Citation Nr: 1014745 Decision Date: 04/19/10 Archive Date: 04/30/10 DOCKET NO. 07-10 617 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for bilateral knee disorders. 2. Entitlement to service connection for coronary artery disease. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. J. In, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1966 to April 1986. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri (RO). The issue of entitlement to service connection for coronary artery disease is addressed in the Remand portion of the decision below and is remanded to the RO via the Appeals Management Center in Washington, DC. FINDING OF FACT The evidence of record does not show a current right or left knee disorder related to the Veteran's military service or any incident therein. CONCLUSION OF LAW A right or left knee disorder was not incurred in, or aggravated by, active military service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions under the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2009). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The RO's June 2005 and March 2006 letters advised the Veteran of the foregoing elements of the notice requirements. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993); see Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the RO's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the RO); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). With respect to the Dingess requirements, the RO's March 2006 letter provided the Veteran with notice of what type of information and evidence was needed to establish disability ratings, as well as notice of the type of evidence necessary to establish an effective date. Accordingly, with this letter, the RO effectively satisfied the remaining notice requirements with respect to the issue on appeal. Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, including the opportunity to present pertinent evidence. In addition, the duty to assist the Veteran has also been satisfied in this case. The RO has obtained the Veteran's service treatment records, as well as his identified VA medical treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that a VA examination is not required in this matter. The competent evidence of record does not suggest a link between the Veteran's current bilateral knee disorders and his military service, and no continuity of symptomatology has been shown. The Veteran's service treatment records, as well as his post service treatment records for almost 20 years following his discharge from military service, are completely silent as to any complaints or diagnosis of a bilateral knee disorder. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). While the Veteran contends that he constantly injured and degraded his knees during service, the objective evidence of record indicates otherwise. The first documented evidence of a right or left knee condition was dated in November 2005, noting an assessment of knee pain likely due to arthritis, over 18 years after his discharge from the service. Thus, a VA medical examination addressing the etiology of this condition is not required. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Finally, there is no indication in the record that additional evidence relevant to the issue being decided herein is available and not part of the record. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (finding that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in- service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). The Veteran contends that he currently has right and left knee disorders as a result of his military service. Specifically, he claims that his knees were constantly injured and degraded while serving his military duties in combat, to include jumping from helicopters, tracked vehicles, and large trucks. The Veteran's service treatment records are negative for any complaints, symptoms, or diagnoses of any knee condition. The Veteran denied any history of a trick or locked knee on a December 1985 medical history report, and his March 1986 separation examination report was negative is also negative for any knee condition. A November 2005 VA treatment record noted an assessment of knee pain likely due to arthritis and that orthopedic consultation would be placed for evaluation for knee replacement. A December 2005 VA treatment report noted an assessment of osteoarthritis of bilateral knees. The Veteran reported that he needed replacements bilaterally and that he was on nonsteroidal antiinflammatory drugs. A July 2007 VA treatment report noted that the Veteran was referred to a physical therapy clinic for evaluation regarding a scooter. The VA physician noted the Veteran's history of bilateral lower extremity degenerative joint disease. The Veteran reported limited mobility secondary to bilateral knee pain, as well as cervical pain and lower back pain. The assessment was bilateral lower extremity degenerative joint disease with limited functional activity tolerance. An October 2007 VA treatment report noted the VA physician's opinion that the Veteran was a candidate for knee replacement. A December 2007 VA treatment report also noted an assessment of bilateral knee medial compartment arthritis with varus deformity. After reviewing the evidence of record, the Board finds that service connection is not warranted for a right or left knee disorder. There is a currently diagnosed bilateral knee disorder. See Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). However, service treatment records did not demonstrate complaints of or treatment for any bilateral knee disorder. Moreover, the Veteran denied any history of a trick or locked knee on a December 1985 medical history report, and his March 1986 separation examination report was negative is also negative for any knee condition. Thereafter post service records also failed to document any complaints of or treatment for a bilateral knee disorder for more than 18 years after his discharge from service. This expansive period without complaints or treatment is evidence that there has not been a continuity of symptomatology, and it weighs heavily against the claim herein. See Mense, 1 Vet. App. at 356 (holding that VA did not err in denying service connection when the appellant failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition). Moreover, there is no medical evidence of record linking the Veteran's current bilateral knee disorder to his military service. The Veteran's statements alone can not be considered competent evidence on medical causation, and the Board may not accept unsupported lay speculation with regard to medical issues. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Moreover, to the extent the Veteran contends that he has had ongoing problems with his knees since his discharge from the service, the Board finds this contention not credible. As noted above, the Veteran denied having knee problems in December 1985, shortly before his separation from service. Moreover, the absence of any treatment or even reference to knee problems for over 18 years far more probative on this issue. Thus, the Veteran's statements on causation cannot establish a link between his current bilateral knee disorder and his military service ending nearly 20 years ago. Accordingly, service connection for a bilateral knee disorder is not warranted. The Board has considered the benefit of the doubt doctrine when making these findings, but the preponderance of the evidence is against the Veteran's claim. 38 U.S.C.A. 5107(b) (2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for bilateral knee disorders is denied. REMAND The Veteran is seeking service connection for coronary artery disease. Based upon its review of the Veteran's claims folder, the Board finds there is a further duty to assist the Veteran with his claim therein. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2009). A review of the record reveals that additional private medical records relating to the Veteran's coronary artery disease are available in this matter and have not been obtained. When VA is put on notice prior to the issuance of a final decision of the possible existence of certain records and their relevance, the Board must seek to obtain those records before proceeding with the appeal. Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992); Murphy v. Derwinski, 1 Vet. App. 78 (1990). In his April 2006 notice of disagreement, the Veteran indicated that he has provided VA with private records relating to his angioplasty in 1988 and requested that these records be considered as evidence to support his claim. A review of the claims file reveals that these private records are not included in the file. The record shows that the Veteran established VA Medical Center as his primary care provider in September 2005, and no treatment record predating this time is included in the claims file. Accordingly, the RO should obtain and associate with the file the private medical records relating to the Veteran's angioplasty in 1988, as well as any other treatment records available relating to his coronary artery disease. In disability compensation claims, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for VA to make a decision on the claim. 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i); see also McLendon, 20 Vet. App.at 83. The third prong, which requires that the evidence of record "indicates" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. Id. The Veteran contends that his current coronary artery disease is related to his military service. Specifically, he claims that he experienced a great deal of stress, both in combat and as a food service supervisor, during his 12 years of military service. He also claims that the high-fat diet provided by the military is a known risk factor for coronary artery disease. The Veteran reports that he had early episodes of chest pain related to his coronary heart disorder in the mid 70's and again in 1985 while still in service. A January 1976 service treatment record showed that the Veteran complained of severe and sharp pain in the anterior left chest that was jabbing and made worse by deep breathing or movement. A January 1976 ECG (electrocardiogram) result revealed poor R-wave progression across precordial leads but noted there was no tracing to compare. In an April 1981 service treatment record, the Veteran complained of shortness of breath and left -sided chest pain. An April 1981 ECG result was essentially normal but noted nonspecific T-wave changes. In a November 1985 service treatment record, the Veteran complained again of sharp stabbing pain in the left- sided chest with mild shortness of breath. The ECG report noted normal sinus rhythm, leftward axis, and probably normal electrocardiogram (emphasis added). A December 1985 ECG result indicated marked sinus bradycardia but otherwise within normal limits. Under the circumstances of this case, the Board finds that the Veteran must be afforded a VA examination to determine the etiology of his coronary artery disease. The medical evidence of record shows that the Veteran has a current diagnosis of coronary artery disease. The Veteran reports that he underwent two stent angioplasties in 1988 only two years after military discharge and a coronary artery bypass graft surgery in 1990. A December 2005 VA treatment report noted an ECG testing showing 1st degree heart block. While an inservice diagnosis of coronary artery disease has not been shown, the Board finds that the low threshold described in McLendon has been reached, especially given the multiple complaints of chest pain in service with inconclusive ECG results and the temporal proximity of the Veteran's post- service heart surgeries to his military service. Accordingly, the case is remanded for the following actions: 1. The RO must contact the Veteran to provide him an opportunity to identify the names, addresses, and approximate dates of treatment for all VA and non-VA medical providers who have treated him for his coronary artery disease. The Board is particularly interested in obtaining the Veteran's private treatment records relating to his angioplasty in 1988. The Veteran must be asked to complete a separate VA Form 21-4142 for any physician or source of treatment he may identify. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain the identified records, the RO is unable to secure such records, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; and (c) describe any further action to be taken by the RO with respect to the claim. The Veteran must then be given an opportunity to respond. 2. The RO must afford the Veteran the appropriate VA heart examination to determine the etiology of his current coronary artery disease. The claims file must be provided to and reviewed by the examiner. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. Following a review of the service and post service medical records and examination of the Veteran, the examiner must provide an opinion as to whether it is at least as likely as not (i.e. 50 percent or greater probability) that current coronary artery disease was caused by or aggravated by the Veteran's military service. A complete rationale for all opinions must be provided. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain why an opinion cannot be provided without resort to speculation. The report prepared must be typed. 3. The RO must notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2009). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. The examination report must be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures. 5. 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 paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case addressing all evidence received since the March 2007 statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ WILLIAM YATES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs