Citation Nr: 0813084 Decision Date: 04/21/08 Archive Date: 05/01/08 DOCKET NO. 06-24 783 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for the residuals of a right knee injury. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD L.M. Barnard, Senior Counsel INTRODUCTION The veteran served on active duty from July 3 to September 26, 1951. This appeal arose before the Board of Veterans' Appeals (Board) from an August 2005 rating decision of the San Diego Department of Veterans' Affairs (VA) Regional Office (RO), which denied entitlement to service connection for a right knee injury. The claim was subsequently transferred to the jurisdiction of the Montgomery, Alabama RO. FINDINGS OF FACT The evidence shows that the veteran's right knee disability was not present in service or until many years after and is not related to service or to an incident of service origin. CONCLUSIONS OF LAW A right knee injury was not incurred in service. 38 U.S.C.A. §§ 1110, 1131, 1153, 5107 (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. § 3.159, 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide; and to request that the claimant provide any evidence in the claimant's possession that pertains to the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The U.S. Court of Appeals for Veterans Claims has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006). The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). The U.S. Court of Appeals for the Federal Circuit recently held that any error in a VCAA notice should be presumed prejudicial. The claimant bears the burden of demonstrating such error. VA then bears the burden of rebutting the presumption, by showing that the essential fairness of the adjudication has not been affected because, for example, actual knowledge by the claimant cured the notice defect, a reasonable person would have understood what was needed, or the benefits sought cannot be granted as a matter of law. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). In May 2005, the RO sent the veteran a letter informing him of the types of evidence needed to substantiate his claim and its duty to assist him in substantiating his claim under the VCAA. The May 2005 letter informed the veteran that VA would assist him in obtaining evidence necessary to support his claim, such as records in the custody of a Federal department or agency, including VA, the service department, the Social Security Administration, and other pertinent agencies. He was advised that it was his responsibility to send medical records showing he has a current disability as well as records showing a relationship between his claimed disabilities and service, or to provide a properly executed release so that VA could request the records for him. The veteran was also specifically asked to provide to provide "any evidence in your possession that pertains to your claim." See 38 C.F.R. § 3.159(b)(1). The Board finds that the content of the May 2005 letter provided to the veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify and assist. He was advised of his opportunities to submit additional evidence. Subsequently, an October 2004 SOC provided him with yet an additional 60 days to submit more evidence. Thus, the Board finds that the purpose behind the notice requirement has been satisfied because the veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. In addition, it appears that all obtainable evidence identified by the veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. It is therefore the Board's conclusion that the veteran has been provided with every opportunity to submit evidence and argument in support of his claims, and to respond to VA notices. Moreover, the claimant has not demonstrated any error in VCAA notice, and therefore the presumption of prejudicial error as to such notice does not arise in this case. Accordingly, we find that VA has satisfied its duty to assist the veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. Therefore, no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the veteran. The Court of Appeals for Veterans Claims has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In addition, to whatever extent the recent decision of the Court in Dingess v. Nicholson, supra, requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date, the Board finds no prejudice to the veteran in proceeding with the present decision. Since the claim herein is being denied, such matters are moot. II. Applicable laws and regulations Establishing service connection generally 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 present disability. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995); aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under § 3.303(b), an alternative method of establishing the second and/or third Caluza element is through a demonstration of continuity of symptomatology. See Savage v. Gober, 10 Vet. App. 488 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of postservice continuity of the same symptomatology; and (3) medical or, in certain circumstances lay evidence of a nexus between the present disability and the postservice symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). Significant in case law is that lay persons are not competent to opine as to medical etiology or to render medical opinions. See Grover v. West, 12 Vet. App. 109, 112 (1999); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Lay testimony is competent, however, to establish that observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person may provide eyewitness account of medical symptoms). The Court of Appeals for Veterans Claims (CAVC) has emphasized that "symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (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.")). Barr v. Nicholson, 20 Vet. App. 528 (2007). Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). When there is an approximate balance in the 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. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. III. Factual background and analysis The veteran claimed that he had sustained an injury to the right knee while on a "death march" during service. He said that he had stepped on a trap, twisting the knee. He had not sought any treatment, stating that he had been told that it would not help. The veteran's enlistment examination was within normal limits. There were no records referring to any treatment of a right knee injury. The separation examination noted a two inch scar on the right knee that had been present since June 1951; there were no complications. Private treatment records show that the veteran had undergone a right knee arthroscopic procedure in March 1999. The postoperative diagnoses were internal derangement, moderate generalized arthritis, chronic synovitis, and a lateral meniscus tear. In May 2005, his physician stated that the veteran's post traumatic arthritis and meniscus tear of the right knee were most likely related to his injury during military service. The veteran was afforded a VA examination in July 2005. He reiterated his allegations of how he injured the right knee in service. He commented that he had had pain and discomfort in the right knee ever since his discharge from service. The examiner stated that "[i]t is the opinion of the reviewer that his chronic knee pain and discomfort is secondary to his accident that occurred while in the military." After a careful review of the evidence of record, it is found that entitlement to service connection for a right knee injury is not warranted. While the veteran has asserted that he injured his knee in service, there is no objective evidence of record to substantiate this claim. He stated that he had twisted his knee during a "death march," which is inconsistent with his short period of service. The service medical records show a laceration scar on the right knee at the time of his separation from service, which was noted to have been present since June 1951, that is, prior to service. However, there is no evidence of any injury to the knee sustained in service as described by the veteran. Furthermore, the silence of the service medical records and the lack of any knee complaints until 1999 argue against a finding that his brief, two-month period of service aggravated that laceration scar beyond its natural progression. While it is true that both a private physician and a VA examiner had stated that his post traumatic arthritis and internal derangement were related to his inservice injury, there is no indication that either physician reviewed the veteran's service medical records or other available treatment records prior to rendering these opinions. Medical opinions based upon inaccurate or unverifiable facts provided by the veteran have little or no probative value. See Reonal v. Brown, 5 Vet. App. 458 (1993). The objective evidence of record simply does not substantiate his assertions that he had injured his right knee in service. As a consequence, it is found that service connection cannot be awarded. It is true that the veteran's lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.159, 3.303(a); Jandreau; Buchanan, supra. In the instant case, in light of the above, the Board, as a finder of fact, finds the veteran's report of suffering a right knee injury during service and of having right knee problems since that time is not credible. Therefore, the preponderance of the evidence is against the veteran's claim for service connection for the residuals of a right knee injury. ORDER Entitlement to service connection for the residuals of a right knee injury is denied. ____________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs