Citation Nr: 0813733 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 06-13 112 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for residuals of a right tibia fracture, claimed as a right thigh and leg condition. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Helena M. Walker, Associate Counsel INTRODUCTION The veteran served on active duty from June 1979 to June 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied the benefit sought on appeal. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The veteran's claimed right leg/thigh disability is not attributable to his active service. CONCLUSION OF LAW The criteria for service connection for a right leg/thigh disability have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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 veteran of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a veteran in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. In a letter dated in November 2004, VA notified the veteran of the information and evidence needed to substantiate and complete his claim for service connection, 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). The letter also generally advised the veteran to submit any additional information in support of his claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Additional notice of the five elements of a service- connection claim, as is now typically required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), was not provided. The Board specifically finds, however, that the veteran is not prejudiced as he was given specific notice with respect to the elements of a basic service-connection claim and cannot be prejudiced by not receiving notice of downstream issues that are not reached by a denial of the underlying benefit. As such, 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 United States Court of Appeals for Veterans Claims (Court) held in Pelegrini 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 (AOJ) decision on a claim for VA benefits. In this case, the November 2004 VCAA notice was given prior to the appealed AOJ decision, dated in March 2005. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the veteran in obtaining evidence, affording him physical examinations, obtaining medical opinions as to the etiology of his disability, and by affording him the opportunity to give testimony before an RO hearing officer and/or the Board, even though he declined to do so. The Board notes that the veteran was scheduled for a VA examination February 2006 and he did not appear. The evidence of record does not show that the veteran requested that the examination be rescheduled, nor did he provide a reason for his failure to appear at the VA examination. It appears that all known and available records relevant to the issue here on appeal have been obtained and are associated with the veteran's claims file. Thus, the Board finds that VA has done everything reasonably possible to notify and assist the veteran and that no further action is necessary to meet the requirements of the VCAA. The veteran contends that his claimed right leg/thigh disability is attributable to service. He specifically alleges that his right leg/thigh disability was caused by an in-service right knee injury, which occurred while playing football. Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Arthritis, such as arthritis of the leg or thigh, is deemed to be a chronic disease under 38 C.F.R. § 3.309(a) and, as such, service connection may be granted if the evidence shows that the disease manifest to a degree of ten percent or more within one year from the date of separation from service. 38 C.F.R. § 3.307. The veteran's enlistment examination, dated in February 1979, is devoid of any reference to a preexisting right leg disability. The veteran's service medical records (SMRs) reflect treatment for a right knee injury. In August 1980, the veteran reported twisting his right knee while at a beach party. He reported hearing his knee "pop." The veteran was noted to have a ligament strain or medial meniscal involvement. In a follow-up record, the veteran advised that he had difficulty moving, but no pain. Upon physical examination, the veteran's pain was located under the medial joint line and at the head of the fibula. The examining personnel questioned whether the veteran may have a problem with his ligaments or cartilage, but made no concrete diagnosis. A cast was placed on his right leg. At the end of August 1980, the veteran went to the orthopedic clinic and was noted to have a possible posterior cruciate tear. The veteran's June 1984 separation medical examination makes no notation of a residual disability due to the right knee injury, nor is there a right leg/thigh disability noted upon service discharge. In November 2004, the veteran underwent a VA examination for his claimed right leg/thigh disability. The veteran reported that this disability was due to an injury while playing football in service. The veteran advised that he experienced pain and stiffness and the symptoms constantly occur. Noted also, was the veteran's 1994 surgery on his right hip. The x-ray of the femur, tibia and fibula revealed old, healed fractures. The examiner diagnosed the veteran as having residuals of a fracture of the tibia, fibula and femur with residual osteoarthritis of the hip, knee and ankle. The examiner stated that the veteran's condition was reported by the veteran as being caused by his in-service injury. No opinion as to the likelihood that the veteran's right leg/thigh disability was related to service was given. In February 2006, the veteran was sent notice to appear for a VA examination regarding his right knee and right leg/thigh disability. He was provided with the time and location of the examination. Pursuant to an invoice dated that same month, the veteran failed to appear at his scheduled examination. There is no indication that he had tried to reschedule prior to the date of the examination, nor did the veteran provide a reason for failing to appear at the examination. There are no other treatment records associated with the veteran's claims file regarding the claimed disability. Given the evidence as outlined above, the Board finds that the veteran certainly injured his right knee during service, but there is no evidence of an injury to his right leg or thigh. Further, there was no residual right leg disability noted upon discharge examination or for many years following his discharge from service. The first post-service reference to the in-service injury was in November 2004 at his VA examination. Although the veteran related a history of an in-service right knee injury, the medical evidence does not include an opinion that the complaints made over twenty years after service regarding his right leg and thigh were related to the in-service right knee injury. The Court has determined that history which a veteran provides does not transform that history into medical evidence. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Thus, the notation of the veteran's in-service right knee injury in current medical records is not deemed to be evidence of a link between service and his claimed disability of the right leg and thigh. The evidence clearly shows that the veteran injured his right knee during service, but he did not have complaints of right knee problems at discharge from service, nor was he noted to have a right leg/thigh disability during service or upon discharge. There are no medical treatment records associated with the claims file reflecting treatment for a right leg/thigh condition-only a reference made in the November 2004 VA examination reflects a right leg/thigh condition. The Board finds the preponderance of the evidence against the veteran's claim for service connection, and absent a competent medical opinion linking the veteran's current right leg/thigh disability to service, service connection must be denied. The Board notes that "[t]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). See also Olson v. Principi, 3 Vet. App. 480, 483 (1992). VA scheduled an examination for the veteran in February 2006 for the purpose of determining his current disability. The veteran did not appear for the examination and he did not give any reason for not appearing. Accordingly, the record is limited to the evidence as outlined above. Because there is no evidence of a right leg/thigh disability for over twenty years following service and no competent medical evidence to link the current disability to service, service connection for a right leg/thigh disability is denied. The Board also finds that the veteran is not currently diagnosed as having arthritis of the right leg, nor was he diagnosed as such within a year of service discharge. Thus, service connection is also denied on a presumptive basis. ORDER Service connection for residuals of a right tibia fracture is denied. ____________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs