiple opportunities to submit and identify evidence. Furthermore, the veteran has been provided a meaningful opportunity to participate effectively in the processing of his claim by VA. While the veteran does not have the burden of demonstrating prejudice, it is pertinent to note that the evidence does not show, nor does the veteran contend, that any notification deficiencies, either with respect to timing or content, have resulted in prejudice. The Board also finds that all necessary assistance has been provided to the veteran. The evidence of record includes private and VA medical records, including an April 2007 VA examination obtained upon remand. After review of the examination report, the Board finds that it provides competent, non-speculative evidence regarding the claimed nexus between the veteran's service and a current right knee disability. Thus, there is no duty to provide another examination. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In view of the foregoing, the Board finds that VA has fulfilled its duty to notify and assist the veteran in the claim under consideration. Adjudication of the claim at this juncture, without directing or accomplishing any additional notification and/or development action, poses no risk of prejudice to the veteran. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Law and Regulations Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in line of duty. See 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(21) and (24) (West 2002 & Supp. 2007); 38 C.F.R. § 3.6(a) and (d) (2007). ACDUTRA is, inter alia, full-time duty in the Armed Forces performed by National Guards for training purposes. 38 C.F.R. § 3.6(c)(1) (2007). It follows from this that service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or from injury incurred or aggravated while performing INACDUTRA. 38 U.S.C.A. §§ 101(24), 106, 1131 (West 2002 & Supp. 2007). However, presumptive periods do not apply to ACDUTRA or INACDUTRA. Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Where the determinative issue involves medical causation or 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. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Alternatively, the nexus between service and the current disability can be satisfied by medical or lay evidence of continuity of symptomatology and medical evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999). A disorder may be service connected if the evidence of record reveals that the veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Evidence that relates the current disorder to service must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. Savage, 10 Vet. App. at 495-97. 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. Factual Background The veteran contends that he has a right knee disability that began during or as the result of service. He specifically attributes his right knee disorder to an in-service injury. In an April 1984 service medical record, a clinician documented that the veteran sought treatment for a racquetball injury that occurred two or three weeks prior. Diagnosis was right knee strain. A November 1986 service medical record indicates that the veteran sought treatment for a knee problem, after he said he heard a "crack". Diagnosis was a right knee medial collateral ligament (MCL) injury and the veteran was directed to stay away from sports for ten days that could further damage the ligament. Review of medical records from his National Guard duty, including Reports of Medical Examination and Reports of Medical History completed in February 1989 and February 1990, do not document any complaint or diagnosis of a right knee disability. The claims file includes medical records documenting treatment for the right knee in June 1990. The claims file indicates that the veteran had crepitus. There was throbbing, but minimal, pain. A June 1990 X-ray revealed no evidence of intra-articular effusion, fracture or significant degenerative change. A section of the treatment record labeled "diagnosis" notes right iliotibial band, but it is unclear whether this is an indication that the veteran was found to have iliotibial band syndrome or some other disability. In a February 2003 letter, the veteran's ex-wife wrote that she was married to the veteran while he was in service and that he experienced problems with his knee, but noted she did not remember his knee problems in as much detail as other disabilities. She knew, however, that he sought help for the knee and was "plagued" by this injury for quite some time. The veteran underwent a VA examination in April 2007. The examiner noted review of the claims file and highlighted the veteran's treatment for a right knee injury, as documented in the service medical records. The veteran gave a history of intermittent right knee pain since the in-service injury. The examiner also documented the veteran's recurrence of pain and crepitus in 1990, but noted that X-rays revealed no abnormalities. The veteran currently complained of once-a-month flare-ups. The examiner noted crepitus upon examination. An X-ray taken at this time was read as negative. The examiner found that the veteran had a recurrent right knee sprain. The examiner opened based on examination, review of the claims file, medical evidence submitted, and current medical literature, that the recurrent right knee sprain was less likely as not related to injuries occurred during service. The examiner noted as rationale for this opinion that the veteran developed a right knee sprain during service which resolved. He found that there was no evidence of chronic right knee strain in service and no evidence of continuous treatment after service. Analysis The Board finds that service connection is not warranted for a right knee disability. The service medical records show that he sustained a right knee injury in November 1986 while on active duty and he has a current diagnosis of a recurrent right knee strain. However, the only competent opinion that addresses the question of a nexus between a current right knee disability and the in-service injury weighs against the contended causal relationship. Specifically, after review of the claims file and examination of the veteran in April 2007, the examiner found that it was less likely as not that the veteran's current right knee disability was attributable to service. The examiner provided a rationale for his opinion. There is no other medical evidence of record that contains an opinion regarding whether the veteran's current right knee disability began during or is otherwise attributable to service. In addition to the service medical evidence of a right knee injury, the record contains medical evidence of treatment for right knee crepitus and pain in June 1990, just over 2 years after the veteran's discharge from active duty. However, service examinations in 1989 and 1990, which were performed in-between the service knee injury and the onset of post- service knee symptoms, were normal. Moreover, there is no other medical documentation to support a finding that the veteran had continuity of symptomatology regarding his knee after June 1990. See 38 C.F.R. § 3.303(b). The next medical evidence documenting a right knee disability is the April 2007 VA examination obtained upon remand, a gap of more than 16 years. To the extent that the veteran has contended that he has had continuity of symptomatology since service, the Board finds that evidence provided by these statements is outweighed by the gap in documentation of treatment for a right knee disability. See Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint can be considered in service connection claims); see also Buchanan v. Nicholson, supra. Turning next to the lay statements of the veteran and his ex- wife, the Board notes that, in Jandreau v. Nicholson, No. 2007-4019 WL 1892301 Vet. App. July 3, 2007), the Federal Circuit Court determined that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. Although, in the Board's judgment, the veteran and his ex- wife are competent to testify as to his experiencing symptoms such as knee pain, the Board finds they are not competent to diagnose a chronic knee disability. See Washington v. Nicholson, 19 Vet App 362 (2005), citing Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (holding that lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witness' personal knowledge). Accordingly, as to diagnosing a chronic right knee disability, the veteran and his ex-wife have not been shown to possess the requisite medical training or credentials needed to render a competent opinion as to the diagnosis or medical causation of this disability. Therefore, their lay opinions do not constitute competent medical evidence and lack probative value. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). The undersigned has fully considered the veteran's contentions, including those set forth in writing. The United States Court of Appeals for the Federal Circuit (Federal Circuit Court) has held that lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in an of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. After consideration of the relevant lay and medical evidence of record, to include the competent nexus opinion, the Board finds that the preponderance of the evidence is against the claim. Therefore, the benefit of the doubt doctrine is not applicable and the claim for service connection for a right knee disability must be denied. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). ORDER Service connection for a right knee disability is denied. ____________________________________________ R. F. WILLIAMS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs