Citation Nr: 0813618 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 04-37 168 ) DATE ) ) On appeal from the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Thomas A. Pluta, Counsel INTRODUCTION The veteran had active service from September 1965 to August 1969. This appeal to the Board of Veterans Appeals (Board) arises from a December 2003 rating action that denied service connection for a bilateral knee disability. By decision of August 2007, the Board remanded this case to the RO for further development of the evidence and for due process development. The Board's decision on the issue of service connection for a left knee disability is set forth below. The issue of service connection for a right knee disability is addressed in the REMAND section of this decision following the ORDER, and is being remanded to the RO via the Appeals Management Center (AMC) in Washington, D.C. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim for service connection for a left knee disability has been accomplished. 2. A left knee disability was not shown present in service or for many years thereafter, and the competent evidence establishes no nexus between any such current disability and the veteran's military service or any incident thereof. CONCLUSION OF LAW The criteria for service connection for a left knee disability are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist In November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002). To implement the provisions of the law, the VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2006). The VCAA and its implementing regulations essentially include, upon the submission of a substantially-complete application for benefits, an enhanced duty on the part of the VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify him what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of the VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Considering the record in light of the above criteria, the Board finds that all notification and development action needed to render a fair decision on the claim for service connection for a left knee disability on appeal has been accomplished. February 2003 pre-rating and August 2007 post-rating RO letters informed the veteran and his representative of the VA's responsibilities to notify and assist him in his claim, and what was needed to establish entitlement to service connection (evidence showing an injury or disease that began in or was made worse by his military service, or that there was an event in service that caused an injury or disease). Thereafter, he was afforded opportunities to respond. The Board thus finds that the veteran has received sufficient notice of the information and evidence needed to support his claim, and has been provided ample opportunity to submit such information and evidence. Additionally, those RO letters provided notice that the VA would make reasonable efforts to help the veteran get evidence necessary to support his claim, such as medical records (including private medical records), if he gave it enough information, and if needed, authorization to obtain them. Those letters further specified what records the VA was responsible for obtaining, to include Federal records, and the type of records that the VA would make reasonable efforts to get, and requested the veteran to furnish medical records that he had that pertained to his claim. The Board thus finds that those letters collectively satisfy the statutory and regulatory requirement that the VA notify a claimant what evidence, if any, will be obtained by him and what evidence will be retrieved by the VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In the decision of Pelegrini v. Principi, 18 Vet. App. 112 (2004), the U.S. Court of Appeals for Veterans Claims (Court) held that proper VCAA notice should notify a veteran of: (1) the evidence that is needed to substantiate a claim; (2) the evidence, if any, to be obtained by the VA; (3) the evidence, if any, to be provided by him; and (4) a request by the VA that the claimant provide any evidence in his possession that pertains to the claim. As indicated above, all 4 content of notice requirements have been met in this appeal. Pelegrini also held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided at the time that, or immediately after, the VA Secretary receives a complete or substantially complete application for VA-administered benefits. In that case, the Court determined that the VA had failed to demonstrate that a lack of such pre-adjudication notice was not prejudicial to the claimant. In the matter now before the Board, documents meeting the VCAA's notice requirements were furnished to the veteran both before and after the December 2003 rating action on appeal. The Board thus finds that any delay in issuing the full 38 U.S.C.A. § 5103(a) notice was not prejudicial to the veteran because it did not affect the essential fairness of the adjudication, in that his claim was fully developed and readjudicated after full notice was provided, as reflected in the November 2007 Supplemental Statement of the Case (SSOC). See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir.2006). As indicated above, the veteran has been notified of what was needed to substantiate his claim, and afforded numerous opportunities to present information and/or evidence in support thereof. As a result of RO development and the Board remand, comprehensive documentation, identified below, has been associated with the claims folder and considered in connection with the veteran's appeal. Hence, the Board finds that any failure on the part of the VA in not completely fulfilling VCAA notice requirements prior to the RO's initial adjudication of the claim is harmless. See ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998); Cf. 38 C.F.R. § 20.1102 (2005). In March 2006, during the pendency of this appeal, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all 5 elements of a service connection claim (veteran status, the existence of a disability, a connection between the veteran's service and that disability, the degree of disability, and the effective date pertaining thereto). In this case, the Board finds that the veteran was furnished notice of the latter requirements in the August 2007 RO letter. Additionally, the Board finds that all necessary development on the claim currently under consideration has been accomplished. The RO, on its own initiative and pursuant to the Board remand, has made reasonable and appropriate efforts to assist the appellant in obtaining all evidence necessary to substantiate his claim, to include obtaining service and post-service VA and private medical records through 2007. The veteran was afforded VA examinations in September 2003 and September 2007. Significantly, the veteran has not identified, nor does the record otherwise indicate, any existing, pertinent evidence, in addition to that noted above, that has not been obtained. The record also presents no basis for further development to create any additional evidence to be considered in connection with the matter currently under consideration. Under these circumstances, the Board finds that the veteran is not prejudiced by appellate consideration of the claim for service connection for a left knee disability on appeal at this juncture, without directing or accomplishing any additional notification and/or development action. II. Analysis Under the applicable criteria, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection also may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served continuously for 90 days or more during a period of war and arthritis becomes manifest to a degree of 10% within 1 year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of it during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The veteran contends that he fractured his left fibula in service and that his current left knee disability is the result thereof. The service records are completely negative for complaints, findings, or diagnoses of any left knee disability. In February 1969, the veteran was seen with a history of an injury at work, a non-displaced "greenstick" fracture of the distal third of the left fibula. There were no findings pertaining to the left knee. He was placed in a short-leg walker cast. When seen again 3 weeks later, X-rays revealed good healing, and he was instructed to begin weight-bearing. The lower extremities were normal on August 1969 separation examination. The first objective demonstration of a left knee disability was that for which the veteran underwent an arthrotomy and left medial meniscectomy (which showed very serious shredding) at St. Joseph's Hospital in March 1982, over 12 years post service, at which time he gave a history of multiple episodes of left knee giving-way and falling. However, there was no history relating the knee disability to military service or any incident thereof, to include the 1969 left fibula fracture. On September 2003 VA examination, the veteran gave a history of left knee pain that had its onset in service. However, the appellant's own reported history of alleged inservice left knee symptoms does not constitute competent evidence of the actual inservice onset of any current left knee disability. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (evidence that is simply information recorded by a medical examiner, unenhanced by any additional medical comment by him, does not constitute competent medical evidence, and a bare transcription of a lay history is not transformed into competent medical evidence merely because the transcriber happens to be a medical professional). Current examination showed no palpable deformity of the left fibula. X-rays revealed some abnormality of the distal fibula in the form of cortical thickening that could be post- traumatic, and the radiologist's impression was probable old trauma. The diagnostic impression was degenerative left knee meniscus status post meniscectomy, now with left knee chondromalacia; nondisplaced "greenstick" fracture of the left fibula not found. October 2003 VA X-rays revealed mild left knee osteoarthritic changes, in particular the medial compartment, but the 2003 VA records contained no medical opinion relating the current left knee disability to military service or any incident thereof, to include the 1969 left fibula fracture. On September 2007 VA examination, the examiner reviewed the claims folder and service medical and other records. The veteran gave a history of a nondisplaced left fibula "greenstick" fracture in February 1969 with left knee complaints since that time - but again, the Board observes that that reported history of alleged inservice left knee symptoms does not constitute competent evidence of the actual inservice onset of any current left knee disability. See LeShore, 8 Vet. App. at 409. Current examination showed a quite prominent left fibular head that was likely due to varus deformity, and X-rays revealed degenerative changes of the knee joint. The diagnoses were history of nondisplaced left fibula "greenstick" fracture in 1969, and left chondromalacia of the upper tibia with medial meniscectomy in 1982. Considering that there was no evidence of left fibula region pain since the initial fracture, no left knee problems documented until 1982, and the similar findings on current X- rays, the examiner opined that it was less likely as not that the veteran's current left knee arthritis, chondromalacia, and previous meniscus injury were caused by the inservice left fibula fracture. The aforementioned evidence reveals that the veteran's left knee disability was first manifested many years post service, and that the competent and persuasive evidence does not establish a nexus between that disability and his military service or any incident thereof. The sole medical opinion of record, the September 2007 VA opinion, establishes that the veteran's current left knee disability was not caused by or a result of his inservice left fibula fracture. The Board accords great probative value to the VA medical opinion, inasmuch as it was based on the examiner's thorough review of the veteran's military and medical history, and current examination of the veteran, and the veteran has submitted no medical opinion to the contrary. Under the circumstances, the Board finds no basis upon which to grant service connection for a left knee disability. In addition to the medical evidence, the Board has considered the veteran's assertions; however, such do not provide any basis for allowance of the claim. While the veteran may believe that he currently has a left knee disability that is related to his military service, there is no medical support for such contention. The Board emphasizes that the appellant is competent to offer evidence as to facts within his personal knowledge, such as his own symptoms. However, medical questions of diagnosis and etiology are within the province of trained medical professionals. Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As a layman without the appropriate medical training or expertise, the appellant simply is not competent to render an opinion on such a medical matter. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) (a layman is generally not capable of opining on matters requiring medical knowledge). Hence, his assertions in this regard have no probative value. Under these circumstances, the Board concludes that service connection for a left knee disability must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for a left knee disability is denied. REMAND Considering the record in light of the duties imposed by the VCAA and its implementing regulations, and the Board's August 2007 remand, the Board finds that all notice and development action needed to fairly adjudicate the claim for service connection for a right knee disability remaining on appeal has not been accomplished. The service medical records show that the veteran was seen for complaints of right knee locking in January 1967, and gave a history of a broken kneecap in the 6th grade, prior to service. More recently, the knee had given way on 2 occasions. Current examination showed no limitation of motion or joint tenderness or swelling, and an ace wrap was prescribed. In February 1967, the veteran gave a history of a direct right patella contusion at the age of 12, and that he had been told a year later that he had a fracture. He had had no problems with the knee until the past 4-5 months, when he noted occasional instability and a sensation of locking. Current examination showed no effusion, joint tenderness, or crepitus. There was full motion, and the joint was stable. The McMurray sign was absent. X-rays were normal, without evidence of a patellar fracture. The lower extremities were normal on August 1969 separation examination. Post service, the veteran was seen at St. Joseph's Hospital in June 1984 with a 1-year history of medial right knee pain. There was no history of injury. Current X-rays were within normal limits, and the impression was rule out right knee meniscus injury, possible medial ligamentous strain. September 2003 VA examination showed a mild right knee varus deformity and no laxity. October 2003 VA X-rays revealed mild right knee osteoarthritic changes, in particular the medial compartment. In September 2007, the veteran's right knee was examined by a nurse practitioner (N.P.) at a VA medical facility, but appellate review of the examination report indicates that the N.P. was unable to furnish an adequate medical opinion as to the relationship, if any, between the veteran's inservice right knee symptoms and his post-service right knee arthritis. The Board thus finds that the RO should arrange for the veteran to undergo another VA orthopedic examination by a physician to obtain information needed to equitably adjudicate the claim remaining on appeal. The veteran is hereby advised that failure to report for the scheduled examination, without good cause, may result in denial of the claim. See 38 C.F.R. § 3.655 (2007). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Id. If the veteran does not report for the scheduled examination, the RO must obtain and associate with the claims folder a copy of the notice of the date and time of the examination sent to him by the pertinent VA medical facility. The action identified herein is consistent with the duties imposed by the VCAA. However, identification of specific action requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the action requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim remaining on appeal. Accordingly, this matter is hereby REMANDED to the RO via the AMC for the following action: 1. The RO should arrange for the veteran to undergo a VA orthopedic examination of his right knee by a physician. The entire claims folder must be made available to the physician designated to examine the veteran, and the examination report should include discussion of his documented medical history and assertions. All indicated studies and tests, including X-rays, should be accomplished, and all clinical findings pertaining to the right knee should be reported in detail and correlated to a specific diagnosis. The examining physician should review the service and post-service medical records and render an opinion for the record as to whether it is at least as likely as not (i.e., there is at least a 50% probability) that any currently-diagnosed right knee disability had its onset in service. In arriving at this opinion, the examiner should review and address the 1967 and 1969 service medical records, and 1984, 2003, and 2007 post- service medical records. The doctor should set forth all examination findings, together with the complete rationale for the comments and opinions expressed, in a printed (typewritten) report. 2. If the veteran fails to report for the scheduled examination, the RO must obtain and associate with the claims folder a copy of the notice of the date and time of the examination sent to him by the pertinent VA medical facility. 3. To help avoid future Remand, the RO must ensure that all requested development action has been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. After completing the requested action, and any additional notification and/or development deemed warranted, the RO should readjudicate the claim remaining on appeal in light of all pertinent evidence and legal authority. If the veteran fails to report for the scheduled examination, the RO should apply the provisions of 38 C.F.R. § 3.655(b), as appropriate. 5. If the benefit sought on appeal remains denied, the RO must furnish the veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and affords him the appropriate time period for response before the claims folder is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The veteran needs take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate timeframe. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs