Citation Nr: 0813645 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 05-04 202 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a right knee disability as secondary to service-connected residuals of a left ankle sprain. 2. Entitlement to service connection for a left knee disability as secondary to service-connected residuals of a left ankle sprain. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The veteran had active service from December 1979 to June 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which determined, in pertinent part, that new and material evidence had not been received sufficient to reopen the veteran's previously denied claim of service connection for a right knee disability and also denied the veteran's claim of service connection for a left knee disability. The veteran disagreed with this decision in November 2004. He perfected a timely appeal in February 2005. In December 2006, the Board reopened the veteran's previously denied claim of service connection for a right knee disability and remanded both of the veteran's claims to the RO via the Appeals Management Center (AMC) in Washington, D.C., for additional development. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. Without good cause, the veteran failed to report for VA examination scheduled for the purpose of determining the etiology of his claimed bilateral knee disabilities. 3. The veteran's currently diagnosed left knee arthritis was not caused or aggravated by his service-connected residuals of a left ankle sprain. CONCLUSIONS OF LAW 1. The veteran's failure to report for VA examination deemed necessary to determine the etiology of his right knee disability requires that this claim must be denied as a matter of law. 38 C.F.R. § 3.655 (2007). 2. The veteran's left knee disability was not caused or aggravated by his service-connected residuals of a left ankle sprain. 38 U.S.C.A. §§ 1112, 1113, 1116, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310, 3.655 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. In letters issued in May 2004 and in August 2005, VA notified the veteran of the information and evidence needed to substantiate and complete his claims, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). These letters informed the veteran to submit medical evidence, statements from persons who knew the veteran and had knowledge of his knee disabilities during service, and noted other types of evidence the veteran could submit in support of his claims. The veteran was informed of when and where to send the evidence. The May 2004 letter also informed the veteran to submit evidence showing that his claimed knee disabilities had been caused by his service- connected residuals of a left ankle sprain. After consideration of the contents of these letters, the Board finds that VA has substantially satisfied the requirement that the veteran be advised to submit any additional information in support of his claims. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). The May 2004 and August 2005 letters also defined new and material evidence, advised the veteran of the reasons for the prior denial of the claim of service connection for a right knee disability, and noted the evidence needed to substantiate the underlying claim of service connection. That correspondence satisfied the notice requirements as defined in Kent v. Nicholson, 20 Vet. App. 1 (2006). As noted in the Introduction, in December 2006, the Board reopened and remanded the veteran's claim of service connection for a right knee disability. Additional notice of the five elements of a service- connection claim was provided in January 2007, as is now required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Thus, the Board finds that VA met its duty to notify the veteran of his rights and responsibilities under the VCAA. With respect to the timing of the notice, the Board points out that the Veterans Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the May 2004 letter was issued prior to the September 2004 rating decision which denied the benefits sought on appeal; thus, this notice was timely. As both of the veteran's claims are being denied in this decision, any question as to the appropriate disability rating or effective date is moot and there can be no failure to notify the veteran. See Dingess, 19 Vet. App. at 473. There has been no prejudice to the appellant, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield, 444 F.3d at 1328. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the veteran in obtaining evidence and affording him the opportunity to give testimony before the RO and the Board, although he declined to do so. As to any duty to provide an examination and/or seek a medical opinion, the Board notes that in the case of a claim for disability compensation, the assistance provided to the claimant shall include providing a medical examination or obtaining a medical opinion when such examination or opinion is necessary to make a decision on the claim. An examination or opinion shall be treated as being necessary to make a decision on the claim if the evidence of record, taking into consideration all information and lay or medical evidence (including statements of the claimant) contains competent evidence that the claimant has a current disability, or persistent or recurring symptoms of disability; and indicates that the disability or symptoms may be associated with the claimant's act of service; but does not contain sufficient medical evidence for VA to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). See also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The veteran has failed to report for VA examination in March 2007 and has not shown good cause for his failure to report for this examination. Letters from the RO dated in March 2007, as well as the December 2007 supplemental statement of the case (SSOC), all informed him that failure to report for a scheduled VA examination may have adverse consequences, including the possible denial of his claims. The March 2007 letters from the RO also afforded the veteran the opportunity to reschedule a VA examination, but he failed to respond. The Veterans Court has held that "[t]he duty to assist is not always a one-way street." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Where entitlement to a benefit cannot be established or confirmed without a current VA examination and the veteran fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit that was previously disallowed, or a claim for increase, the claim shall be denied. 38 C.F.R. §§ 3.655(a)-(b) (2007). In view of the foregoing, the Board concludes that there is no duty to provide another examination or medical opinion. And, as VA has fulfilled the duty to notify and assist to the extent possible, the Board can consider the merits of this appeal without prejudice to the veteran. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The veteran contends that he incurred bilateral knee disabilities as a result of his service-connected residuals of a left ankle sprain. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing the second and/or third element of a service connection claim. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. See Savage, 10 Vet. App. at 495-498. Secondary service connection shall be awarded when a disability "is proximately due to or the result of a service-connected disease or injury." 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). Libertine v. Brown, 9 Vet. App. 521, 522 (1996); see also Reiber v. Brown, 7 Vet. App. 513, 515-16 (1995); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). For valid secondary service connection claims, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the claimed disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). An amendment to 38 C.F.R. § 3.310, effective October 10, 2006, implements the holding in Allen v. Brown, 7 Vet. App. 439 (1995), for secondary service connection on the basis of the aggravation of a non-service-connected disorder by service-connected disability. See 71 Fed. Reg. 52744 (2006). The amendment essentially codifies Allen by adding language that requires that a baseline level of severity of the non- service-connected disease or injury must be established by medical evidence created before the onset of aggravation. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. The veteran was scheduled for VA examination in March 2007. He was advised of the adverse consequences of failing to appear for a VA examination without good cause by correspondence from the RO dated that same month. He also was advised of the adverse consequences of failing to appear for a VA examination without good cause by the December 2007 SSOC. To date, the veteran has not responded to any of the correspondence sent to him concerning his failure to report for VA examination scheduled in connection with his reopened claim of service connection for a right knee disability. In the December 2007 SSOC, the AMC told the veteran that they had been notified of his failure to report and provided him information regarding the consequences of his failure to attend a scheduled VA examination. The December 2007 SSOC also was sent to the veteran's current representative. When a claimant, without good cause, fails to report for an examination scheduled in conjunction with a claim for increase or a reopened claim for a benefit which was previously disallowed, the claim shall be denied. 38 C.F.R. § 3.655(b). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant or death of an immediate family member. In this case, neither the veteran nor his service representative has explained why he failed to report without good cause for VA examination. There is insufficient medical evidence of record to adjudicate the veteran's reopened claim of service connection for a right knee disability. Current examination findings are necessary to assess his right knee disability and whether it was caused or aggravated by his service-connected residuals of a left ankle sprain. As noted above, VA's duty to assist the veteran is not a one-way street. The veteran also has an obligation to assist in the adjudication of his claims. The veteran must be prepared to meet his obligations by cooperating with VA efforts to provide an adequate medical examination and submitting to the Secretary all medical evidence supporting his claim. Olson v. Principi, 3 Vet. App. 480 (1992). Individuals for whom examinations have been authorized and scheduled are required to report for same. 38 C.F.R. §§ 3.326, 3.327 (2007). Accordingly, the Board finds that the veteran failed to report, without good cause, for VA examination scheduled in connection with his reopened claim of service connection for a right knee disability. Consistent with 38 C.F.R. § 3.655(b), this claim must be denied. Because the law is dispositive in this case, this claim must be denied on the basis of lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426 (1994); see also VAOPGCPREC 5-04. Because the veteran failed to report for VA examination in March 2007, his original secondary service connection claim for a left knee disability will be rated on the evidence of record. See 38 C.F.R. § 3.655(b) (2007). A review of the veteran's service medical records indicates that clinical evaluation was completely normal at his enlistment physical examination in November 1979. The veteran was not treated, however, for any left knee disability during active service including as a result of his left ankle sprain. At the veteran's separation physical examination in June 1988, physical examination was within normal limits. The post-service medical evidence shows that, on VA examination in February 2001, the veteran complained of knee problems secondary to gait and weight bearing changes related to his left ankle. The VA examiner stated that the veteran's claims file was not submitted for review. Physical examination of the left knee showed no arthritis, effusions, or patellar or anterior or posterior instability, and mild medial lateral instability. X-rays of the left knee showed no abnormalities. The assessment included left knee arthralgia that was less likely than not service-connected. On VA outpatient treatment in March 2003, the veteran complained of knee pain. Physical examination showed no joint swelling. The assessment included arthralgias. Following VA outpatient treatment in March 2004, the assessment included chondromalacia patella. On VA examination in August 2004, the veteran complained of knee pain. The VA examiner reviewed the veteran's medical records. Physical examination showed crepitus and tenderness to palpation in the left knee. X-rays showed moderate osteoarthritis of the left knee. The VA examiner opined that the veteran's left knee arthritis was less likely to be service-connected due to an ankle injury. The assessment included knee arthritis. The Board finds that the preponderance of the evidence is against the veteran's claim of service connection for a left knee disability as secondary to service-connected residuals of a left ankle sprain. As noted elsewhere, the veteran failed to report for VA examination scheduled for the purpose of determining the etiology of his left knee disability. A review of the evidence of record shows no complaints of or treatment for a left knee disability during active service, including as a result of a left ankle sprain. The post- service medical evidence shows continuing outpatient treatment for left knee complaints (variously diagnosed as arthritis and chondromalacia patella). VA examiners who saw the veteran in February 2001 and in August 2004 concluded that the veteran's currently diagnosed left knee disability was less likely than not related to active service. There is evidence of both a current left knee disability and service- connected residuals of a left ankle sprain. Without medical evidence establishing a nexus between the service-connected disability and the claimed disability, however, the Board finds that the veteran has not presented a valid secondary service connection claim. See Wallin, 11 Vet. App. at 512. Additional evidence in support of the veteran's secondary service connection claim for a left knee disability is his own lay assertions. As a lay person, the veteran is not competent to opine on medical matters such as the etiology of medical disorders. The record does not show, nor does the veteran contend, that he has specialized education, training, or experience that would qualify him to provide an opinion on this matter. Accordingly, the veteran's lay statements are entitled to no probative value. 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). As the preponderance of the evidence is against the veteran's claims, the benefit-of- the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990). ORDER Entitlement to service connection for a right knee disability as secondary to service-connected residuals of a left ankle sprain is denied. Entitlement to service connection for a left knee disability as secondary to service-connected residuals of a left ankle sprain is denied. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs