Citation Nr: 0811798 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 03-21 867 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for bilateral foot disorder. 2. Entitlement to service connection for left knee disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Scott Shoreman, Associate Counsel INTRODUCTION The veteran had active service from April 1982 to June 1984. This matter comes before the Board of Veterans' Appeals (Board) from an April 2003 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. The competent and probative evidence preponderates against a finding that the veteran's bilateral foot disorder is causally related to his active military service. 2. The competent and probative evidence preponderates against a finding that the veteran's left knee disorder is causally related to his active military service. CONCLUSION OF LAW 1. A bilateral foot disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2007); 38 C.F.R. § 3.303 (2007). 2. A left knee disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist a claimant in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide; and to request that the claimant provide any evidence in the claimant's possession that pertains to the claim. 38 U.S.C.A. § 5.103(a); 38 C.F.R. § 3.159(b). The U.S. Court of Appeals for Veterans Claims has held that VCAA notice should be provided to a veteran before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). If, however, VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006). The U.S. Court of Appeals for the Federal Circuit has held that, if a claimant can demonstrate error in VCAA notice, such error should be presumed to be prejudicial. VA then bears the burden of rebutting the presumption, by showing that the essential fairness of the adjudication has not been affected because, for example, actual knowledge by the claimant cured the notice defect, a reasonable person would have understood what was needed, or the benefits sought cannot be granted as a matter of law. Sanders v. Nicholson, 487 F.3d 861 (Fed. Cir. 2007); petition for cert. filed (U.S. March 21, 2008) (No. 07-1209). In February 2003, the RO sent the veteran a letter informing him of the types of evidence needed to substantiate his claim and its duty to assist him in substantiating his claim under the VCAA. The letter informed the veteran that VA would assist him in obtaining evidence necessary to support his claim, such as medical records, employment records, or records from other Federal agencies. He was advised that it is his responsibility to provide or identify, and furnish authorization where necessary for the RO to obtain, any supportive evidence pertinent to his claim. The Board finds that the content of the February 2003 letter provided to the veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify and assist. Subsequently, the April 2003 rating decision, June 2003 SOC, December 2004 SSOC, and December 2007 SSOC explained the basis for the RO's action, and the SOC and SSOCs provided him with additional 60-day periods to submit more evidence. It appears that all obtainable evidence identified by the veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. It is therefore the Board's conclusion that the veteran has been provided with every opportunity to submit evidence and argument in support of his claims, and to respond to VA notices. Moreover, the claimant has not demonstrated any error in VCAA notice, and therefore the presumption of prejudicial error as to such notice does not arise in this case. See Sanders v. Nicholson, supra. In addition to the foregoing harmless-error analysis, to whatever extent the decision of the Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006) requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date, the Board notes that the RO provided that information to the veteran in a letter of June 2007. Accordingly, we find that VA has satisfied its duty to assist the veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. Therefore no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefits flowing to the veteran. The Court of Appeals for Veteran Claims has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. II. Applicable Law and Regulations Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). Service connection may also be granted on a presumptive basis for certain chronic disabilities, including arthritis, when manifested to a compensable degree within the initial post-service year. 38 C.F.R. §§ 3.307, 3.309(a). The U.S. Court of Appeals for Veterans Claims has held that, in order to prevail on the issue of service connection, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of in- service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in- service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation in service will permit service connection. To show 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). When the disease identity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. Id. III. Facts and Analysis A. Bilateral foot disorder The veteran's service medical records (SMRs) show that in May 1984 he denied in a Report of Medical History that he had a bilateral foot disorder. His feet were found to be normal at a May 1984 physical examination. Private treatment notes from December 1995 indicate that the veteran complained of pain in his right foot when he stood for a long period of time. He also complained of corns on the foot, and was found to have calluses on the right foot. VA treatment notes from September 2001 indicate callus formation on the soles of both feet, which were reduced with a surgical scalpel. In October 2001 it was noted at VA treatment that the veteran had foot problems associated with calluses. The following month the veteran was wearing shoes with padding because of pain associated with the calluses. He had corns and scaling dry skin on the soles of both feet at a March 2003 VA physical examination. Later in March 2003 the veteran complained at VA treatment of corns on the bottom of his feet and tenderness on the fourth toe of the left foot near the nail. The veteran was diagnosed with plantar warts and was advised to soak the toe on his left foot to protect it from irritation. The RO did not afford the veteran a VA examination for his bilateral foot disorder, on the basis that there is already sufficient medical evidence to decide the claim, and the Board agrees. In McClendon v. Nicholson, 20 Vet. App. 79 (2006), the Court reviewed the criteria for determining when an examination is required by applicable regulation and how the Board applies 38 C.F.R. § 3.159(c). The three salient benchmarks are: competent evidence of a current disability or recurrent symptoms; establishment of a pertinent in-service event, injury, or disease; and indication that the current disability may be associated with an in-service event. The Board finds that there is no competent evidence of an in- service event or injury to the veteran's feet and no indication that the veteran's bilateral foot disorder is related to an in-service event. Therefore, the Board finds that the evidence of record does not trigger the necessity of an examination in order to decide this claim on the merits. See 38 C.F.R. § 3.159(c). After careful consideration of the record, the Board finds that the evidence preponderates against a grant of service connection for a bilateral foot disorder, and there is no competent evidence that a bilateral foot disorder was manifested within one year of service. Thus, the benefit-of- the-doubt doctrine does not apply, and the claim must be denied. See Gilbert, supra. B. Left knee disorder The veteran's SMRs show that in May 1984 he denied in a Report of Medical History that he had any knee disorder. His left lower extremity was found to be normal at a May 1984 physical examination. VA treatment records show that in October 2001 the veteran sustained a blunt trauma to the posterior aspect of his left knee when another person ran into him. The following week he complained of pain upon walking. Upon examination he had no marked tenderness to the popliteal area, and pedal pulses were present and of good quality. X-rays of the left knee were negative. At a March 2003 physical examination there were no abnormalities noted in relation to the veteran's left knee. Private treatment notes indicate that in July 2005 the veteran complained of a three-day history of a traumatic injury to the left knee manifested by swelling and a decrease of range of motion. Upon physical examination, he had an enlarged hematoma on the left knee medially and a decreased range of motion. The ligamentous structures of the knee appeared intact and there were good pulses in the dorsalis pedis and the posterior tibial arteries. The veteran was diagnosed with a left knee contusion. The RO did not afford the veteran a VA examination for his left knee disorder on the basis that there is already sufficient medical evidence to decide the claim, and the Board agrees. There is no competent evidence of a current left knee disorder or of an in-service event, injury, or disease related to the left knee. Therefore, the Board finds that the evidence of record does not trigger the necessity of an examination in order to decide the claim on the merits. See 38 C.F.R. § 3.159(c), McClendon, supra. After careful consideration of the record, the Board finds that the evidence preponderates against a grant of service connection for a left knee disorder, and there is no competent evidence that a left knee disorder was manifested within one year after service. Thus, the benefit-of-the- doubt doctrine does not apply, and the claim must be denied. See Gilbert, supra. ORDER Service connection for a bilateral foot disorder is denied. Service connection for a left knee disorder is denied. ________________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs