Citation Nr: 0811961 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 03-23 971 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a right knee disability. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD K. Morgan, Counsel INTRODUCTION The veteran served on active duty from August 1948 until August 1950. He also served in the United States Army Reserves from August 1950 until August 1955. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a February 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio (the RO). Procedural history In January 1999, the RO received the veteran's claim of entitlement to service connection for a right knee disability. A February 2002 RO decision denied the veteran's claim. The veteran disagreed with the February 2002 rating decision and initiated this appeal. The appeal was perfected by the timely submission of the veteran's substantive appeal (VA Form 9) in July 2003. This matter was previously before the Board in December 2004. At that time, it was remanded for additional evidentiary development. This was accomplished, and in October 2007 the VA Appeals Management Resource Center (AMC) issued a supplemental statement of the case (SSOC) which continued to deny the veteran's claim. The veteran's claims folder has been returned to the Board for further appellate proceedings. In April 2008, the undersigned granted the veteran's motion to advance this appeal on its docket due to his advanced age. See 38 C.F.R. § 20.900(c) (2006). FINDING OF FACT The competent and probative medical evidence of record is against a finding that the veteran's currently diagnosed osteoarthritis of the right knee is related to his military service or any incident thereof. CONCLUSION OF LAW Right knee arthritis was not incurred in or aggravated by service, nor may it be presumed to be. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113,1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran is seeking entitlement to service connection for a right knee condition. In the interest of clarity, the Board will first discuss certain preliminary matters. The Board will then render a decision. Stegall considerations As was alluded to in the Introduction, the Board remanded this case in December 2004. In essence, the Board instructed the agency of original jurisdiction (AOJ) to make additional efforts to obtain service medical records and also to obtain competent medical nexus evidence concerning the relationship, if any, between the veteran's current condition and service. The AOJ was then to readjudicate the claim. As will be discussed below, certain medical records were associated with the veteran's VA claims folder in May 2007. Although the veteran had been referred for a VA medical examination in June 2005, this was prior to the receipt of the additional records. The claims folder was referred for an additional VA medical opinion in August 2007. The AMC readjudicated the claim in the October 2007 SSOC. Thus, the Board's remand instructions have been complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance]. The Veterans Claims Assistance Act of 2000 (VCAA) The Board has given consideration to the provisions of the VCAA. The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). The VCAA alters the legal landscape in three distinct ways: standard of review, notice and duty to assist. The Board will now address these concepts within the context of the circumstances presented in this case. Standard of review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of 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. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2007). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Duty to notify The VCAA requires VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002) [a letter from VA to an appellant describing evidence potentially helpful to the appellant but not mentioning who is responsible for obtaining such evidence did not meet the standard erected by the VCAA]. After having carefully reviewed the record, the Board has concluded that the notice requirements of the VCAA have been satisfied with respect to the issues on appeal. Crucially, the RO informed the veteran of VA's duty to assist him in the development of his claim in letters dated April 23, 2001and December 15, 2004. In those letters, the veteran was advised of the provisions relating to the VCAA. Specifically, he was advised that VA would obtain all evidence kept by the VA and any other Federal agency. He was also informed that VA would, on his behalf, make reasonable efforts to obtain relevant private medical records not held by a Federal agency as long as he completed a release form for such. The VCAA letters specifically informed the veteran that for records he wished for VA to obtain on his behalf he must provide an adequate description of the records as well as authorization for records not held by the Federal government. Additionally, the letters specifically informed the veteran of the criteria of a successful claim of entitlement to service connection . The April 2001 letter also notified the veteran that for his individual claim evidence of "the claimed condition and its possible relationship to service" was required The April 2001 VCAA letter specifically notified the veteran that he could submit or describe any additional evidence that may be relevant to his claim: "Tell us if you know of any additional information or evidence that you want us to try to get for you." The letter went on to invite the veteran to send evidence directly to VA. See the April 2001 letter, page 2. The December 2004 letter contained a similar request. See the December 2004 letter, page 2. This complies with the requirements of 38 C.F.R. § 3.159 (b) in that the RO informed the veteran that he could submit or identify evidence other than what was specifically requested by the RO. In short, the record indicates that the veteran received appropriate notice under 38 U.S.C.A. § 5103 and Quartuccio. In general, a VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004). However, the initial adjudication of these claims occurred prior to the enactment of the VCAA, in December 1999. Accordingly, preadjudication notice was therefore a legal and factual impossibility. However, the veteran's claims were readjudicated following the issuance of the VCAA letters and after that the veteran was allowed the opportunity to present evidence and argument in response. See the October 2007 SSOC. The Board accordingly finds that there is no prejudice to the veteran in the timing of the VCAA notice. Moreover, the veteran has not alleged any prejudice. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006), No. 02-1077 (U.S. Vet. App. Dec. 21, 2006) [timing errors such as this do not have the natural effect of producing prejudice and, therefore, prejudice must be pled as to it]. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court observed that a claim of entitlement to service connection consists of five elements: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. The veteran in this case seeks to reopen a previously denied claim of entitlement to service connection. Because a service connection claim is comprised of five elements, the Court further held that the notice requirements of section 5103(a) apply generally to all five elements of that claim. Therefore, upon receipt of an application for a service connection claim, section 5103(a) and section 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, element (1), veteran status, is not at issue. The veteran's claims have been denied based on a lack evidence as to elements (2) and (3), current existence of a disability and relationship of such disability to the veteran's service. As explained above, he has received proper VCAA notice as to his obligations, and those of VA, with respect to those two crucial elements. The veteran received specific notice concerning elements (4) and (5) in the October 2007 SSOC, pages 11-12. Moreover, regarding elements (4) and (5), degree of disability and effective date, these are rendered moot via the RO's denial of service connection. In other words, any lack advisement as to those two elements is meaningless, because disability ratings and effective dates were not assigned. The Board additionally observes that the veteran appears to be fully conversant with what is required of him and of VA. Because there is no indication that there exists any evidence which could be obtained which would have an effect on the outcome of this case, no further VCAA notice is necessary. See De la Cruz v. Principi, 15 Vet. App. 143, 149 (2001) [VCAA notice not required where there is no reasonable possibility that additional development will aid the veteran]. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law provides that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2007). The Board finds that all relevant evidence necessary for an equitable resolution of the issue on appeal has been identified and obtained. The veteran's available service medical records and VA treatment records have been obtained. The veteran was afforded a VA Compensation and Pension (C&P) examination in June 2005, and a VA medical opinion was obtained in August 2007. In April 2001, the RO requested the veteran's service medical records. Medical records furnished in response to the RO's request cover the period of the veteran's active service. In his February 2003 Notice of Disagreement, the veteran asserted that the service medical records associated with the file were incomplete. The medical records which have been associated with the veteran's VA claims folder show some minor fire and water damage, probably due to a July 1973 fire at the National Personnel Records Center in St. Louis, Missouri. Given the condition of the records, it was unclear whether or not additional records were destroyed or were rendered illegible and removed. As directed in the Board's December 2004 remand, the AOJ made additional efforts to locate service medical records. In May 2007, reports of the Office of the Surgeon General were obtained and associated with the veteran's VA claims folder. It does not appear that further attempt to locate missing service medical records would be fruitful. See Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999) [VA's efforts to obtain service department records shall continue until the records are obtained or unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile]. In any event, as will be discussed below the Board has determined that an in-service injury in fact occurred, based on the veteran's statements as well as the existing service medical records. In short, the Board has carefully considered the provisions of the VCAA in light of the record on appeal, and for the reasons expressed above finds that the development of this claim has been consistent with the provisions of the VCAA. The veteran has been accorded ample opportunity to present evidence and argument in support of his claim. See 38 C.F.R. § 3.103 (2007). The veteran advised in his substantive appeal that he did not elect to present personal testimony at a hearing. Accordingly, the Board will proceed to a decision on the merits. Relevant law and regulations Service connection - in general In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2007). For certain chronic disorders, including arthritis, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of 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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Continuity of symptomatology The mere fact of an in-service injury is not enough; there must be evidence of a chronic disability resulting from that injury. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2007). Analysis Initial matter - missing service medical records As was described above, the veteran's service medical records which are in the claims folder show evidence of fire damage, and it is not certain that the file contains all of the original service medical records. Under such circumstances, the Court has held that there is a heightened obligation on the part of VA to explain findings and conclusions and to consider carefully the benefit of the doubt rule. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, the case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) [the Court declined to apply an "adverse presumption" where records have been lost or destroyed while in Government control which would have required VA to disprove a claimant's allegation of injury or disease in service in these particular cases]. Discussion The veteran seeks service connection for a right knee disability. In essence, he contends that he has a right knee disability which is related to an injury suffered in 1949 while serving on active duty. Specifically, the veteran has contended that he suffered a right knee injury during a football game while stationed in Germany in the fall of 1949. In the interest of clarity a Hickson analysis will be employed. Mild degenerative arthritis of the right knee has been shown by x-ray examination. Hickson element (1) is therefore satisfied. Regarding in-service incurrence of disease or injury, the Board will address each in turn. With respect to in-service incurrence of disease, the Board notes that the available service medical records do not indicate any diagnosis of degenerative joint disease or osteoarthritis of the right knee. Moreover, the veteran himself does not contend that he was diagnosed with any such condition during service. With respect to the one year presumptive period found in 38 C.F.R. § 3.309(a), it appears that arthritis was initially diagnosed in late 2000, well after the one year presumptive period. Hickson element (2) is not satisfied based on a finding of in-service or presumptive period incurrence of disease. However, concerning in-service incurrence of injury, service medical records include a treatment record from the 11th Field Hospital in Stuttgart, Germany which indicates a September 8, 1949 line of duty injury to the veteran's right knee with follow-up treatment. Moreover, in a June 1951 report of medical history the veteran responded "yes" to the question concerning "trick" or locked knee. Accordingly, in-service incurrence of injury has been shown, and Hickson element (2) is satisfied on that basis. Turning to the final Hickson element, medical nexus, there are of record two competent and probative sources of medical nexus information concerning the relationship, if any, between the veteran's in-service injury and his current condition. These are the June 2005 VA medical examination and the August 2007 VA medical opinion, which were completed by different health care providers. Both physicians found that it was less likely than not that the veteran's current knee disability is related to any event in service, to include the September 1949 knee injury. In reaching their conclusions, each medical examiner made a thorough review of the veteran's clams folder. Both examiners offered well- supported conclusions and indicated specific consideration of the veteran's contentions concerning his condition. The August 2007 VA examination specifically considered alternative causes for the veteran's condition and determined that the veteran's condition was more likely normal changes of aging. [The veteran is 77 years of age.] The VA medical opinions appear to be congruent with the medical evidence of record which although indicating an in- service injury show no identifiable residuals thereof. The Board acknowledges that the veteran has asserted that his VA treatment records are more probative than these examinations. However, the treatment records pertain only to current disability, not to medical nexus. The veteran's August 2000 treatment record reflects the veteran's report of in-service injury but specifically included the treating physician's conclusion that he was unsure of the source of the veteran's right knee complaints. The August 2000 examiner did not ascribe any right knee problem to service. Therefore, there is no competent medical evidence suggesting that the veteran's condition could be related to service. To the extent that the veteran himself believes that a connection exists between the in-service injury and his current right knee arthritis, it is now well established that lay persons without medical training, such as the veteran, are not competent to comment on medical matters such as cause of a disability. See Espiritu v. Derwinski, 2 Vet. App. 491, 494- 5 (1992); see also 38 C.F.R. § 3.159 (a)(1) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. The statements offered by the veteran are not competent medical evidence and do not serve to establish a medical nexus. The veteran has been accorded ample opportunity to present a medical opinion in support of his claim. He has not done so. See 38 U.S.C.A. § 5107(a) [it is a claimant's responsibility to support a claim for VA benefits]. Implicit in the veteran's claim is a contention that his knee has been bothering him continually since service. This is evidently what he told the August 2000 VA provider. The Board is of course aware of the provisions of 38 C.F.R. § 3.303(b) relating to chronicity and continuity of symptomatology. As discussed above, there is no objective medical evidence of arthritis in service or for decades thereafter. Supporting medical evidence is required. See Voerth v. West, 13 Vet. App. 117, 120-1 (1999) [there must be medical evidence on file demonstrating a relationship between the veteran's current disability and the claimed continuous symptomatology, unless such a relationship is one as to which a lay person's observation is competent]. Such evidence is lacking in this case. The veteran's lack of complaints for almost 50 years after service supports the August 2007 VA examiner's opinion that the aging process and not his service was the cause of his left knee problems. Continuity of symptomatology after service is therefore not demonstrated. Therefore, Hickson element (3) medical nexus, has not been met. The claim fails on that basis. For the reasons and bases set out above, the Board has determined that a preponderance of the evidence of record is against the veteran's claim of entitlement to service connection for a right knee disability. The benefits sought on appeal are therefore denied. ORDER Entitlement to service connection for a right knee disability is denied. ____________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs