Citation Nr: 1002298 Decision Date: 01/14/10 Archive Date: 01/22/10 DOCKET NO. 06-35 922 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased rating for status-post right shoulder acromioplasty with scarring, currently rated 10 percent disabling. 2. Entitlement to an increased rating for status-post left shoulder subacromion decompression, currently rated 10 percent disabling. 3. Entitlement to a compensable rating for status-post debridement and osteophyte excision of the right elbow. 4. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for low back disability. 5. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for right knee disability. 6. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for residuals of left leg contusion. 7. Entitlement to service connection for sleep apnea. 8. Entitlement to service connection for left knee disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from November 1982 to November 2002. This matter comes to the Board of Veterans' Appeals (Board) from a January 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement was filed in April 2006, a statement of the case was issued in November 2006, and a substantive appeal was received in November 2006. In his notice of disagreement, the Veteran requested a Board hearing; however, withdrew such request in November 2006. FINDINGS OF FACT 1. The Veteran failed to report, without good cause, for VA examinations scheduled in July 2008, pertaining to his claim for increased ratings for service-connected right shoulder disability, left shoulder disability, and right elbow disability. 2. In a January 2003 rating decision, the RO denied entitlement to service connection for low back disability, residuals of left leg contusion, and right knee disability; the Veteran did not file a notice of disagreement. 3. In June 2005, the Veteran filed a request to reopen his claims of service connection for low back disability, residuals of left leg contusion, and right knee disability. 4. Additional evidence received since the RO's January 2003 decision which denied entitlement to service connection for low back disability and residuals of left leg contusion is new to the record, but does not relate to unestablished facts necessary to substantiate the merits of the claims, and does not raise a reasonable possibility of substantiating the claims. 5. Additional evidence received since the RO's January 2003 decision which denied entitlement to service connection for right knee disability is new to the record, relates to unestablished fact necessary to substantiate the merits of the claim, and raises a reasonable possibility of substantiating the claim. 6. Right knee disability was not manifested during service and is not otherwise related to the Veteran's active service. 7. Left knee disability is not currently shown. 8. Sleep apnea was not manifested during service and is not otherwise related to the Veteran's active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 10 percent for status-post right shoulder acromioplasty with scarring are not met as a matter of law. 38 C.F.R. § 3.655(b) (2009). 2. The criteria for entitlement to a disability rating in excess of 10 percent for status-post left shoulder subacromion decompression are not met as a matter of law. 38 C.F.R. § 3.655(b) (2009). 3. The criteria for entitlement to a compensable disability rating for status-post debridement and osteophyte excision of the right elbow are not met as a matter of law. 38 C.F.R. § 3.655(b) (2009). 4. The January 2003 rating decision is final. 38 U.S.C.A. § 7105(c) (West 2002). 5. New and material evidence has not been received since the RO's January 2003 denial of service connection for low back disability and residuals of left leg contusion, and the claims of service connection for low back disability and residuals of left leg contusion are not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2009). 6. New and material evidence has been received since the RO's January 2003 rating decision which denied service connection for right knee disability, and the claim of service connection for right knee disability is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2009). 7. Right knee disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2009). 8. Left knee disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2009). 9. Sleep apnea was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Increased rating claims VA regulations provide that when a claimant fails to report for a scheduled medical examination without good cause, the reopened claim for which there is a previous disallowance shall be denied without review of the evidence of record. See 38 C.F.R. § 3.655. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. Id. The United States Court of Appeals for Veterans Claims (Court) held that the burden was upon VA to demonstrate that notice was sent to the claimant's last address of record and that the claimant lacked adequate reason or good cause for failing to report for a scheduled examination. Hyson v. Brown, 5 Vet. App. 262, 265 (1993). Although, in dicta, the Court stated that in the normal course of events it was the burden of the veteran to keep the VA apprised of his whereabouts, and that if he did not do so there was no burden on the VA to turn up heaven and earth to find him before finding abandonment of a previously adjudicated benefit. Id. The Court has also held that the "duty to assist is not always a one-way street." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The language of 38 C.F.R. § 3.655 leaves no authority for the RO or the Board to review the issues on appeal on the basis of the evidence already of record where the claimant does not show "good cause" for failure to report for the scheduled examination. Rather, the regulation compels the RO and the Board to deny the claim strictly on the basis of the failure to report for a scheduled examination without good cause. A January 2003 rating decision granted service connection for right shoulder disability, left shoulder disability, and right elbow disability, effective December 1, 2002. In July 2003, the Veteran filed an increased rating claim, which was adjudicated in a March 2004 rating decision. In June 2005, the Veteran submitted an inquiry as to the status of his claim which was submitted on March 15, 2004. The evidence of record does not contain a formal or informal claim for benefits received by VA on such date, thus the RO viewed such June 2005 submission as an informal claim for increased ratings. Thereafter, a 'Contact Brief' with the Disabled American Veterans dated by the Veteran on March 10, 2004 (but not received by VA until August 2005), reflects an intent to claim increased ratings pertaining to the shoulders and right elbow. In a separate June 2005 submission, the Veteran requested that his claims folder be transferred to the St. Petersburg RO, and he provided a current Florida home address. In September 2005, correspondence from the RO was issued to the Veteran which acknowledged the increased rating claims, and stated that a VA examination would be scheduled to assess the severity of his service-connected disabilities, and he was notified of the consequences of failing to report for a VA examination. The Veteran was scheduled to attend a VA examination (joints, respiratory) on January 5, 2006, to assess the severity of his service-connected disabilities; however, he failed to appear. A Report of Contact from the VA Medical Center (VAMC) reflects that the Veteran's spouse called on January 12, 2006, stating that the Veteran was a civilian working in Iraq and would be on leave for 2 weeks beginning March 16, 2006. In a January 24, 2006 rating decision, the RO denied entitlement to increased ratings. In April 2006, the Veteran filed a notice of disagreement, stating that he was unable to attend the January 2006 VA examination due to his employment in Iraq, stating that his contract in Iraq was to end in December 2006. He requested that the VA examination be rescheduled and that he be scheduled to attend a Board hearing once he returned stateside. On November 7, 2006, a statement of the case was issued. On November 8, 2006, a VA Report of Contact with the Veteran reflects that he desired to withdraw his hearing request, and requested that the VA examination be rescheduled. On the same date, the Veteran's representative filed a substantive appeal on the Veteran's behalf. In May 2008, RO correspondence was issued to the Veteran at his last address of record, and such correspondence was not returned as undeliverable. A July 11, 2008 VA Report of Contact reflects that several phone numbers were used in attempt to contact the Veteran without success. The RO scheduled the Veteran for a VA examination on July 19, 2008, and the Veteran failed to appear. There is no copy of any actual notice sent to the Veteran regarding the scheduling of the VA examination. Nonetheless, there is no indication from the record that such a notice was not sent to the Veteran. In the absence of clear evidence to the contrary, the law presumes the regularity of the administrative process. Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994) (citing Ashley v. Derwinski, 2 Vet. App. 62, 64-65 (1992)). On July 19, 2008, the RO issued correspondence and a supplemental statement of the case to the Veteran at his last address of record. Such correspondence stated that attempts to contact the Veteran via telephone and at his last known address were unsuccessful, and he was requested to contact VA. The Veteran was specifically notified of the provisions of § 3.655, and the consequences of failing to attend the scheduled VA examinations. In August 2008, the Veteran's representative submitted an informal hearing presentation (in lieu of a VA Form 646) and stated that "the Veteran is unable to avail himself for a current VA examination," however, did not provide further explanation. In August 2008, the Veteran was notified at his last current address that his appeal had been certified to the Board. In December 2009, the Veteran's representative submitted an Appellant's Brief in support of the appeal. As detailed, VA has made multiple attempts to contact the Veteran at his last known address of record (see 38 C.F.R. § 3.1(q)), and has attempted to contact him via telephone. The correspondence issued to the Veteran has not been returned as undeliverable. The last written communication from the Veteran was the notice of disagreement received in April 2006, and the last verbal communication from the Veteran was the telephone contact in November 2006 in which he withdrew his hearing request and requested that his VA examination be rescheduled. The Veteran was scheduled to attend a VA examination in July 2008, in reliance on the Veteran's statements that his contract ended in Iraq in December 2006. To date, neither the Veteran nor his representative has provided evidence of good cause as to the Veteran's failure to report. The Board acknowledges the RO's good faith efforts to schedule the Veteran for examinations, and the efforts taken to accommodate the Veteran's overseas employment. The Veteran has not provided a good cause for his failure to report to the scheduled July 2008 VA examinations, and, again, has not had contact with VA since November 2006. Therefore, the Board finds that additional efforts to schedule examinations would be futile. Given the presumption of regularity of the mailing of VA examination scheduling notice, the lack of return of any correspondence as undeliverable, the inability to contact the Veteran via telephone, and the lack of explanation regarding his failure to report to the scheduled July 2008 VA examinations, the Board finds that he did not show good cause. See 38 C.F.R. § 3.655. Therefore, the increased rating claims must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Finally, the Board finds that notwithstanding the recent amendments to the law enacted by the Veterans Claims Assistance Act of 2000 (VCAA) and the new duty to assist regulations, no undue prejudice to the Veteran is evident by a disposition by the Board herein, as the amended provisions of the Act specifically provide that VA is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance will aid in substantiating the increased rating claims. See 38 U.S.C.A. § 5103A(2); see also 38 C.F.R. §§ 3.159, 3.326. For the reasons set forth above, the Board has found that the Veteran's increased rating claims lack legal merit under the law and therefore, there is no reasonable possibility that further assistance or development of the claim at the RO-level will result in a grant of any benefit sought. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (Strict adherence to requirements in 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); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). Thus, the Board finds that further development is not warranted and the Veteran is not prejudiced by appellate review. See Bernard v. Brown, 4 Vet. App. 384 (1993). Because the Veteran's failure to report for the VA examinations scheduled in July 2008 is without good cause, the Veteran's claims for increased ratings for right shoulder disability, left shoulder disability, and right elbow disability are denied. 38 C.F.R. § 3.655. II. VCAA Under the VCAA, codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 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 Court's decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), held, in part, 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. This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically 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, VA satisfied its duties to the Veteran in a VCAA letter issued in September 2005 pertaining to the residuals of left leg contusion, right knee disability, and left knee disability issues, and in November 2005 pertaining to the sleep apnea and low back disability issues. The letters predated the January 2006 rating decision. See id. The VCAA letters notified the Veteran of what information and evidence is needed to substantiate his claims to reopen and the underlying claims of service connection, as well as what information and evidence must be submitted by the claimant, and what information and evidence will be obtained by VA. Id.; but see VA O.G.C. Prec. Op. No. 1-2004 (Feb. 24, 2004); see also Kent v. Nicholson, 20 Vet. App. 1 (2006). In May 2006, the Veteran received notice of the type of evidence necessary to establish a disability rating and effective date. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Despite initial inadequate notice provided to the Veteran, the Board finds no prejudice to him in proceeding with the issuance of a final decision. 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 appellant has been prejudiced thereby). With regard to his claims to reopen and claims of service connection, as the Board concludes below that the preponderance of the evidence is against the claims, any questions as to the appropriate disability rating and effective date to be assigned are rendered moot. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of either notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Board also finds that VA has complied with all assistance provisions of VCAA. The evidence of record contains the Veteran's service treatment records and post-service VA, Federal, and private medical records. There is no indication of relevant, outstanding records which would support the Veteran's service connection claims. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(1)-(3). As will be discussed below, as the evidence does not establish competent evidence that the Veteran's claimed disabilities were incurred in or due to service, it is not necessary to obtain a VA medical opinion. 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). Moreover, the statutory duty to assist the Veteran does not arise if the Veteran has not presented new and material evidence to reopen his claims. Anderson v. Brown, 9 Vet. App. 542, 546 (1996). For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the new and material and service connection issues on appeal. III. New and Material Evidence The Board notes that even if the RO determined that new and material evidence was received to reopen the claim, or that an entirely new claim was received, the Board is not bound by that determination and must nevertheless consider whether new and material evidence has been received. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The Veteran has had the opportunity to present evidence and argument in support of his appeal. There is no indication that the Board's present review of the claim will result in any prejudice to him. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Generally, an unappealed RO denial is final under 38 U.S.C.A. § 7105(c), and the claim may only be reopened through the receipt of "new and material" evidence. If new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review its former disposition. 38 U.S.C.A. § 5108. See Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). The Veteran's request to reopen his claims of service connection for low back disability, right knee disability, and residuals of left leg contusion, was received in June 2005, and the regulation applicable to his appeal defines new and material evidence as existing evidence that by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a) (2009). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In December 2002, the Veteran filed a claim of service connection for low back pain, right knee disability, and residuals of left leg contusion, which were denied in a January 2003 rating decision on the basis of no disabilities shown. At the time of such decision, service treatment records were on file which reflected complaints of right knee and back pain in November 1986, with no chronic diagnoses rendered. Service treatment records reflect that he sought treatment for a leg injury on an obstacle course in May 2000. A July 2000 entry from a physician's assistant reflects the Veteran's comments that he had completely recovered from the injury. His May 2002 separation examination reflects that his 'spine, other musculoskeletal' and 'lower extremities' were clinically evaluated as normal. Also of record was a July 2002 VA examination report which reflected complaints of low back pain since March 1984, a reported left leg contusion in June 1990, and an August 1983 date of onset of right knee condition which he injured playing sports. Physical examination of the lumbar spine, right knee, and right leg was normal, and x-rays were normal. The examiner stated that there was no pathology to render a diagnosis with regard to the low back and right knee, and diagnosed 12 year status post contusion to left leg and opined that there was no effect on the Veteran's occupation or daily activities. The Veteran did not file a notice of disagreement with regard to the denial of service connection for low back pain, right knee disability, and residuals of left leg contusion, thus the January 2003 RO decision is final with regard to these issues. 38 U.S.C.A. § 7105. Low back disability In support of his claim to reopen, medical records from Winn Army Community Hospital, Patrick Air Force Base, and other private medical providers have been associated with the claims folder; however, such records do not contain any complaints or findings related to a chronic low back disability. What is necessary to reopen the Veteran's claim of service connection for low back disability is medical evidence of a current disability and/or medical evidence suggesting a link between the claimed disability and the Veteran's service or a service-connected disability. Should the Veteran obtain such medical evidence in the future, he may submit such evidence and request that his claim be reopened. The Board acknowledges that lay statements submitted by family members and friends; however, lay assertions regarding medical diagnoses and medical causation cannot suffice to reopen a claim under 38 U.S.C. § 5108. See generally Routen v. Brown, 10 Vet. App. 183, 186 (1997) (citing Wilkinson v. Brown, 8 Vet. App. 263, 268 (1995)); see also Moray v. Brown, 5 Vet. App. 211, 214 (1993) (lay assertions of medical causation cannot serve as a predicate to reopen a veteran's claim). In summary, and for the reasons and bases set forth above, the Board finds that the evidence received in conjunction with the claim to reopen entitlement to service connection for low back disability is not new and material, and does not serve to reopen the claim of service connection. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156(a). Having found that the evidence is not new and material, no further adjudication of the claim is warranted. See Kehoskie v. Derwinski, 2 Vet. App. 31 (1991). Because the Veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen his finally disallowed claim, the benefit-of-the-doubt doctrine is inapplicable. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Residuals of left leg contusion In support of his claim to reopen, medical records from Winn Army Community Hospital, Patrick Air Force Base, and other private medical providers have been associated with the claims folder. The medical records reflect complaints of left leg pain in May 2003. An x-ray examination was negative and the assessment was left leg pain. Such records, however, do not contain any complaints or findings related to a chronic left leg disability due to residuals of contusion. The Board notes that pain alone, without a diagnosed or identifiable underlying malady, does not constitute a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). What is necessary to reopen the Veteran's claim of service connection for residuals of left leg contusion is medical evidence of a current disability and/or medical evidence suggesting a link between the claimed disability and the Veteran's service or a service-connected disability. Should the Veteran obtain such medical evidence in the future, he may submit such evidence and request that his claim be reopened. The Board acknowledges that lay statements submitted by family members and friends; however, lay assertions regarding medical diagnoses and medical causation cannot suffice to reopen a claim under 38 U.S.C. § 5108. See generally Routen v. Brown, 10 Vet. App. 183, 186 (1997) (citing Wilkinson v. Brown, 8 Vet. App. 263, 268 (1995)); see also Moray v. Brown, 5 Vet. App. 211, 214 (1993) (lay assertions of medical causation cannot serve as a predicate to reopen a veteran's claim). In summary, and for the reasons and bases set forth above, the Board finds that the evidence received in conjunction with the claim to reopen entitlement to service connection for residuals of left leg contusion is not new and material, and does not serve to reopen the claim of service connection. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156(a). Having found that the evidence is not new and material, no further adjudication of the claim is warranted. See Kehoskie v. Derwinski, 2 Vet. App. 31 (1991). Because the Veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen his finally disallowed claim, the benefit-of-the-doubt doctrine is inapplicable. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Right knee disability In support of his claim to reopen, medical records from Winn Army Community Hospital, Patrick Air Force Base, and other private medical providers have been associated with the claims folder. The medical records reflect complaints of knee pain and treatment for such pain in March 2005 and thereafter, and a diagnosis of right knee strain. As the new evidence pertains to an element - a current disability - which was not previously of record, such evidence relates to an unestablished fact necessary to substantiate the merits of the claim. Thus, the claim of service connection for right knee disability is reopened. 38 U.S.C.A. § 5108. As detailed, the Board has determined that new and material evidence has been presented to reopen the claim of service connection for right knee disability. While the RO initially determined in the January 2006 rating decision that new and material evidence had not been received to reopen the claim, in the November 2006 statement of the case, the RO determined that new and material evidence had been received and adjudicated the claim on a de novo basis with regard to the claim of service connection for right knee disability. Thus, the RO considered the new medical evidence discussed hereinabove in adjudicating the Veteran's claim. The Veteran has been given an opportunity to submit medical evidence, personal statements, and lay statements. The September 2005 VCAA letter included information concerning direct service connection as to the claimed issue. The Board finds that additional development is not warranted and adjudication in the first instance will not prejudice the Veteran's claims on appeal or his enjoyment of any statutory and regulatory procedural rights. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). IV. Service connection Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). 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). Right knee As detailed hereinabove, service treatment records reflect complaints of right knee pain in November 1986, with no chronic diagnosis rendered. His May 2002 separation examination reflects that his 'lower extremities' were clinically evaluated as normal. A July 2002 VA examination report reflects an August 1983 date of onset of right knee condition which he injured playing sports. Physical examination of the right knee was normal, and an x-ray was normal. The examiner stated that there was no pathology to render a diagnosis with regard to the right knee. In March 2005, the Veteran sought treatment complaining of right knee pain. He reported pain since November 2004 and denied a history of trauma. He reported occasional pain increased when driving. His driving had decreased since December 2004, but he was still experiencing pain and giving way. The assessment was right knee strain. A May 2005 physical therapy treatment record reflects complaints of right lateral knee pain on and off since December 2004. A history of long drives for work and no recent injury is reflected. A September 2005 treatment record reflects complaints of right knee pain for the prior 11 months. He denied any trauma to the area, and could not recall any particular inciting event. He stated that he woke up one day and it was bothering him. The assessment was right knee pain, and right lower leg pain. A September 2005 bone scan reflects a possible reflex sympathetic dystrophy or disuse situation. As detailed, while service treatment records do reflect complaints of right knee pain in November 1986, no chronic disability was diagnosed and his separation examination was normal. Likewise, a July 2002 VA examination was normal. Thereafter, post-service medical records reflect that two years after separation from service, the Veteran reported the onset of right knee pain and a diagnosis of right knee strain. The medical evidence of record, however, does not reflect that any such pain or disability is etiologically related to his complaints of pain 18 years prior. By the Veteran's own admission, the onset of pain occurred 18 years after the in-service complaints of pain, and approximately two and half years after his right knee was clinically evaluated as normal by a trained military medical professional in May 2002 and a medical doctor in July 2002. The medical evidence does not suggest that such current disability is etiologically related to service. A prolonged period without medical complaint can be considered, along with other factors concerning the claimant's health and medical treatment during and after military service, as evidence of whether a disability was incurred in service or whether an injury, if any, resulted in any chronic or persistent disability which still exists currently. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Board has considered the Veteran's lay statements and statements from his family members and friends that his right knee disability manifested in service; however, such contentions are not supported by the record. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). The Board finds that it is unnecessary to schedule the Veteran for a VA examination with regard to the etiology of such current disability, as there is no suggestion that any such disability is related to service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In summary, as there is no evidence of record suggesting that the Veteran's right knee disability is related to his active service, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for right knee disability. Left knee Service treatment records are devoid of any complaints or treatment pertaining to the left knee, and the May 2002 separation examination reflects that the lower extremities were clinically evaluated as normal. He voiced no complaints pertaining to the left knee. Moreover, in December 2002, the Veteran filed a claim for compensation and did not claim service connection for left knee disability. Likewise, he did not voice any complaints pertaining to the left knee at the July 2002 VA examination. Post-service medical records do not reflect any complaints or diagnoses related to the left knee. In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In the absence of any competent evidence of a left knee disability, the Board must conclude the Veteran does not currently suffer from such a disability. Likewise, the Board finds a VA examination is not necessary to make a final adjudication with regard to his claim for left knee disability in the absence of current medical evidence of a chronic disability. McLendon v. Nicholson, 20 Vet. App. 79 (2006). For such reasons, service connection is not warranted. In summary, as left knee disability was not shown in service, and there is no evidence of record reflecting a current left knee disability, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for left knee disability. Sleep apnea Service treatment records are devoid of any complaints or treatment for sleep apnea or any symptomatology related thereto. Likewise, his May 2002 separation examination does not reflect any complaints related to sleep apnea. Moreover, in December 2002, the Veteran filed a claim for compensation and did not claim service connection for sleep apnea. This suggests that he did not have sleep apnea, or that he did not believe any sleep apnea was due to service. Likewise, he did not voice any complaints pertaining to sleep apnea symptomatology at the July 2002 VA examination. In September 2005, the Veteran filed a claim of service connection for sleep apnea. Medical records dated in April 2005 from the Southeast Lung and Critical Care Specialists do reflect that the Veteran was assessed for sleep apnea, and the assessment was presumptive obstructive sleep apnea syndrome. While there is objective medical evidence of a current disability, the evidence does not suggest that such disability is etiologically related to service. Such disability was diagnosed two and a half years after separation from service. A prolonged period without medical complaint can be considered, along with other factors concerning the claimant's health and medical treatment during and after military service, as evidence of whether a disability was incurred in service or whether an injury, if any, resulted in any chronic or persistent disability which still exists currently. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Board has considered the Veteran's lay statements and statements from his family members and friends that his sleep apnea manifested in service; however, such contentions are not supported by the record. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). In light of service treatment records being devoid of any complaints or treatment for sleep apnea, the Board finds that it is unnecessary to schedule the Veteran for a VA examination with regard to the etiology of such current disability. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In summary, as there is no evidence of record suggesting that the Veteran's sleep apnea is related to his active service, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for sleep apnea. ORDER Entitlement to a disability rating in excess of 10 percent for status-post right shoulder acromioplasty with scarring is denied. Entitlement to a disability rating in excess of 10 percent for status-post left shoulder subacromion decompression is denied. Entitlement to a compensable disability rating for status- post debridement and osteophyte excision of the right elbow is denied. As new and material evidence has not been received to reopen the claim of service connection for low back disability, the appeal is denied. As new and material evidence has not been received to reopen the claim of service connection for residuals of left leg contusion, the appeal is denied. New and material evidence having been submitted, the claim of entitlement to service connection for right knee disability is reopened. Entitlement to service connection for right knee disability is denied. Entitlement to service connection for left knee disability is denied. Entitlement to service connection sleep apnea is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs