Citation Nr: 0811179 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 06-02 621 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a heart disability. 2. Entitlement to service connection for a bilateral knee disability. 3. Entitlement to service connection for a bilateral ankle disability. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD Saira Sleemi, Associate Counsel INTRODUCTION The veteran served on active duty from January 1944 to May 1946. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision of the Regional Office (RO) that denied service connection for a heart disability, a bilateral knee disability and a bilateral ankle disability. FINDINGS OF FACT 1. A heart disability did not originate in service or within one year thereafter, and it is not related to any incident of service. 2. A bilateral knee disability did not originate in service or within one year thereafter, and it is not related to any incident of service. 3. A bilateral ankle disability did not originate in service or within one year thereafter, and it is not related to any incident of service. CONCLUSION OF LAW 1. A heart disability was not incurred in or aggravated by active service, nor may such be presumed. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). 2. A bilateral knee disability was not incurred in or aggravated by active service, nor may such be presumed. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). 3. A bilateral ankle disability was not incurred in or aggravated by active service nor may such be presumed. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) redefined VA's duty to assist the veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). The notice requirements of the VCAA require VA to notify the veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; what subset of the necessary information or evidence, if any, the VA will attempt to obtain; and a general notification that the claimant may submit any other evidence he has in his possession that may be relevant to the claim. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule); see also Sanders, supra. In this case, in an August 2004 letter, issued prior to the decision on appeal, the RO provided notice to the appellant regarding what information and evidence is needed to substantiate the claim, as well as what information and evidence must be submitted by the veteran, what information and evidence will be obtained by VA, and the need to advise VA of or submit any additional evidence that pertains to the claim. The veteran was advised about how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations in March 2006. This case was last readjudicated in March 2007. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant. Specifically, the information and evidence that have been associated with the claims file includes the appellant's multiple contentions, service treatment records, private and VA medical records. The Board notes that a VA examination has not been conducted in this case. However, as will be shown below, the service treatment records were negative for a heart disability, any knee disabilities or any ankle disabilities, the veteran indicates his current conditions are related to an in-service case of rheumatic fever although service treatment records are negative for any complaints, treatment or findings related to rheumatic fever, and there is no competent evidence showing a current chronic disability that may be related to an event in service. Thus, an examination is not warranted. 38 C.F.R. § 3.159(c)(4). As discussed above, the VCAA provisions have been considered and complied with. The appellant was notified and aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no indication that there is any prejudice to the veteran by the order of the events in this case. See Pelegrini, supra; Bernard v. Brown, 4 Vet. App. 384 (1993). Moreover, as the Board concludes below that the preponderance of the evidence is against service connection for a heart disability, a bilateral knee disability and a bilateral ankle disability, any question as to an appropriate evaluation or effective date to be assigned is rendered moot. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. See Sanders, supra. Thus, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, supra; Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303 (2007). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of an in- service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and an organic disease of the nervous system, including certain chronic diseases such as cardiovascular diseases or arthritis, becomes manifest 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 (2007). The veteran contends, in essence, that his current disabilities of the heart, bilateral knees and bilateral ankles, are in fact related to rheumatic fever for which he was hospitalized twice in service, in February 1944 and May 1944. He further contends that this rheumatic fever recurred at some time in 1952 and he has had problems with his heart, knees and ankles ever since then. Service treatment records are wholly devoid of any complaints, findings or diagnoses relating to rheumatic fever. The veteran was treated in February 1944 for a sore throat, malaise, headache, low-grade non-productive cough and fever for which he was later diagnosed with measles and nasopharyngitis. He was subsequently treated in May 1944 for a frequent sore throat for which he was diagnosed with tonsillitis. Subsequent examinations following service from December 1954 to January 1971 reflect the veteran reported a history of whooping cough and mumps but not of rheumatic fever. VA treatment records from February 1953 reflect that the veteran was diagnosed with rheumatoid arthritis, in which he complained of pain in the ankles and knees but was not diagnosed with a separate knee or ankle disability. Furthermore, the VA physician in his final summary of treatment concluded that there was no evidence ever of any involvement of the heart valve. Private medical records from April 1999 to September 2006 and VA outpatient treatment records from May 2004 to September 2006 reflect the veteran has a current heart disability for which he is receiving ongoing treatment. The Board notes that the veteran has been diagnosed with and received treatment for various heart conditions including: congestive heart failure, hypertension, cardiomyopathy, valvular heart disease, left bundle branch block, ventricular ectopy, hypokinetic left ventricle, diminished left ventricular ejection, anteroapical ischemia, mild left ventricular systolic dysfunction, aortic and mitral insufficiency, mild mitral and tricuspid regurgitation, moderate descending aortic atherosclerosis, left ventral hypertrophy and pulmonic insufficiency, among other conditions. However, service treatment records are absent any findings or complaints related to a heart disability. Private medical records indicate that the veteran was first diagnosed with osteoarthritis of the right knee in July 2002. Subsequent VA outpatient treatment records from May 2004 indicate the veteran was treated for osteoarthritis of the knees, hips and ankles. There is no evidence that a knee disability began in service, as the service treatment records are negative for any findings of a knee injury or disease in service. The competent medical evidence of record also does not reflect any findings of arthritis of the knees for many years following service. The medical evidence of record indicates that the veteran's bilateral ankle disability was first documented in May 2004, approximately 58 years after separation from service. A May 2004 VA outpatient treatment record noted the veteran was treated for osteoarthritis of the knees, hips and ankles. Service medical records are absent any findings of an ankle injury or disease in service. The competent medical evidence of record also does not reflect any findings of arthritis of the ankles for many years following service. As there are no findings in service of a heart, knee or ankle disability, no evidence of these disabilities for years after service and no competent medical evidence suggesting the veteran's current disabilities were linked to an injury or disease in service, the Board finds that the veteran's claims for service connection cannot be established. See Hickson v. West, 12 Vet. App. at 253. In fact, the earliest medical evidence of knee and ankle pain was approximately 7 years following service, when the veteran was diagnosed with rheumatoid arthritis in February 1953. The Board notes the medical treatise evidence from various websites cited by the veteran suggests that rheumatic fever may be a cause of heart disabilities, however this evidence does not specifically indicate that this particular veteran's current heart disability may be associated with an injury, disease or event during his military service. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). In addition, as there was no evidence of rheumatic fever or a heart condition in service, there was nothing in service to which the current disability may be linked. Finally, because there is no evidence of an event, injury, or disease in service or any indication that the veteran's current disabilities may be associated with such, it is not necessary to obtain a medical examination or medical opinion in order to decide the claim in this case. 38 C.F.R. § 3.159(c)(4)(i); Duenas v. Principi, 18 Vet. App. 512, 517 (2004), citing Paralyzed Veterans of Am. V. Sec'y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003) (noting that a medical examination conducted in connection with claim development could not aid in substantiating a claim when the record does not already contain evidence of an in-service event, injury, or disease). While the veteran contends that his current heart, knee and ankle disabilities have been present since his period of active military service and related thereto, his statements do not constitute competent evidence of a medical nexus opinion. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). The evidence is not in relative equipoise. Thus, the preponderance of the evidence is against the claim, and the appeal must therefore be denied. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Service connection for a heart disability is denied. Service connection for a bilateral knee disability is denied. Service connection for a bilateral ankle disability is denied. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs