Citation Nr: 0811799 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 04-08 853 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a left knee disorder. 2. Entitlement to service connection for a right knee disorder. 3. Entitlement to service connection for an upper back/neck disorder. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD S. Layton, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty from October 1970 to October 1976 and from December 1976 to February 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2003 and November 2005 rating decisions by the Roanoke, Virginia Regional Office (RO) of the Department of Veterans Affairs (VA), which, in pertinent part, denied service connection for the disorders listed above. The issue of service connection for an upper back disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The evidence of record demonstrates that the veteran's claimed left knee disorder is not a result of any established event, injury, or disease during active service. 2. The evidence of record demonstrates that the veteran's claimed right knee disorder is not a result of any established event, injury, or disease during active service. CONCLUSIONS OF LAW 1. A left knee disorder was not incurred in or aggravated by active service, nor may service incurrence of arthritis 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 right knee disorder was not incurred in or aggravated by active service, nor may service incurrence of arthritis 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 As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a 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 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the duty to notify was not satisfied prior to the initial unfavorable decision on the claim by the RO. Under such circumstances, VA's duty to notify may not be "satisfied by various post-decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant's presentation." Rather, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the RO's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the RO) see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). In this case, the VCAA duty to notify was satisfied subsequent to the initial RO decision by way of a letter sent to the appellant in February 2005 that fully addressed all four notice elements. The letters informed the appellant of what evidence was required to substantiate the claim and of the appellant's and VA's respective duties for obtaining evidence. The appellant was also asked to submit evidence and/or information in his possession to the RO. Although a notice letter was not sent before the initial RO decision in this matter, the Board finds that this error was not prejudicial to the appellant because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the appellant been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the RO also readjudicated the case by way of a supplemental statement of the case issued in March 2006 after the notice was provided. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. During the pendency of this appeal, the Court in Dingess/Hartman found that the VCAA notice requirements applied to all elements of a claim. An additional notice as to these matters was provided in March 2006. The notice requirements pertinent to the issue addressed in this decision have been met and all identified and authorized records relevant to the matter have been requested or obtained. Further attempts to obtain additional evidence would be futile. The Board finds the available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA law and regulations and to move forward with the claim would not cause any prejudice to the appellant. General Law and Regulations-Service Connection Claims Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2007). VA regulations provide that where a veteran served 90 days or more of continuous, active military service during a period of war or after January 1, 1947, and certain chronic diseases, including degenerative arthritis, become manifest to a degree of 10 percent within one year from date of termination of 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, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has also held that when a claimed disorder is not included as a presumptive disorder direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during the service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a 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). The Federal Circuit has held that a veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The Court has held that where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Federal Circuit has also recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). VA is free to favor one medical opinion over another provided it offers an adequate basis for doing so. See Owens v. Brown, 7 Vet. App. 429 (1995). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102 (2007). Left and Right Knee Disorders In this case, service treatment records show that in November 1970, the veteran skinned a knee during the sixth week of basic training. A treatment record from December 1970 indicated that the veteran had pain in both of his knees for the previous seven days. He said that he could not keep up in runs because his pain increased. An X-ray of his knees in March 1980 was within normal limits. On service dental health questionnaires dated in August 1988, September 1989, and December 1991, the veteran indicated that he did not have arthritis or painful joints. Service examiners indicated on Reports of Medical Examinations in November 1978, October 1986, and January 1992 that the veteran had normal lower extremities. The veteran indicated on Reports of Medical History (RMH) dated in November 1978, October 1986, and January 1992 that he did not have "trick" or locked knee. During a VA outpatient visit in October 2001, the veteran complained of bilateral knee pain. The examiner noted that the veteran had normal joints, no edema, cyanosis, deformity, or trauma. It was observed that the veteran had crepitus of the right knee and bilateral knee pain, right worse than left. A VA treatment note from August 2002 stated that the veteran would run from two to six miles a day. He said that he injured his knee while running the previous week, but he continued to run on it. The examiner noted that the veteran walked with a left antalgic gait secondary to left knee pain. In a January 2003 statement, the veteran related that on December 14, 1970, he was riding in a military vehicle when he fell out. He said he landed on his back and then slipped onto his knees on asphalt. He indicated that since that time his knees swelled and were painful and that during a physical in November 2002, the doctor told him that she never felt anything like how his knee felt when it moved. He also commented that running with boots and combat gear did not help his knees. In February 2003 and September 2004, the veteran told a VA examiner that he had to ice his knee occasionally. He also used a brace and would take Aleve. He indicated that he would exercise by running, mountain biking, and hiking. The veteran stated in his June 2003 notice of disagreement that he injured his right knee on November 30, 1970. He said that he was thrown out of a military vehicle and landed head and knees down on the pavement. He indicated that he was treated two weeks later for bilateral knee pain related to the traumatic injuries he received on November 30, 1970. He stated that he knew that going to sick call would be detrimental to his career as a Marine. He said that he treated his knees himself, and he experienced continuous pain and limitation of motion. In his VA form 9 submitted in March 2004, the veteran said that there was no conflict between his January 2003 and June 2003 statements. He said that he had experienced continuous symptomatology of a bilateral knee disorder since the time of the injury. In a March 2005 letter, the veteran stated that he knew that his January 2003 and June 2003 statements differed. He said that when he wrote his January 2003 statement, he did not remember that he first landed on his back and head and then flipped onto his knees on the road. It happened a long time ago, and memories were coming back to him. He stated that after the November 1970 accident, he could not walk for a while. He could not walk up stairs, and he could not keep up on runs. He noted that there was no mention of his accident in his records. He said that all of the running, lifting, and marching during his active duty could be a factor. A statement from one of the veteran's co-workers received in June 2005 indicated that the veteran experienced knee pain. It was mentioned that the veteran had to wear knee supports to satisfy his work responsibilities. On VA examination in February 2006, the physician reviewed and commented on the veteran's medical history both during and after active duty. She observed that the veteran had experienced at least two isolated knee injuries while in service, but interim physical examinations did not mention anything about the veteran's knees or any chronic knee condition. She noted that the veteran remained active as a runner and had at least one injury to his knees after leaving active duty, although the veteran has complained of continual knee pain. The physician stated that she could not specifically identify the etiology of the veteran's bilateral knee disorder without resorting to mere speculation. She said that the veteran could have potentially had trouble with his knees during his military career that was not symptomatic enough to require ongoing treatment, but that was mere speculation. She observed that the level of activity that the veteran pursued after leaving active duty was enough to cause knee trouble. She also said that the veteran's post-service activity could aggravate an underlying knee condition, but there is no way to know what that underlying condition may be since no diagnosis of the knees was ever rendered during active duty. She concluded that there simply was not enough evidence to document a continued problem with the veteran's knees that originated in the military. She opined that there were too many sporadic incidences of complaints of knee pain and knee treatments with significant gaps in between those complaints and treatments to create a direct link in terms of ongoing knee problems, especially in the face of lack of diagnosis. Based on the evidence of record, the Board finds that the veteran's current claimed left and right knee disorders are not a result of any established event, injury, or disease during active service. In this matter, the Board finds the February 2006 VA examiner's opinion persuasive. The examiner reviewed and commented on all available treatment records from active duty and after service. Adequate reasons and bases were provided for her opinion. The examiner opined that it would be mere speculation to provide an etiology opinion linking the veteran's current complaints with any established event during his active service. Without medical evidence providing a link between the veteran's current symptoms and an established diagnosis or event during his active duty, service connection cannot be granted on a direct basis. See Hickson v. West, 12 Vet. App. 247, 253 (1999.). The Board has considered whether service connection for left and right knee disorders could be established on a presumptive basis. To establish service connection for arthritis on a presumptive basis, the disability must manifest itself to a compensable degree within one year of the veteran leaving active duty. See 38 C.F.R. §§ 3.307, 3.309 (2007). In this case, the January 1992 separation physical revealed normal lower extremities. No medical evidence demonstrates that the veteran experienced arthritis in his bilateral knees to a compensable level within a year after his honorable discharge from active duty. Therefore, service connection for left and right knee disorders cannot be established on a presumptive basis. The Board observes that the veteran stated in January 2003 that on December 14, 1970, he fell out of a military vehicle and landed on his back before slipping on to his knees. However, the Board also notes that the veteran stated in June 2003 that on November 30, 1970 he was thrown from a military vehicle and landed on his head and knees. Due to the inconsistencies in the veteran's statements, the Board finds the veteran's statements regarding the etiology of his claimed bilateral knee disorder to be less persuasive. Additionally, while the veteran may sincerely believe he has left and right knee disorders as a result of service, he is not a licensed medical practitioner and is not competent to offer opinions on questions of medical causation or diagnosis. Grottveit, 5 Vet. App. 91; Espiritu, 2 Vet. App. 492. Therefore, the Board finds entitlement to service connection is not warranted. When all the evidence is assembled VA is then 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 the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The preponderance of the evidence is against the claim. ORDER Entitlement to service connection for a left knee disorder is denied. Entitlement to service connection for a right knee disorder is denied. REMAND The revised VCAA duty to assist also requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim and in claims for disability compensation requires that VA provide medical examinations or obtain medical opinions when necessary for an adequate decision. 38 C.F.R. § 3.159. A medical examination or medical opinion is deemed to be necessary if the record does not contain sufficient competent medical evidence to decide the claim, but includes competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability, establishes that the veteran suffered an event, injury, or disease in service, or has a disease or symptoms of a disease manifest during an applicable presumptive period, and indicates the claimed disability or symptoms may be associated with the established event, injury, or disease. 38 C.F.R. § 3.159(c)(4). In the veteran's January 1992 RMH, he checked a box indicating that he had "recurrent back pain." The examiner noted on the back of the RMH that the veteran had occasional mid-thoracic muscle tension which was easily relieved. On VA compensation and pension examination in September 2005, the veteran reported that his cervical spine had been giving him trouble since 1990. He did not recall any particular injury, but he said that his pain could escalate to a 9 out of 10 on a 1 (low) to 10 (high) pain scale. An MRI revealed the presence of a posterior broad-based disk bulging at C4 and C5 with effacement of the ventral thecal sac. A diagnosis of degenerative disk disease of the cervical spine was given. However, while the medical examiner has identified the presence of a cervical spine disorder, he provided no opinion regarding its etiology. Thus, the Board finds additional development is required prior to appellate review. Accordingly, the case is REMANDED for the following action: 1. The RO must review the claims file and ensure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002) are fully complied with and satisfied. See also 38 C.F.R. § 3.159 (2007). 2. The RO should contact the veteran and obtain the names and addresses, and approximate dates of treatment of all medical care providers, VA and non-VA that treated the veteran for a cervical spine disorder since February 2006. After the veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. If the RO cannot obtain records identified by the veteran, a notation to that effect should be inserted in the file. The veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the veteran the opportunity to obtain and submit those records for VA review. 3. The veteran should be scheduled for a VA orthopedic examination by an appropriate physician to determine whether the veteran has a cervical spine disorder that manifested itself during or occurred as a result of his active duty service. All indicated tests and studies are to be performed. Prior to the examination, the claims folder must be made available to the physician for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. The physician is requested to provide an opinion as to the whether there is at least a 50 percent probability or greater (at least as likely as not) that a cervical spine disorder accounting for the veteran's symptoms was incurred in or is otherwise related to his period of military service. If the physician determines that it is not at least as likely as not that the cervical spine disorder was directly related to the veteran's military service, then the physician is asked to opine whether it is at least as likely as not (50 percent probability or greater) that the claimed cervical spine disorder was caused secondary to veteran's service-connected lumbar spine disorder. If not caused by the lumbar spine disorder, the examiner is requested to determine if the service connected lumbar spine disorder aggravates the cervical spine disorder. Any opinion should be provided based on the results of examination, a review of the medical evidence of record, and sound medical principles. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. Sustainable reasons and bases are to be provided for any opinion rendered. 4. The veteran must be given adequate notice of the date and place of any requested examinations. A copy of all notifications, including the address where the notice was sent must be associated with the claims folder. The veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 5. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed. All applicable laws and regulations should be considered. If any benefit sought remains denied, the veteran and his representative should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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. 2005). ______________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs