Citation Nr: 0810702 Decision Date: 04/01/08 Archive Date: 04/14/08 DOCKET NO. 06-01 255 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for a bilateral knee disorder. REPRESENTATION Appellant represented by: Arizona Department of Veterans Services WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Carole R. Kammel, Counsel INTRODUCTION The veteran served on active duty from August 1998 to August 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona, wherein the RO denied service connection for bilateral knee disorder. The veteran timely appealed the RO's August 2005 rating action to the Board. In January 2006, the veteran testified before a Decision Review Officer. In January 2008, she testified before the undersigned at a hearing conducted at the Phoenix, Arizona RO. Copies of the hearing transcripts have been associated with the claims files. FINDINGS OF FACT 1. The appellant's bilateral knee pain alone is not a disability for which VA compensation may be established. 2. There is no X-ray evidence of arthritis of the knees manifested to a compensable degree within a year of service discharge. CONCLUSION OF LAW A bilateral knee disorder was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). Duty to Notify Proper VCAA notice must inform the claimant of any information and evidence not of record that is necessary to substantiate the claim. The veteran should be informed as to what portion of the information and evidence VA will seek to provide, and what portion of such the claimant is expected to provide. Proper notification must also invite 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). See, also, the United States Court of Appeals for Veterans Claims (Court) decision in Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120- 21 (2004). In Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents (e.g., statements or supplemental statements of the case), was required. The Federal Circuit further held that such a letter should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. Id. With regard to the issue on appeal, VA provided the veteran with notice on the Pelegrini II VCAA elements in letters, dated in March 2005 and November 2006. The letters did not explicitly tell the veteran to submit all relevant evidence in her possession. The letter did, however, tell her to let VA know of any evidence she thought would support her claim, that it was her responsibility to make sure that VA received all requested records not in the possession of a Federal entity, and told her where to send what "we need." In addition, the Court has also 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, including the degree of disability and the effective date of an award. Dingess v. Nicholson, 19 Vet. App. 473 (2006). A March 2006 letter provided the veteran notice on the Dingess elements. Id. In Pelegrini II, the Court also held that VCAA notice should be given before an initial agency of original jurisdiction (AOJ) decision is issued on a claim. Pelegrini II, 18 Vet. App. at 119-120. The veteran was provided pre-adjudication VCAA notice via a March 2005 letter. Id. Duty to Assist Regarding VA's duty to assist the appellant with her claim on appeal, relevant service and post-service private and VA examination and clinical treatment reports, along with statements and testimony of the veteran and her representative, have been associated with the claims files. On a November 2006 statement to the RO, the veteran indicated that she did not have any additional evidence to submit in support of the current appeal. (see, VCAA Notice Response, dated and signed by the veteran in March 2006 ). To date, the RO has not afforded the veteran a VA examination with an opinion as to the etiology of her claimed bilateral knee disorder. Such an opinion is "necessary" under 38 U.S.C.A. § 5103A(d) when: (1) there is competent evidence that the veteran has a current disability (or persistent or recurrent symptoms of a disability), (2) there is evidence establishing that the veteran suffered an event, injury or disease in service or has a disease or symptoms of a disease within a specified presumptive period, (3) there is an indication the current disability or symptoms may be associated with service, and (4) there is not sufficient medical evidence to make a decision. See 38 U.S.C.A. § 5103A(c)(4). In this case, however, there is no competent evidence indicating that the veteran currently has a bilateral knee disorder and no reasonable possibility that a VA examination would result in findings favorable to the veteran. Accordingly, the Board finds that an etiology opinion is not "necessary." See generally Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). In sum, there is no evidence of any VA error in notifying or assisting the appellant that reasonably affects the fairness of this adjudication. II. Relevant Laws and Regulations Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection for any particular disability, there must be (1) medical evidence of a current disability; (2) medical evidence, 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 an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999) The chronicity provision of 38 U.S.C.A. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the Court's case law, lay observation is competent. Savage v. Gober, 10 Vet. App. 488, 498 (1997). In addition, if a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 U.S.C.A. § 3.303(b) (2006). Certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also 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). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran 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). III. Legal Analysis The veteran contends that her current bilateral knee disorder is the result of physical rigors she endured during basic training (i.e., forced marches, etc). (Transcript (T.) page. (pg.) 2). The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the grant of service connection for a bilateral knee disorder. In reaching the foregoing determination, the Board initially observes that the crux of the veteran's case hinges on whether or not she has a current bilateral knee disorder. At the outset, the Board notes that the veteran's service medical records are entirely devoid of any subjective complaints or clinical findings referable to any right or left knee pathology. Post-service private and VA treatment records show that the veteran had chronic and acute bilateral knee pain without any underlying right or left knee pathology. To this end, 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, 285 (1999). Although a VA clinician entered an impression of, "[b]ilateral knee pain, probably 'oa'" (osteoarthritis) in November 2002, three months after the veteran was discharged from service, that same report shows that X-rays of the knees were "wnl." (i.e.,within normal limits). (See, November 2002 VA outpatient report). Thus, in the absence of arthritis of the knees to a compensable degree within a year of the veteran's discharge from service in August 2002, the weight of the evidence is against service connection on a presumptive basis. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. Further, because arthritis of the knees has not been identified, on X-ray or otherwise, since service, it could not be service connected on the basis of 38 C.F.R. § 3.303(b). While the Board notes the veteran's belief that her current bilateral knee disorder is the result of physical rigors she endured during basic training, she, as a lay person, is not competent to offer opinions on medical diagnosis or causation, and the Board may not accept unsupported lay speculation with regard to medical issues. See Espiritu v. Derwinski, 2 Vet. App. 482 (1992); Moray v. Brown, 5 Vet. App. 211 (1993). The Board is sympathetic to the veteran's beliefs; however, the evidence does not show that she currently has a bilateral knee disability that is related to her period of active military service. As noted above, chronic bilateral knee pain, alone, without an underlying diagnosis, is not a disability for which service connection can be granted. See Sanchez-Benitez, supra. As such, the veteran's claim for service connection for a bilateral knee disorder must be denied. The preponderance of the evidence is against the claim and there is no doubt to be resolved. ORDER Service connection for a bilateral knee disorder is denied. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs