Citation Nr: 0812661	
Decision Date: 04/16/08    Archive Date: 05/01/08

DOCKET NO.  98-07 047	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, 
Georgia


THE ISSUES

1. Entitlement to service connection for a left knee 
disorder.

2. Entitlement to service connection for a bilateral ankle 
disorder.


REPRESENTATION

Appellant represented by:	Georgia Department of Veterans 
Services


WITNESSES AT HEARING ON APPEAL

The veteran and his spouse


ATTORNEY FOR THE BOARD

Chris Yegen, Associate Counsel 
INTRODUCTION

The veteran served on active duty from July 1976 to July 
1979, as well as from February 1981 to January 1984 and a 
period of unrecognized service from January 1984 to June 1985 
(from which he was discharged under other than honorable 
conditions and which was held in a November 1994 
administrative decision to be a bar to VA benefits).

This appeal to the Board of Veterans' Appeals (Board) 
originated from a July 1996 rating decision of the Department 
of Veterans Affairs (VA) Regional Office (RO) in Atlanta, 
Georgia, which, in part, denied the veteran's petition to 
reopen his previously denied claims for service connection 
for left knee and bilateral ankle disorders.

The Board remanded the veteran's claims in January 1999, 
November 2003 and most recently in March 2006.  That March 
2006 remand was after reopening the claims on the basis of 
new and material evidence.  See 38 C.F.R. § 3.156.

In support of his claims, the veteran and his spouse 
testified at a video conference hearing in October 2002 
before an Acting Veterans Law Judge of the Board.  In January 
2008, the Board informed the veteran that the Veterans Law 
Judge who had conducted that hearing was no longer employed 
by the Board.  So the veteran was asked whether he wanted 
another hearing before a Veterans Law Judge that will 
ultimately decide this appeal.  See 38 C.F.R. § 20.707.  The 
veteran, however, did not respond to this request for 
clarification of whether he wants another hearing.  So the 
Board is going ahead and deciding his appeal.




FINDINGS OF FACT

1.  Several attempts by the RO and Appeals Management Center 
(AMC) to obtain additional service medical and personnel 
records have not discovered any reports pertaining to a left 
knee injury during service, despite the veteran's allegations 
to the contrary.  And although he has a current diagnosis of 
left knee degenerative joint disease (i.e., arthritis), there 
is no indication this condition initially manifested within 
one year of his discharge from the military and there also is 
no medical nexus evidence otherwise linking this condition to 
his military service, including to any injury he may have 
sustained.

2.  The veteran's service medical records show one instance 
of a complaint during service concerning his ankles.  
However, this was shown to be a temporary, acute and 
transitory, condition that resolved with treatment and did 
not result in permanent residual disability.  There is no 
competent medical nexus evidence suggesting any current 
bilateral ankle disorder is due to his military service or 
that he had arthritis in his ankles within one year of his 
discharge.


CONCLUSIONS OF LAW

1.  The veteran's left knee disorder was not incurred in or 
aggravated by service and may not be presumed to have been.  
38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2002); 
38 C.F.R. §§ 3.303, 3.307, 3.309 (2007).

2.  The veteran's bilateral ankle disorder also was not 
incurred in or aggravated by service and may not be presumed 
to have been.  38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 
(West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007).




REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  The Duties to Notify and Assist

VA has complied with the duty-to-notify provisions of the 
Veterans Claims Assistance Act (VCAA).  38 U.S.C.A. 
§ 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 
16 Vet. App. 183, 197 (2002).  In particular, letters from 
the RO and AMC in November 2001, May 2004, April 2006 and 
August 2006 (1) informed the veteran of the information and 
evidence not of record that is necessary to substantiate his 
claims; (2) informed him of the information and evidence that 
VA would obtain and assist him in obtaining; (3) informed him 
of the information and evidence he was expected to provide; 
and (4) requested that he provide any evidence in his 
possession pertaining to his claims, or something to the 
effect that he should "give us everything you've got 
pertaining to your claims."  Pelegrini v. Principi, 18 Vet. 
App. 112 (2004) (Pelegrini II).  

VA also has complied with the Court's holding in 
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd 
sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007), which 
states that the VCAA notice requirements of 38 U.S.C.A. § 
5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements 
of a service-connection claim:  (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 of the disability.  The 
AMC complied with these requirements in Dingess, post three 
remands, when it sent VCAA notice letters in April and August 
2006 discussing the downstream disability rating and 
effective date elements of the claims and then went back and 
readjudicated the claims in the July 2007 supplemental 
statement of the case (SSOC).  This is important to point out 
because the Federal Circuit Court recently held that a 
statement of the case (SOC) or supplemental SOC (SSOC) can 
constitute a "readjudication decision" that complies with 
all applicable due process and notification requirements if 
adequate VCAA notice is provided prior to the SOC or SSOC.  
See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 
2007) (Mayfield IV).  As a matter of law, the provision of 
adequate VCAA notice prior to a readjudication "cures" any 
timing problem associated with inadequate notice or the lack 
of notice prior to an initial adjudication.  See also 
Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

Even if arguably there is any deficiency in the notice to the 
veteran or the timing of the notice it is harmless error.  
See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) 
(finding that the Board had erred by relying on various post-
decisional documents for concluding that adequate 38 U.S.C.A. 
§ 5103(a) notice had been provided to the appellant, but 
determining nonetheless that the evidence established the 
veteran was afforded a meaningful opportunity to participate 
effectively in the adjudication of his claims, so found the 
error was harmless).

If there was any deficiency in the notice to the veteran, the 
Board finds that the presumption of prejudice on VA's part 
has been rebutted:  (1) based on the communications sent to 
him over the course of this appeal, and his responses, 
he clearly has actual knowledge of the evidence he is 
required to submit and needed to substantiate his claims; and 
(2) based on his contentions he is reasonably expected to 
understand from the notices what was needed.  See Sanders v. 
Nicholson, 487 F.3d 881 (2007).  

VA also fulfilled its duty to assist by obtaining all 
relevant evidence concerning the claims under 38 U.S.C.A. 
§ 5103A and 38 C.F.R. § 3.159.  The RO and AMC obtained all 
pertinent medical and other records the veteran and his 
representative identified.  

VA has a duty to provide a medical examination and/or seek a 
medical opinion when such examination or opinion is necessary 
to make a decision on the claim.  VA considers an examination 
or opinion necessary to make a decision on the claim if the 
evidence of record (1) contains competent evidence that the 
claimant has a disability, or persistent recurring symptoms 
of disability; (2) indicates the disability or symptoms may 
be associated with his military service; and (3) contains 
insufficient medical evidence for VA to make a decision on 
the claim.  See McLendon v. Nicholson, 20 Vet. App. 79 
(2006), citing 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 
3.159(c)(4).

Here, though, there is no evidence on file suggesting the 
veteran's left knee and bilateral ankle disorders are related 
to his military service, except for his unsubstantiated lay 
allegations, which are insufficient to trigger VA's duty to 
provide an examination.  VA is not obligated to provide an 
examination for a medical nexus opinion where, as here, the 
supporting evidence of record consists only of lay 
statements.  See Duenas v. Principi, 18 Vet. App. 512, 519 
(2004).  

Accordingly, the Board finds that no further assistance is 
needed to meet the requirements of the VCAA or Court.

II.  Whether the Veteran is Entitled to Service Connection 
for a Left Knee Disorder

The veteran claims that his left knee condition is due to an 
injury he sustained while in the military.  During his 
October 2002 video conference hearing, he contended that he 
sustained this injury to his left knee in June 1978, in 
Panama, when an armored personnel carrier (APC) flipped.

Service connection is granted for disability resulting from 
disease or injury incurred in or aggravated by service.  See 
38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a).  In general, 
service connection requires (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).

Certain conditions involving what are generally recognized as 
diseases of a chronic nature, such as arthritis, will be 
presumed to have been incurred in service if manifested to a 
compensable degree of at least 10 percent within one year 
after service.  This presumption, however, is rebuttable by 
probative evidence to the contrary.  38 U.S.C.A. §§ 1101, 
1112, 1113; 38 C.F.R. §§ 3.307, 3.309.



The veteran's service medical records do not make any 
reference to the alleged left knee injury.  And during his 
January 1979 separation examination, his lower extremities 
were normal.  Moreover, in the accompanying report of his 
medical history, he checked the box "No" for a trick or 
locked knee, arthritis, and a bone, joint, or other 
deformity.  It equally deserves mentioning that, during a 
subsequent medical examination in January 1981, his lower 
extremities again were normal.  And, again, in the 
accompanying report of his medical history, he again checked 
the box "No" for a trick or locked knee, arthritis, and a 
bone, joint, or other deformity.  

The veteran maintained during his October 2002 video 
conference hearing that he had, indeed, hurt his left knee 
during service, in June 1978, while in Panama.  He indicated 
that he sustained the injury during a training exercise in an 
APC that flipped.  He said the driver died in the accident.  
He described treatment at a battalion aid station.  He 
indicated that he was told to elevate his legs and feet and 
keep them wrapped in ice.  He also noted that he went to a 
garrison aid station and was put on P3 or P4 permanent 
profile.  He said he was not seen in a hospital in Panama.  
He indicated that he went to a troop medical clinic at Fort 
Hood on two occasions, but did not go to a hospital.  In 
addition, he noted that during his second enlistment, he 
received treatment at a military hospital in Berlin, 
West Germany, on an outpatient basis.

Unfortunately, the evidence of record fails to corroborate 
any of the veteran's statements concerning these alleged 
events in question or provide indications of any complaints 
of or treatment for his left knee during service, including 
as a residual of trauma.

If, as here, there is no evidence of a chronic condition 
during service, then a showing of continuity of 
symptomatology after service is required to support the 
claim.  See 38 C.F.R. § 3.303(b).  Evidence of a chronic 
condition must be medical, unless it relates to a condition 
to which lay observation is competent.  See Savage v. Gober, 
10 Vet. App. 488, 495-498 (1997).  If service connection is 
established by continuity of symptomatology, there must be 
medical evidence that relates a current condition to that 
symptomatology.  Id.

VA outpatient records from 1993 and 1994 show the veteran 
received treatment for his left knee.  According to VA 
outpatient reports in October 1993, he mentioned an injury to 
his left knee and left foot in service.  In March 1994, he 
again described injuring his left knee in service when a 
machine gun mount fell on it.

In a November 1994 rating decision, the RO denied service 
connection for residuals of the claimed left knee injury.  
The RO denied the claim because there was no evidence of 
treatment for a left knee condition during service.

VA received additional outpatient treatment records dating to 
1997.  And according to an April 1997 outpatient treatment 
report, the veteran had arthroscopic surgery on his left knee 
in May 1994 with flap tear of patella cartilage.  Subsequent 
reports in April 1996 and 1997 note a diagnosis of status 
post old knee injury with no effusion, stable and with a 
range of motion of 0-100 degrees.

In his January 1998 notice of disagreement (NOD), the veteran 
indicated he wanted the RO to search for what he believed 
were his missing service medical records.  But in May 1999, 
the National Personnel Records Center (NPRC) confirmed that 
all of his service medical records already had been sent to 
the RO.  

In a September 1999 statement, the Grady Health System 
indicated that it had no information concerning the veteran.  

An August 2000 VA outpatient record shows complaints of 
chronic left knee pain as a result of a motor vehicle 
accident (presumably the same claimed incident in service).  
The veteran reported no locking or giving out of his left 
knee and an MRI of this knee in 1999 was negative.

Regarding current treatment, the veteran noted current 
complaints and a diagnosis of left knee degenerative joint 
disease.  VA records from February 2005 note treatment for 
left knee pain and a private treatment report in February 
1995 notes chronic knee pain associated with arthritis.  

Since the veteran has a confirmed diagnosis, the 
determinative issue is whether his current left knee disorder 
is somehow attributable to his military service, 
and in particular the alleged injury.  Watson v. Brown, 4 
Vet. App. 309, 314 (1993) ("A determination of service 
connection requires a finding of the existence of a current 
disability and a determination of a relationship between that 
disability and an injury or disease incurred in service.").  
See, too, Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 
2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); 
Hibbard v. West, 13 Vet. App. 546, 548 (2000); and 
Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998).

Unfortunately, though, there is no competent evidence 
suggesting the veteran had a left knee disorder during 
service, or arthritis within one year of his discharge, and 
no physician or other competent clinician has otherwise 
linked this condition to his military service.  Indeed, his 
earliest potential diagnosis of a left knee disorder was in 
October 1993, 8 years after his separation from service.  
This lapse between his separation from active duty and the 
first diagnosis of a left knee disorder provides highly 
probative evidence against his claim.  See Maxson v. Gober, 
230 F.3d 1330 (Fed. Cir. 2000) (ruling that a prolonged 
period without medical complaint can be considered, along 
with other factors, as evidence of whether an injury or a 
disease was incurred in service which resulted in any chronic 
or persistent disability).

Although the veteran and his spouse are competent to report 
symptoms of what he believes was a left knee injury during 
his military service, they are not competent to etiologically 
link his current left knee disorder to his service, including 
to the alleged injury.  38 C.F.R. § 3.159(a)(2); Jandreau v. 
Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. 
Nicholson, 21 Vet. App. 303, 310 (2007).  See also Layno v. 
Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between 
competency ("a legal concept determining whether testimony 
may be heard and considered") and credibility ("a factual 
determination going to the probative value of the evidence to 
be made after the evidence has been admitted")).

For these reasons and bases, the preponderance of the 
evidence is unfavorable, in turn meaning the benefit-of-the-
doubt doctrine does not apply and VA must deny the claim.  
38 C.F.R. § 3.102.

III.  Whether the Veteran is Entitled to Service Connection 
for a Bilateral Ankle Disorder

The veteran also claims that his bilateral ankle disorder is 
due to an injury he sustained while in the military, in the 
same incident as when he allegedly injured his left knee.

The statutes and regulations governing this claim are the 
same as those governing the claim concerning his left knee, 
so will not be repeated.  See again 38 U.S.C.A. §§ 1101, 
1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309.

The veteran's service medical records note one instance of 
treatment for bilateral ankle pain in April 1982.  He had 
sustained an injury from stepping on black palm when he was 
in Panama.  The examiner found no evidence of deformity or 
edema.  Indeed, the examiner diagnosed bilateral ankle pain 
but did not find a chronic condition.  At a periodic medical 
examination only some two months later, in June 1982, the 
veteran's lower extremities were normal.  And in the 
accompanying report of his medical history, he checked the 
box "No" for arthritis and a bone, joint, or other 
deformity.

So again, unfortunately, the evidence of record simply fails 
to corroborate any of the veteran's statements concerning the 
alleged events in question or show any treatment for a 
bilateral ankle disorder during service that might have 
resulted in chronic residual disability.  By all accounts, 
the one isolated instance of relevant treatment during 
service was merely for an acute and transitory condition that 
completely resolved prior to discharge.

If, as here, there is no evidence of a chronic condition 
during service, then a showing of continuity of 
symptomatology after service is required to support 
the claim.  See 38 C.F.R. § 3.303(b).  Evidence of a chronic 
condition must be medical, unless it relates to a condition 
to which lay observation is competent.  See Savage v. Gober, 
10 Vet. App. 488, 495-498 (1997).  If service connection is 
established by continuity of symptomatology, there must be 
medical evidence that relates a current condition to that 
symptomatology.  Id.

The RO denied the claim for a bilateral ankle condition in 
July 1996 because the veteran had received treatment for this 
condition only once during service, which was a temporary 
condition that resolved with treatment, leaving no permanent 
(i.e., chronic) residual disability. 

A VA outpatient treatment report in April 1997 notes 
complaints of left ankle pain and a popping sound (medically 
referred to as crepitus).  A February 1995 private treatment 
record from Dr. E.V.S notes chronic ankle pain associated 
with arthritis.  An August 2000 report of medical history 
shows complaints of chronic bilateral ankle pain as a result 
of a motor vehicle accident several years earlier (presumably 
the same alleged injury in service). 

Regarding current treatment, the veteran indicated he had 
recently received treatment for his ankles.  However, VA 
treatment records from 2001 to 2005 do not show any 
complaints of or treatment for his ankles.  

In any event, since the veteran has a confirmed diagnosis, 
the determinative issue is whether his bilateral ankle 
disorder is somehow attributable to his military service, and 
in particular to the alleged injury.  Watson v. Brown, 4 Vet. 
App. 309, 314 (1993) ("A determination of service connection 
requires a finding of the existence of a current disability 
and a determination of a relationship between that disability 
and an injury or disease incurred in service.").  See, too, 
Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); 
D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); 
Hibbard v. West, 13 Vet. App. 546, 548 (2000); and 
Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998).

Unfortunately, there is no competent evidence suggesting the 
veteran had a chronic (again, meaning permanent) bilateral 
ankle disorder during service.  Also, of equal or even 
greater significance, no physician or other competent 
clinician has otherwise linked any current ankle disorder to 
the veteran's military service, including to any injury he 
may have sustained in the incident in question.   Indeed, his 
earliest potential diagnosis of a bilateral ankle disorder 
was in April 1997, about 9 years after his discharge from 
service.  This lapse between his separation from active duty 
and the first diagnosis of a bilateral ankle disorder 
provides highly probative evidence against concluding this 
condition is related to his military service.  See Maxson v. 
Gober, 230 F.3d 1330 (Fed. Cir. 2000) (ruling that a 
prolonged period without medical complaint can be considered, 
along with other factors, as evidence of whether an injury or 
a disease was incurred in service which resulted in any 
chronic or persistent disability).

Although the veteran and his spouse are competent to report 
symptoms of what he believes were ankle injuries during his 
military service, they are not competent to etiologically 
link any current ankle disorder to service.  38 C.F.R. § 
3.159(a)(2); Jandreau v. Nicholson, 492 F.3d 1372, 1377 
(Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 
(2007).  See also Layno v. Brown, 6 Vet. App. 465, 469 (1994) 
(distinguishing between competency ("a legal concept 
determining whether testimony may be heard and considered") 
and credibility ("a factual determination going to the 
probative value of the evidence to be made after the evidence 
has been admitted")).

In addition, there is no objective clinical indication of 
arthritis either during service or even within the one-year 
presumptive period after the veteran's military service 
ended.  So he is not entitled to application of the 
presumptive provisions for this condition.  38 U.S.C.A. 
§§ 1101, 1112, 1113, 1137; 38 U.S.C.A. §§ 3.307, 3.309.

Although there admittedly is mention in some of the records 
cited to the veteran having a history of left knee and ankle 
problems dating back to the alleged accident in service, a 
bare transcription of lay history is not transformed into 
medical evidence simply because it was transcribed by a 
medical professional.  In other words, evidence which is 
simply information recorded by a medical examiner, unenhanced 
by any additional medical comment by that examiner, does not 
constitute competent medical evidence....  See LeShore v. 
Brown, 8 Vet. App. 406, 409 (1995).  See also Robinette v. 
Brown, 8 Vet. App. 69, 77 (1995) (indicating that a veteran's 
account of what a physician purportedly said, filtered as it 
is through a lay person's sensibilities, also is not 
competent medical evidence).

For these reasons and bases, the preponderance of the 
evidence is unfavorable, in turn meaning the benefit-of-the-
doubt doctrine does not apply and VA must deny the claim.  
38 C.F.R. § 3.102.


ORDER

The appeal is denied.



____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs