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