Citation Nr: 0813027 Decision Date: 04/18/08 Archive Date: 05/01/08 DOCKET NO. 04-06 746 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for a right knee disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The veteran and his spouse ATTORNEY FOR THE BOARD K. Morgan, Counsel INTRODUCTION This case comes before the Board of Veterans' Appeals (the Board) on appeal from an October 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office in Phoenix, Arizona. Due to the veteran's relocation, jurisdiction over the case currently rests with the Department of Veterans Affairs Medical and Regional Office Center (RO) in Wichita, Kansas Procedural History The veteran served on active duty from July 1961 until August 1963. In July 2002, the RO received the veteran's claim of entitlement to service connection for a right knee disability. The October 2002 rating decision denied the veteran's claim. The veteran disagreed with the October 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 February 2004. In April 2004, the veteran presented sworn testimony at a hearing which was chaired by a RO hearing officer. Subsequently in August 2005, the veteran presented sworn testimony during a personal hearing before a Veterans Law Judge (VLJ) at the RO. That VLJ has left the Board. The veteran was advised of the unavailability of that VLJ to participate in the further appellate action on his claim and was offered the opportunity to elect a new hearing. In February 2007, the veteran advised the Board that he did not desire an additional hearing. Transcripts of both prior hearings have been associated with the veteran's VA claims folder and have been reviewed. This matter was previously before the Board in November 2005. At that time it was remanded to the Agency of Original Jurisdiction (AOJ) via the Appeals Management Center (AMC) for further development. In September 2006, the AMC issued a Supplemental Statement of the Case (SSOC) which continued to deny the veteran's claim. The matter was returned to the Board in September 2007 for further appellate action at that time it was determined that an additional remand was required. The additionally requested development has been completed and the in a December 2007 SSOC, the AOJ continued to deny the veteran's claim. The matter has once again been returned to the Board. FINDING OF FACT The weight of 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 November 2005 and again in September 2007. In essence, the Board instructed the AOJ to obtain the veteran's Social Security Administration records (done in December 2005) and to obtain additional medical nexus evidence (done in October 2007). The AOJ was then to readjudicate the claim. The claim was readjudicated in September 2006 and December 2007. 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 September 9, 2002, and September 28, 2007. 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 September 2002 letter specifically informed the veteran of the criteria of a successful claim of entitlement to service connection . The September 2002 VCAA letter specifically notified the veteran that he could submit or describe any additional evidence that may be relevant to his claim and provided him a statement to return which indicated "I have been informed that I can provide additional information which may support my claim. I have provided all of the information I have available and have no other information I want to add to my claim." Additionally, the letter invited the veteran to describe additional evidence that he wished for VA to obtain. The September 2007 letter contained a similar request. 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 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 a June 2006 letter from VA. 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 service medical records, private medical records and SSA records have been obtained. The veteran has identified no additional evidence which is not currently of record. The veteran was afforded a VA Compensation and Pension (C&P) examination in October 2002 and again, as requested by his representative and as directed by the Board's September 2007 remand, in October 2007. Additionally, the Board notes that in October 2007, the veteran's representative submitted additional records directly to the Board. The correspondence from the veteran's representative is unclear as to whether or not waiver of AOJ consideration was made. However, the Board finds that the treatments records are not, however, "pertinent" to the service connection issue here on appeal. The progress and treatment notes merely document the long ago conceded existence of a current disability of the veteran's right knee and memorialize the course of treatment already acknowledged and considered in the October 2007 medical examination opinion. Thus, this matter need not be remanded for additional consideration by the RO. See 38 C.F.R. § 20.1304 (2007). The Board notes that the veteran, through his representative, argues that the October 2007 examination report failed to adequately address the issue on appeal. He asks that the matter be remanded yet again for another examination. The Board does not agree. The examination report more than adequately answered the questions posed by the Board in its September 2007 remand and thereby meets the requirements of 38 C.F.R. § 3.326 (2007). 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. As noted above, transcripts of both hearings have been associated with the veteran's claims folder. Accordingly, the Board will proceed to a decision on the merits. (CONTINUED ON NEXT PAGE) 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. § 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, 1131 (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 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, specifically a fall, suffered in 1962 while serving on active duty. See transcript of the April 2004 RO hearing, page 2. In the interest of clarity a Hickson analysis will be employed. 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 based upon the veteran's SSA records that arthritis of the knees was initially diagnosed in 1994, 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 for a right knee muscle spasm in August 1961 which resolved without further complaint and treatment for knee pain in December 1962 which the veteran asserts occurred after a fall. 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 October 2002 VA medical examination and the October 2007 VA medical opinion, which were completed by different health care providers. In reaching their conclusions, each medical examiner made a thorough review of the veteran's claims folder. Both examiners offered well- supported conclusions and indicated specific consideration of the veteran's contentions concerning his condition. In pertinent part, the October 2002 report indicated that there was "no conclusive evidence" that the veteran suffered an in-service injury to his right knee. The examiner noted that an x-ray taken in 1962 was negative for any bony pathology. The October 2007 examination report similarly referenced the 1962 x-ray and also noted that the veteran's service separation examination was negative for any knee complaints. Further, observing that a 2002 x-ray showed only mild to moderate osteoarthritis, the examiner stated that it was "unlikely" that any injury that occurred in service would have led to only mild to moderate disease some 40 years later. Had there been a more serious injury in service, he intimated that the knee joint would have worn out more quickly. The examiner therefore stated that it would be speculation on his part to assume that his current knee disability was related any injury that occurred in service, which was not even documented. There is a long line of cases where the Court has rejected medical opinions as being too speculative. See Stegman v. Derwinski, 3 Vet. App. 228 (1992); Tirpak v. Derwinski, 2 Vet. App. 609 (1992), and Morris v. West, 13 Vet. App. 94, 97 (1999). The report of October 2007 examination clearly indicated that it would be "speculative" to draw an etiological relationship between the veteran's right knee disability and his active service. However, on closer scrutiny, the Board finds that the overall tone of the opinion is in the negative. The examiner specifically noted that the absence of evidence of an injury in service, the negative discharge examination, and the gap between discharge and the diagnosis of osteoarthritis all made it "unlikely" that a relationship existed between the veteran's right knee disability and any incident that may have occurred in service. 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. Specifically, none were noted at the veteran's May 1963 separation examination or in his separation report of history. 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 what the veteran stated in his February 2004 appeal. 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 over 30 years after service supports the October 2007 VA examiner's opinion that events in service were unlikely to be the cause of his right 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. ____________________________________________ MICHAEL A. HERMAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs