Citation Nr: 0811071 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 00-19 854 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Service connection for tendonitis of the right knee. 2. Entitlement to an increased evaluation for residuals post fracture, proximal phalanx of the right thumb and fracture of the right index finger with chronic sprain, right wrist and tendonitis, right hand, currently rated as 10 percent disabling. 3. Entitlement to an increased evaluation for residuals, fracture of the right fibula, currently rated as 0 percent disabling. 4. Entitlement to an increased evaluation for degenerative disc disease, cervical spine, with intermittent headaches, currently rated as 10 percent disabling. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Christopher McEntee, Associate Counsel INTRODUCTION The veteran had active service from January 1985 to April 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in April 1999 of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The issues of increased rating for the neck, right upper extremity, and right fibula disorders are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT A right knee disorder is not related to service. CONCLUSION OF LAW A right knee disorder was not incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran claims entitlement to service connection for a right knee disorder. In the interest of clarity, the Board will initially discuss whether this claim has been properly developed for appellate purposes. The Board will then address the merits of the claim, providing relevant VA law and regulations, the relevant facts, and an analysis of its decision. I. Veterans Claims Assistance Act of 2000 The Board must determine whether the veteran has been apprised of the law and regulations applicable to this matter, the evidence that would be necessary to substantiate the claim, and whether the claim has been fully developed in accordance with the Veterans Claims Assistance Act of 2000 (VCAA) and other applicable law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002). VA is required to provide notice of the VCAA to a claimant as required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1). More specifically, VA is required to notify a claimant of the evidence and information necessary to substantiate a claim and whether the claimant or the VA is expected to provide the evidence, and is required to request from the claimant any other evidence in his or her possession that pertains to the claim. Id. VA satisfied VCAA notification requirements here in letters from VA dated in March 2004 and March 2006. 38 U.S.C.A. § 5103 and 38 C.F.R. § 3.159. VA informed the veteran of the elements comprising his claim and of the evidence needed to substantiate the claim. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2007). VA requested from the veteran relevant evidence, or information regarding evidence which VA should obtain (the Board also finds that the veteran was otherwise fully notified of the need to give to VA any evidence pertaining to his claim). Pelegrini v. Principi, 18 Vet. App. 112 (2004) (veteran should be notified that he should submit any pertinent evidence in his possession). VA advised the veteran of the respective duties of the VA and of the veteran in obtaining evidence needed to substantiate his claim. And VA provided notification to the veteran prior to the initial adjudication of his claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2007) (VCAA notice must be provided to a claimant before the initial unfavorable RO decision). The Board notes a deficiency with VCAA notification, however. VA did not notify the veteran regarding disability evaluations and effective dates for the award of VA benefits until March 2006. See Dingess/Hartman and Mayfield, both supra. Nevertheless, the Board finds that any presumed prejudice incurred by the veteran as a result of the untimely notice has been rebutted by the record, and that proceeding with a final decision is appropriate here. See Sanders v. Nicholson, 487 F.3d 881 (2007). See also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328. As will be further detailed below, the Board will deny the veteran's service connection claim. No disability rating or effective date will be assigned here therefore. As such, the late notice is harmless error. The Board also notes that the record is not entirely clear that the veteran received the VCAA letters mailed to him. The record indicates that the veteran provided VA with several home addresses, to which VA mailed the various correspondence matters involved in this matter. In June 2007, the RO requested from the veteran's representative information regarding the veteran's current whereabouts, and information regarding the veteran's receipt of these matters. In a response later that month, the veteran's representative indicated that it could not find the veteran's current address. The Board nevertheless finds that the RO satisfied its duty to notify the veteran here. The RO demonstrated in the record its repeated efforts to contact the veteran. Moreover, the RO mailed the notification letters to the veteran's last-provided mailing address. See 38 U.S.C.A. § 5107(a) (claimant has responsibility to present and support a claim for VA benefits); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (the duty to assist in development of a claim is not "a one way street"). VA has satisfied VCAA notification requirements in this matter. With regard to VA's duty to assist, the VCAA requires that VA make reasonable efforts to assist the veteran in obtaining evidence necessary to substantiate a claim for benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A. The VCAA provides that the assistance provided by the Secretary shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary, as further defined by statute, to make a decision on the claim. 38 U.S.C.A. § 5103A. In this matter, the Board finds that VA's duty to assist has been satisfied as well. The RO obtained medical records relevant to the appeal. VA afforded the veteran the opportunity to appear before one or more hearings to voice his contentions. And VA provided VA compensation examination for the veteran's claim. In sum, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with VA's duties to notify or assist the veteran in this appeal. Therefore, the veteran has not been prejudiced as a result of the Board deciding his claim here. II. The Merits of the Claim for Service Connection The veteran claimed service connection for a right knee disorder in August 1998. In the April 1999 rating decision on appeal, the RO denied the veteran's claim. For the reasons set forth below, the Board agrees with that decision. Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2007). Generally, to establish service connection for a disability, a claimant must submit the following: First, medical evidence of a current disability. Second, medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease. And third, medical evidence of a nexus between the current disability and the in-service disease or injury. Pond v. West, 12 Vet. App. 341, 346 (1999). In this matter, the evidence indicates that none of the Pond elements has been established. The first element of Pond is not established because the preponderance of the medical evidence indicates that the veteran does not have a current right knee disorder. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992) ("Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. . . . In the absence of proof of a present disability there can be no valid claim.") The Board notes an October 1998 VA examination report noting tendonitis of the right knee. But that examiner noted full and normal range of motion. And October 1998 VA x-ray examination indicated an unremarkable right knee besides slight narrowing in the patellofemoral compartment. Moreover, the most recent evidence addressing this issue - found in the November 2004 VA compensation examination report of record - found a normal right knee. The examiner found "insufficient clinical evidence to warrant a diagnosis of any chronic musculoskeletal disorder or residuals thereof." As to the second element of Pond, the record does not indicate that the veteran incurred or aggravated a right knee disorder during service. Service medical records covering the period of the veteran's active service show no complaints, treatment, or diagnoses for a right knee disorder. Rather, a July 1987 x-ray report indicated a normal right knee. The earliest medical evidence of complaints of a right knee disorder, moreover, is dated in October 1998 VA medical records noting knee strain. These records are dated over 7 years following the veteran's discharge from active service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is evidence against a claim of service connection). Based on this evidence, the second element of Pond is unsatisfied here. See Pond, supra. And the third element of Pond is not satisfied because the record lacks medical evidence of a nexus between the veteran's period of active service and his claimed right knee disorder. In fact, the October 2004 VA examiner stated (after noting the absence of evidence of a current right knee disorder) that service did not relate to any claimed disorder. See Pond, supra. As the preponderance of the evidence is against the veteran's claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board notes that it has closely reviewed and considered the veteran's statements in this matter. While his statements may be viewed as evidence, the Board must also note that laypersons without medical expertise or training are not competent to offer medical evidence on matters involving diagnosis and etiology. Therefore, the statements alone are insufficient to prove the veteran's claim. Ultimately, a lay statement, however sincerely communicated, cannot form a factual basis for granting a claim requiring medical determinations. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992). ORDER Service connection for a right knee disorder is denied. REMAND In January 2008, the U.S. Court of Appeal for Veterans Claims (Court) issued its decision in Vazquez-Flores v. Peake, -- Vet. App. --, No. 05-0355, 2008 WL 239951 (Jan. 30, 2008). In this decision, the Court addressed VA claims for increased compensation. In relevant part, the Court stated in Vazquez-Flores that, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Id. In March 2004 and March 2006, the RO submitted to the veteran VCAA letters pertaining to the veteran's increased rating claims for neck, right upper extremity, and right fibula disorders. But these letters did not address the disability criteria in the diagnostic codes pertaining to these disorders. Accordingly, the case is REMANDED for the following action: 1. The RO should submit to the veteran a new VCAA letter addressing the veteran's increased rating claims for neck, right upper extremity, and right fibula disorders. See Vazquez-Flores, supra. 2. With regard to the veteran's right upper extremity disorder, the RO should notify the veteran of relevant diagnostic code criteria pertaining to wrist, hand, and finger disorders, as the record indicates that the veteran has been service connected for disorders in these areas of his right extremity. 3. The RO should then readjudicate the issues on appeal. If a determination remains unfavorable to the veteran, the RO should issue a Supplemental Statement of the Case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issues. An appropriate period of time should be allowed for response by the veteran and his representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs