Citation Nr: 1106000 Decision Date: 02/14/11 Archive Date: 02/28/11 DOCKET NO. 09-49 088 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a left knee disability. ATTORNEY FOR THE BOARD P. Johnson, Law Clerk INTRODUCTION The Veteran served on active duty from August 1979 to August 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2009 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. FINDING OF FACT A left knee disability was not shown during active duty or until many years thereafter and has not been found to be related to such service. CONCLUSION OF LAW A left knee disability was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2010). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Initially, the Board notes that it has reviewed all of the evidence in the claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate the issue adjudicated herein and what the evidence in the claims file shows, or fails to show, with respect to the claim adjudicated herein. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate claims for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. 38 U.S.C.A. §§ 5103, 5103A (West 2002). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2010); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and 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. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In March 2006, the Court issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (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. Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In the present case, VA issued a VCAA notice letter to the Veteran in August 2008. This letter informed the Veteran of what evidence was required to substantiate his service connection claim and of his and VA's respective duties for obtaining evidence. This letter also informed the Veteran as to the law pertaining to the assignment of a disability rating and effective date as the Court required in Dingess. In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law provides that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. An examination is deemed "necessary" if the record does not contain sufficient medical evidence for VA to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2010). The Board finds that reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claim, and that there is no reasonable possibility that further assistance would aid in substantiating such claim. In particular, the record contains the Veteran's service treatment records, service personnel records, VA outpatient medical records, statements from the Veteran, and a VA examination report. The Board has carefully reviewed the Veteran's statements and concludes that he has not identified further evidence not already of record. The Board has also reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. As the Board will discuss in detail in its analysis below, the Veteran was provided with a VA examination in May 2009. The report of this examination reflects that the examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate physical examination and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record. Supporting rationale was also provided for the opinion proffered. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board therefore concludes that the examination is adequate for adjudication purposes. See 38 C.F.R. § 4.2 (2010). Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and that no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Essentially, all available evidence that could substantiate the claim has been obtained. There is no indication in the file that there are additional relevant records that have not yet been obtained. All appropriate due process concerns have been satisfied. 38 C.F.R. § 3.103 (2010). The Veteran has been accorded the opportunity to present evidence and argument in support of his claim. He has declined to exercise her option of a personal hearing. Thus, the Board will proceed to a decision. II. Analysis In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. See 38 C.F.R. § 3.303(d) (2010). In order to establish service connection for the claimed disorder, there must be (1) competent and credible evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent and credible evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009), Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). With respect to the first Hickson element, the Veteran has been diagnosed with mild left chondromalacia and left medial meniscal derangement. See the May 2009 VA examination report. A current disability thus has been demonstrated. With respect to the second Hickson element, the Veteran stated that he injured his left knee while playing basketball at Camp Shelby in Mississippi in June 1986. Specifically, the Veteran stated that he went up to block a shot and he lost his balance in the air and landed with all his weight on his left knee. See Veteran statement from June 18, 1986. Following an investigation of the accident, a July 1986 report found that the Veteran had dislocated his left patella and that the injury had occurred in the line of duty. Accordingly, the second Hickson element has been demonstrated. With respect to the third Hickson element, the Veteran was provided with a VA examination in May 2009. After reviewing the Veteran's claims folder and examining the Veteran, the VA examiner diagnosed the Veteran with left mild chondromalacia and left medial meniscal derangement of the knee. While the examiner acknowledged the Veteran's in-service knee injury, the examiner determined that the Veteran's onset of chondromalacia "is extremely common" and would not be related to the Veteran's 1986 patella injury. The examiner also noted that the medial meniscal derangement is not directly linked to the "acute self-limiting injury in 1986." The examiner explained that his opinion was based upon the Veteran's service medical records and that there was no evidence that the Veteran had made any pertinent complaints or sought any continuing relevant treatment after his injury had healed. It was explained that in August 1986 the Veteran noted that his left knee had improved and that he was put on light duty for only a short term. In addition, the Board notes that the May 2009 VA examiner's opinion is consistent with the evidence of record. Specifically, at a March 1991 examination, the examiner found that the Veteran was in good health. No knee disability was noted at that time. Furthermore, an August 1986 examination taken after the Veteran's June 1986 basketball accident indicated that his symptoms had improved and that he had stated that he "feels good." See medical treatment notes from August 1986 examination. To the extent that the Veteran contends that a medical relationship exists between his disabilities and his military service, such statements offered in support of his claim does not constitute competent evidence and cannot be accepted by the Board, because the record does not indicate the claimant has the necessary medical education or experience to provide a competent and credible opinion on a complex matter such as the etiology of his diseases. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002). The Board is aware of the provisions of 38 C.F.R. § 3.303(b), relating to chronicity and continuity of symptomatology. However, the first competent evidence of a knee disability comes from the May 2009 VA examination, more than 15 years after the Veteran has separated from service. As noted above, the VA examiner determined that the Veteran's injury from his basketball accident in 1986 is not related to his current disability. The VA examiner stated in his opinion that "the Veteran did not show any evidence of continuity of complaint or of continuation of need for treatment." See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) [noting that it was proper to consider the veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition he now raised]. See also Voerth v. West, 13 Vet. App. 117, 120-21 (1999) [there must be medical evidence on file demonstrating a relationship between the veteran's current disability and the claimed continuous symptomatology, unless such a relationship is one as to which a lay person's observation is competent]. Such evidence is lacking in this case. Continuity of symptomatology after service has therefore not been demonstrated. As a result the third Hickson element has not been met. In conclusion, for the reasons and bases expressed above, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a left knee disability, as Hickson element (3) has not been met. The benefit sought on appeal is accordingly denied. ORDER Entitlement to service connection for a left knee disability is denied. ____________________________________________ THERESA M. CATINO Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs