Citation Nr: 0940486	
Decision Date: 10/26/09    Archive Date: 11/04/09

DOCKET NO.  06-17 468	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, 
West Virginia


THE ISSUES

1. Entitlement to service connection for a right knee 
disorder.

2. Entitlement to service connection for a neurological 
disorder.

3. Entitlement to service connection for a low back disorder.

4. Entitlement to service connection for a gastrointestinal 
disorder.

5. Entitlement to service connection for a respiratory 
disorder, to include as secondary to asbestos exposure.


REPRESENTATION

Veteran represented by:	West Virginia Division of 
Veterans Affairs



WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

K. M. Schaefer, Associate Counsel


INTRODUCTION

The Veteran served on active duty from November 1974 to 
October 1976 and active duty for training from July 1972 to 
January 1973.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a rating decision issued in July 2005 
by the Department of Veterans Affairs (VA) Regional Office 
(RO) in Huntington, West Virginia.

In August 2009, the Veteran testified at a personal hearing 
before the undersigned, sitting at the RO.  A transcript of 
the hearing is associated with the claims file.

The Board observes that the Veteran has filed a claim of 
entitlement to service connection for posttraumatic stress 
disorder (PTSD).  However, this claim has not yet been 
adjudicated by the RO.  Therefore, the claim is REFERRED to 
the RO for appropriate action.

The issues of entitlement to service connection for a low 
back disorder, gastrointestinal disorder, and a respiratory 
disorder are addressed in the REMAND portion of the decision 
below and are REMANDED to the RO via the Appeals Management 
Center (AMC), in Washington, DC.



FINDINGS OF FACT

1. The medical evidence of record does not demonstrate a 
current diagnosis of a right knee disorder.

2. The medical evidence of record does not demonstrate a 
current diagnosis of a neurological disorder.


CONCLUSIONS OF LAW

1. A right knee disorder was not incurred in the Veteran's 
active duty military service.  38 U.S.C.A. § 1110 (West 
2002); 38 C.F.R. § 3.303 (2009).

2. A neurological disorder was not incurred in the Veteran's 
active duty military service.  38 U.S.C.A. § 1110 (West 
2002); 38 C.F.R. § 3.303 (2009).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) imposes 
certain duties upon VA to notify the claimant of the shared 
obligations of the claimant and VA in developing his or her 
claim and to assist the claimant by making reasonable efforts 
to obtain relevant evidence in support of the claim.  38 
U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 
3.102, 3.156(a), 3.159, 3.326(a) (2009).  

VA must inform a claimant about the information and evidence 
not of record that is necessary to substantiate the claims, 
the information and evidence that VA will seek to provide, 
and the information and evidence that the claimant is 
expected to provide.  38 C.F.R. § 3.159(b)(1) (revised 73 
Fed. Reg. 23353-23356, April 30, 2008); Quartuccio v. 
Principi, 16 Vet. App. 183 (2002).  Additionally, in the 
consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. 
App. 473 (2006), the Court of Appeals for Veterans Claims 
(Court) held that VCAA notice requirements also apply to the 
evidence considered in determinations of the degree of 
disability and effective date of the disability once service 
connection has been established.  

VCAA notice must be provided before the initial unfavorable 
agency of original jurisdiction (AOJ) decision on the claims 
for VA benefits.  Pelegrini v. Principi, 18 Vet. App. 112 
(2004).  In this case, the Veteran was provided with a VCAA 
notification letter in April 2005, prior to the initial 
unfavorable AOJ decision issued in July 2005.  An additional 
letter was sent in January 2008.

The Board observes that the pre-adjudicatory VCAA notice 
issued in April 2005 informed the Veteran of the type of 
evidence necessary to establish service connection, how VA 
would assist him in developing his claims, and his and VA's 
obligations in providing such evidence for consideration.  
With regard to the notice requirements under Dingess/Hartman, 
the January 2008 VCAA letter provided notice as to disability 
ratings and effective dates.  The Board acknowledges the 
defective timing of this letter, but finds that no prejudice 
to the Veteran has resulted.  See Bernard v. Brown, 4 Vet. 
App. 384, 394 (1993) (where the Board addresses a question 
that has not been addressed by the agency of original 
jurisdiction, the Board must consider whether the Veteran has 
been prejudiced thereby).  As the Board herein concludes that 
the preponderance of the evidence is against the Veteran's 
service connection claims, any questions as to the assignment 
of disability ratings and effective dates are rendered moot.  
Therefore, the Board finds that the Veteran was provided with 
all necessary notice under VCAA prior to the initial 
adjudication of his claims. 

Accordingly, the Board determines that the content 
requirements of VCAA notice have been met and the purpose of 
such notice, to promote proper development of the claims, has 
been satisfied.  See Mayfield v. Nicholson, 444 F.3d 1328 
(Fed. Cir. 2006).  Based on the above, the Board finds that 
further VCAA notice is not necessary prior to the Board 
issuing a decision.

VA has also fulfilled its duty to assist the Veteran in 
making reasonable efforts to identify and obtain relevant 
records in support of the Veteran's claims and providing him 
with a VA examination.  The Veteran's service treatment 
records, VA medical records, private medical records, and the 
report of a February 2008 VA examination were reviewed by 
both the AOJ and the Board in connection with adjudication of 
his claims. 

With regard to the VA examination, the Board notes that once 
VA undertakes to provide a VA examination or obtain a VA 
opinion, it must ensure that the examination or opinion is 
adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  
The VA examination related solely to the Veteran's right knee 
claim, and the noted relevant service treatment records and 
post-service treatment records, documented the Veteran 
subjective complaints and medical history, and examined the 
Veteran.  He then provided an opinion that was supported by a 
rationale based in all the available evidence.  There is 
nothing to suggest that the examiner's opinion is not 
sufficiently based in the facts of the case or that he 
reached an arbitrary conclusion.  Accordingly, the Board 
finds that VA's duty to assist with respect to obtaining a VA 
examination or opinion with respect to the issue on appeal 
has been met.  38 C.F.R. § 3.159 (c)(4).  

With regard to the Veteran's neurological disorder, the Board 
finds that a current VA examination to determine whether the 
Veteran has a neurological disorder that is a result of his 
military service is not necessary to decide his claim.   The 
treatment evidence associated with the claims file shows that 
the Veteran has complained of having a brain tumor, but 
objective testing has revealed no current neurological 
disorder.  Without evidence of a current diagnosis of a 
neurological disorder, the Board finds that a VA examination 
is not necessary.  Based on these facts, the Board concludes 
that the medical evidence of record is sufficient to 
adjudicate the Veteran's service connection claim.

In light of the above, the Board concludes that further 
development and additional efforts to assist or notify the 
Veteran in accordance with VCAA would serve no useful 
purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 
(1991) (strict adherence to requirements of the law does not 
dictate an unquestioning, blind adherence in the face of 
overwhelming evidence in support of the result in a 
particular case; such adherence would result in unnecessarily 
imposing additional burdens on VA with no benefit flowing to 
the Veteran).  Therefore, the Board determines that the 
Veteran will not be prejudiced by the Board proceeding to the 
merits of the claims.

II. Analysis

Service connection may be granted for disability arising from 
disease or injury incurred in or aggravated by service.  38 
U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a).  
Service connection may also 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). 

A finding of direct service connection requires medical 
evidence of a current disability; medical or, in certain 
circumstances, lay evidence of in-service incurrence or 
aggravation of a disease or injury; and medical evidence of a 
nexus between the claimed in-service disease or injury and 
the present disease or injury.   38 U.S.C.A. § 1112; 38 
C.F.R. § 3.304.  See also Caluza v. Brown, 7 Vet. App. 498, 
506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table).

Alternatively, service connection may be established under 38 
C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a 
chronic disease in service or during an applicable 
presumption period under 38 C.F.R. § 3.307 and (ii) present 
manifestations of the same chronic disease, or (b) when a 
chronic disease is not present during service, evidence of 
continuity of symptomatology.

The Veteran contends that he suffers from a right knee 
disorder and a neurological disorder as a result of injuries 
in service.  Specifically, he claims that his right knee was 
injured during training when it was struck by a rifle and 
that he sustained a neurological disorder from a diving 
accident and/or exposure to static electricity while 
performing his duties as a sling loader.  Thus, he argues 
that service connection is warranted for these disorders.

Initially, the Board notes that service treatment records 
show treatment for the Veteran's left knee on more than one 
occasion and possible treatment for the right knee once, in 
September 1972; the latter record is ambiguous as to which 
knee was involved.  A record dated in July 1976 relates that 
two years prior the Veteran experienced a diving accident and 
that he still had a knot on the left side of his skull as a 
result.  The Board notes that there is no documentation of 
any injury sustained from exposure to static electricity.  
Nevertheless, the Board finds that there is some evidence of 
and in-service event or injury related to possible 
development of a right knee and neurological disorder.  

However, post-service treatment evidence does not reveal a 
current diagnosis of either a right knee disorder or a 
neurological disorder.  In this regard, the Board notes that 
an August 2005 VA treatment record states that the Veteran 
has right knee tenderness.  Additionally, VA treatment 
records list knee arthralgia as a problem, but do not 
indentify which knee is involved; nevertheless, the February 
2008 VA examiner diagnosed right knee arthralgia.  Even so, 
"arthralgia" is a medical term for pain.  Dorland's 
Illustrated Medical Dictionary, p. 149 (30th ed. 2003).  

The Board notes that the Veteran is also experiencing pain in 
his right leg secondary to his low back disorder; however, 
such symptoms are not associated with the right knee; thus, 
any diagnosis that may be assigned to that symptoms is not 
material to the instant claim.  The Board also acknowledges 
that the February 2008 VA examiner noted that X-rays showed 
bipartite patella; however, the examiner also stated that 
such was a congenital anomaly.  Congenital disabilities are 
not diseases or injuries under VA regulations, and thus, may 
not be service-connected. See 38 C.F.R. §§ 3.303(c), 4.9, 
4.127.  

Therefore, the only diagnosis assigned to the Veteran's right 
knee complaints is pain.  Pain alone is not a disability and 
without a diagnosed or identifiable underlying malady or 
condition, cannot be service-connected.  Sanchez-Benitez v. 
West, 13 Vet. App. 282, 285 (1999).  

With respect to the claimed neurological disorder, the Board 
observes that VA treatment records report that the Veteran 
complains of a history of a brain tumor, but also state that 
the physician could not find any such diagnosis in the 
Veteran's record.  Further, the Veteran has had multiple head 
CTs and none have shown any brain injury or other 
malformation that could be indicative of a neurological 
disorder.  The Board notes that the Veteran has been 
diagnosed with a psychological disorder; however, the record 
does not show that these symptoms are manifestations of a 
neurological disorder.

Thus, the Veteran does not meet the criterion of having a 
current right knee or neurological disability.  Where there 
is no disability, there can be no entitlement to 
compensation.  See Degmetich v. Brown, 104 F.3d 1328 (1997); 
Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  

The Board has considered the Veteran's own statements as to 
the existence and etiology of his claimed right knee and 
neurological disorders.  Laypersons are competent to speak to 
symptomology when the symptoms are readily observable.  Layno 
v. Brown, 6 Vet. App. 465, 469 (1994).  However, only those 
with specialized medical knowledge, training, or experience 
are competent to provide evidence on the question of 
diagnosis and causation.  See Jones v. Brown, 7 Vet. App. 
134, 137 (1994); Espiritu v. Derwinski, 2 Vet. App. 492, 494 
(1992).  Absent competent evidence of a current diagnosis, 
service connection for a right knee and neurological disorder 
is not warranted.

The Board has also considered the applicability of the 
benefit of the doubt doctrine.  However, as there is no 
competent and probative evidence in favor of the Veteran's 
claims, the preponderance of the evidence is against the 
Veteran's claims for service connection for a right knee and 
neurological disorder.  Therefore, the benefit of the doubt 
doctrine is not applicable in the instant appeal, and his 
service connection claims must be denied.  38 U.S.C.A. § 5107 
(West 2002); 38 C.F.R. §§ 4.3, 4.7. 


ORDER

Service connection for a right knee disorder is denied.

Service connection for a neurological disorder is denied.


REMAND

The Veteran has filed claims for service connection for a 
back disorder, gastrointestinal disorder, and respiratory 
disorder as related to his military service.  The Board finds 
that a remand is necessary for additional development of the 
record. 

With respect to the Veteran's back claim, the Board notes 
that he has submitted current information as to the duties of 
a sling loader.  The Board does not here determine whether or 
not the Veteran could have been shocked by static electricity 
to the point that he fell back 15 feet; however, the Board 
finds that there is sufficient evidence that the Veteran's 
in-service duties may have caused injury to his back, so as 
to warrant a VA examination to ascertain the existence and 
etiology of any current back disorder.

With regard to the Veteran's claim for service connection for 
a gastrointestinal disorder, the Board observes that the 
Veteran first claimed that the disorder was related to 
inhaling glass while performing his duties as a sling loader.  
However, he has also contended that the disorder is secondary 
to ingesting contaminated water at Camp LeJeune.  The Board 
observes that the claims file contains documentation of the 
Veteran's possible exposure to contaminated water at Camp 
LeJeune.  Thus, the Board finds that a remand is necessary so 
that the Veteran may be afforded a VA examination with regard 
to this claim as well. 

Finally, as for the Veteran's claim for service connection 
for a respiratory disorder, the Board finds that the 
Veteran's service personnel records should be added to the 
record before the claim is further adjudicated.  The Veteran 
contends that he was exposed to asbestos while on board the 
U.S.S. Nashville.  In particular, the Board notes that that 
he claims to have served on board that ship the when it was 
involved in an accident with another ship and required 
repairs.  Thus, the Board finds that the Veteran's service 
personnel records should be obtained so that the dates of 
service on the U.S.S. Nashville may be verified.  
Additionally, at his hearing, the Veteran testified that the 
accident occurred in May or June 1973.  Therefore, deck logs 
of the U.S.S. Nashville for May through July 1973 should be 
reviewed for reference to the claimed accident and subsequent 
repairs.  

Accordingly, the case is REMANDED for the following action:

1.	Request the Veteran's complete service 
personnel file from all appropriate 
sources.  All requests and responses, 
positive and negative, should be 
associated with the claims file. 

2.	Request copies of the deck logs for the 
U.S.S. Nashville for May 1973 to July 
1973 or a review of such records for 
reference to an accident with another 
ship and any required subsequent 
repairs.  All requests and responses, 
positive and negative, should be 
associated with the claims file. 

3.	Schedule the Veteran for a VA 
examination in order to ascertain the 
existence and etiology of his low back 
disorder.  The claims file should be 
made available for review, and the 
examination report should reflect that 
such review occurred.   Upon a review 
of the record and examination of the 
Veteran, the examiner should respond to 
the following:

Is it at least as likely as not 
(50 percent probability or 
greater) that any diagnosed back 
disorder is etiologically related 
to an event or injury during the 
Veteran's military service?
		
	A rationale for any opinion advanced 
should be provided.  The examiner 
should also state what sources were 
consulted in forming the opinion

4.	Schedule the Veteran for a VA 
examination in order to ascertain the 
existence and etiology of his 
gastrointestinal disorder.  The claims 
file should be made available for 
review, and the examination report 
should reflect that such review 
occurred.   Upon a review of the record 
and examination of the Veteran, the 
examiner should respond to the 
following:

Is it at least as likely as not 
(50 percent probability or 
greater) that any diagnosed 
gastrointestinal disorder is 
etiologically related to an event 
or injury during the Veteran's 
military service?
		
	A rationale for any opinion advanced 
should be provided.  The examiner 
should also state what sources were 
consulted in forming the opinion.  

5.	If and only if, the record reasonably 
supports the conclusion that the 
Veteran was exposed to asbestos, 
schedule the Veteran for a VA 
examination in order to ascertain the 
existence and etiology of any current 
respiratory disorder.  The claims file 
should be made available for review, 
and the examination report should 
reflect that such review occurred.   
Upon a review of the record and 
examination of the Veteran, the 
examiner should assign all appropriate 
diagnoses to any current respiratory 
disorder found and respond to the 
following:

Is it at least as likely as not 
(50 percent probability or 
greater) that any diagnosed 
respiratory disorder is 
etiologically related to exposure 
to asbestos during military 
service or is otherwise related to 
such service?
		
	A rationale for any opinion advanced 
should be provided.  The examiner 
should also state what sources were 
consulted in forming the opinion.  

6.	After completing the above actions and 
any other development as may be 
indicated by any response received as a 
consequence of the actions taken in the 
preceding paragraphs, the Veteran's 
service connection claims should be 
readjudicated, to include all evidence 
received since the October 2008 
supplemental statement of the case.  If 
any claim remains denied, the Veteran 
and his representative should be issued 
another supplemental statement of the 
case.  An appropriate period of time 
should be allowed for response.

The Veteran has the right to submit additional evidence and 
argument on the matters the Board has remanded.  
Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law 
requires that all claims that are remanded by the Board of 
Veterans' Appeals or by the United States Court of Appeals 
for Veterans Claims for additional development or other 
appropriate action must be handled in an expeditious manner.  
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).

______________________________________________
MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs