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