Citation Nr: 1132886	
Decision Date: 09/07/11    Archive Date: 09/15/11

DOCKET NO.  08-20 558	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska


THE ISSUES

1.  Entitlement to service connection for bilateral patellofemoral syndrome.  

2.  Entitlement to an effective date earlier than February 26, 2007 for the grant of service connection for post traumatic stress disorder (PTSD).  


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


WITNESSES AT HEARING ON APPEAL

The Veteran & his spouse

ATTORNEY FOR THE BOARD

Christopher Maynard, Counsel

INTRODUCTION

The Veteran had active service from February 2002 to February 2006.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 decision by the RO which, in part, denied service connection for bilateral patellofemoral syndrome and granted service connection for PTSD; effective from February 26, 2007.  A hearing at the RO before the undersigned was conducted in April 2011.  

At the hearing, the Veteran stated that he wished to withdraw the issues of service connection for defective hearing of the left ear, a left ankle disability and plantar fasciitis.  In this regard, the Board notes although these issues were inadvertently identified at the hearing as properly developed for appellate review, the issues were never perfected on appeal.  In any event, given the Veteran's expressed desire not to pursue these claims on appeal, no further development is necessary.  

Similarly, the issue of service connection for bilateral patellofemoral syndrome was not perfected on appeal.  However, in light of the Board's recognition of this issue at the April 2011 hearing, and in keeping with VA's pro-claimant advocacy, the issue will be adjudicated herein below.  


FINDINGS OF FACT

1.  The Veteran's bilateral patellofemoral syndrome is at least as likely as not causally or etiologically related to service.  

2.  An original claim of service connection for PTSD was received on February 26, 2007, more than one year after his discharge from service (February 20, 2006).  

3.  Service connection for PTSD was granted by the RO in July 2007, effective from February 26, 2007.  

4.  The earliest effective date for the establishment of service connection for PTSD is February 26, 2007, the date of receipt of the Veteran's original claim.  


CONCLUSIONS OF LAW

1.  Bilateral patellofemoral syndrome was incurred in service.  38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2010).  

2.  An effective date earlier than February 26, 2007, for the grant of service connection for PTSD is not assignable.  38 U.S.C.A. §§ 5101(a), 5103A, 5107, 5110(a) (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.1(p),(r), 3.151(a), 3.159, 3.160, 3.400(b)(2) (2010).  

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Before addressing the merits of the Veteran's claim, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied.  See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2010); 38 C.F.R. § 3.159 (2010).  Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 C.F.R. § 3.159 (2010).  This must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).  

The notification obligation in this case was accomplished by way of letters from the RO to the Veteran dated in September 2006 (bilateral patellofemoral syndrome) and March 2007 (PTSD).  See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006).  

With respect to the duty to assist in this case, the Board finds that, to the extent possible, all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  In this case, the RO made several attempts to obtain the Veteran's service treatment records without success, and concluded that any further attempts to obtain the records would be futile.  (See May 2007 Formal Finding of Unavailability of Service Records).  The Records Management Center advised the RO in January and again in May 2007 that the Veteran's service records could not be located and that they would be forwarded to the RO if they become available.  The RO also sought to obtain the Veteran's service records from the Colorado Army National Guard, but was advised by letter dated in May 2007, that his records were not located at that facility.  

Considering the aforementioned, the Board concludes that the VA's actions constitute a "reasonably exhaustive search" of all available options.  See Dixon v. Derwinski, 3 Vet. App. 261, 263 (1992).  VA has satisfied the duty to assist the Veteran with regard to obtaining his service treatment records through its actions.  See also Layno v. Brown, 6 Vet. App. 465, 469 (1994); Garlejo v. Derwinski, 2 Vet. App. 619, 620 (1992).  

In light of the favorable decision with respect to the claim for bilateral patellofemoral syndrome, the Board finds that any VA deficiency that may exist in complying with VCAA is harmless error.  Furthermore, the absence of the Veteran's service treatment records has no substantive affect on the outcome of the claim for an earlier effective date for the grant of service connection for PTSD.  That is, the outcome of this issue is dependent on the facts established in the current record and application of the law, and not on any information or evidence that may be contained in his service records.  Thus, there would be no prejudice to the Veteran in adjudicating this issue on appeal.  
Service Connection - In General

Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Service connection may be demonstrated either by showing direct service incurrence or aggravation or by using applicable presumptions, if available.  Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).  

Direct service connection requires a finding that there is a current disability that has a definite relationship with an injury or disease or some other manifestation of the disability during service.  Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992).  

A disorder may be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumptive period, and that he still has such a disorder.  38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-95 (1997).  Such evidence must be medical unless it relates to a disorder that may be competently demonstrated by lay observation.  Id.  For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  38 C.F.R. § 3.303(b).  

Medical evidence of a "chronic" disease should set forth the physical findings and symptomatology elicited by examination within the applicable period.  38 C.F.R. § 3.307(b); Oris v. Derwinski, 2 Vet. App. 95, 96 (1992).  A chronic disease need not be diagnosed during the presumptive period but characteristic manifestations thereof to the required degree must be shown by acceptable medical and lay evidence followed without unreasonable time lapse by definite diagnosis.  38 C.F.R. § 3.307(c); Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991).  

An important factor in the factual question of reasonableness in lapse of time from manifestation to diagnosis under 38 C.F.R. § 3.307(c) is the difficulty in diagnosing the disability and the strength of the evidence establishing an identity between the disease manifestations and the subsequent diagnosis.  A strong evidentiary link tends to ensure the disease is not due to "intercurrent cause" as set forth in 38 C.F.R. § 3.303(b); Cook v. Brown, 4 Vet. App. 231, 238 (1993).  The lapse in time from manifestation to diagnosis under 38 C.F.R. § 3.307(c) "is ultimately a question of fact for the Board to address."  Bielby v. Brown, 7 Vet. App. 260, 266 (1994).  

Bilateral Knee Disability

The Veteran testified that he was treated for bilateral knee pain on several occasions during service, including while he was in Iraq.  He testified that he could not recall any specific injury to his knees and said that his knee pain developed gradually beginning around 2003, particularly when running.  He testified that he was treated with Ibuprofen and put on restricted light duty in service because of his knee pain, but that no diagnostic tests were undertaken until he sought treatment at the VA after his discharge from service.  

As noted, the Veteran's service treatment records are missing, and as such there are no records of the treatment that the Veteran reported.  However, VA treatment records show that the Veteran was seen for bilateral knee pain in August 2006, approximately 6 months after separating from service.  At that time, the Veteran reported that his knee pain began in Iraq about two years earlier, when he was doing a lot of running and training.  He denied any numbness or weakness, and there was no evidence of redness, swelling, edema, erythema or crepitation on examination.  The assessment included bilateral knee pain.    

When examined by VA in October 2006, the examiner indicated that the Veteran's service treatment records were unavailable for review and that the historical information was provided by the Veteran.  The Veteran reported that his knee pain started around December 2002, and that he may have injured his left knee in a motor vehicle accident in 2003, but that he did not recall any specific injury to his right knee.  On examination, there was no heat, redness, erythema, effusion or atrophy and no instability or subluxation.  There was mild discomfort in the medial tibiofemoral joint and mild limitation of flexion, and x-ray studies were within normal limits.  The diagnoses included bilateral patellofemoral pain syndrome.  

The evidentiary record shows that the Veteran filed his original claim for VA compensation benefits in August 2006 at which time he reported a history of chronic bilateral knee pain since service.  He was treated for bilateral knee pain by VA in August 2006 and underwent a VA examination in October 2006, which revealed some mild limitation of motion and medial tibiofemoral joint tenderness.  The examiner concluded that the Veteran's knee problems were consistent with bilateral patellofemoral pain syndrome.  However, without the Veteran's service treatment records, the examiner commented that he could not render an opinion as to whether the current knee problems were related to service.  

Nevertheless, the Court has held that lay testimony is competent regarding features or symptoms of injury or disease when the features or symptoms are within the personal knowledge and observations of the witness.  Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006); Jandreau, 492 F.3d 1372 (Fed. Cir. 2007); Davidson, 581 F. 3d 1313 (Fed. Cir. 2009).  The Federal Circuit has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  

In this case, the Veteran reported experiencing knee pain in service, and sought treatment for his knees shortly after leaving service.  His testimony before the Board was consistent and appeared sincere, and the Board has found no reason to question the credibility of the Veteran's reports.  While the examiner did not have any service treatment records to review, and declined to provide an opinion as to the etiology of the Veteran's current bilateral knee disability, the Veteran's assertions of in-service knee symptoms continuing to the present are found to be credible, and can serve in lieu of a medical opinion of record as they demonstrate continuity of knee-related symptomatology since service.  Therefore, resolving any reasonable doubt on this issue in the Veteran's favor, it is concluded that service connection for bilateral patellofemoral pain syndrome is warranted.  

Earlier Effective Dates

The Veteran contends that the effective date for the grant of service connection for PTSD should be from the date of his discharge from service.  The Veteran testified that while he did not file a claim for PTSD until more than one year after his discharge from service, he was treated for and diagnosed with PTSD within the first year of service separation.  He also asserted that consideration should be given to the fact that he has some memory loss associated with his service-connected traumatic brain injury.  

Concerning the Veteran's testimony, the fact that he not only filed a VA compensation claim for multiple disabilities in August 2006, but reported for subsequent examinations in September and October 2006, and kept his appointments for psychiatric counseling for his diagnosed PTSD on several occasions prior to filing his claim for PTSD in February 2007, weighs against a finding that he suffered any significant memory impairment which may have affected his judgment or cognitive ability to file a claim for PTSD within his first year of discharge from service.  

Furthermore, VA psychiatric treatment records showed that his recent and remote memory was grossly intact when seen in November 2006.  While the Veteran reported some decreased concentration when seen in December 2006 and January 2007, there were no complaints or indication of any memory impairment, and his thought process was linear and goal directed.  While the Veteran was shown to have some deterioration in cognitive function later in 2007 and 2008, his everyday memory skills were only mildly impaired.  (See March 2008 VA neuropsychological evaluation).  In summary, the objective evidence of record does not show any significant impairment of memory or decreased cognitive function which would have impaired the Veteran from filing a claim for PTSD within one year of his discharge from service.  

The effective date of an award of service connection is based upon a variety of factors, including the date of receipt of a claim, and the date entitlement is shown.  Generally, the date of entitlement to an award of service connection will be the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, it will be the date of receipt of the claim, or the date entitlement arose, whichever is later.  38 C.F.R. § 3.400(b)(2)(i).  

The date of receipt of a claim is the date on which a claim, information, or evidence is received by the VA.  38 C.F.R. § 3.1(r).  A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit.  38 C.F.R. §§ 3.1(p); 3.155.  

Historically, the Veteran made no mention of any psychiatric problems on his original application for VA compensation benefits received in August 2006, or when examined by VA in September and October 2006, and no pertinent abnormalities were noted on examinations at that time.  In fact, the Veteran was noted to be alert, oriented and pleasant, and his humor and conversation was appropriate.  (See October 2006 VA report).  The evidentiary record showed that the Veteran had a positive PTSD screen on a VA outpatient note in August 2006, and was referred for psychiatric counseling.  The Veteran was initially seen by VA psychiatric services in November 2006, at which time he was diagnosed with PTSD.  The record also showed that he attended several subsequent psychotherapy sessions in December 2006 and January 2007.  

A claim of service connection for PTSD was received from the Veteran on February 26, 2007, more than one year after his discharge from service.  When examined by VA in June 2007, the examiner opined that it was at least as likely as not that the Veteran's PTSD was related to his combat experiences in Iraq.  By rating action in July 2007, the RO granted service connection for PTSD, and assigned an effective of February 26, 2007.  

Under 38 C.F.R. § 3.157, a report of examination or hospitalization will be accepted as an informal claim for benefits.  However, the provisions of 38 C.F.R. § 3.157 only apply once a formal claim for compensation or pension has been allowed or compensation disallowed because the disability is not compensable.  Treatment records do not constitute an informal claim when service connection has not yet been established for the claimed condition.  38 C.F.R. § 3.157; Lalonde v. West, 12 Vet. App. 377 (1999).  

Here, the Veteran's February 2007 claim was not pre-dated by an adjudication of the type cited in 38 C.F.R. § 3.157(b) and, as such, that provision of the regulations is not applicable to the facts in this case.  38 C.F.R. § 3.157.  

Turning to the merits of the Veteran's claim, the provisions of the law governing effective date of awards of benefits are clear and unambiguous.  The effective date of an award of service connection based on an original claim is the day following separation from service or date entitlement arose, if the claim is received within one year of discharge from service; otherwise the date of receipt of a claim, or the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i).  

Applying the regulations to the facts of this case, the Board finds that the RO's assignment of an effective date of February 26, 2007, for the grant of service connection for PTSD is entirely appropriate.  The Veteran does not claim, nor does the evidence of record show, any correspondence which could be reasonably construed as a claim of service connection for PTSD prior to the claim he filed in February 2007 (received on the 26th of February).  

The Veteran was discharged from service effective on February 20, 2006, which the Board recognizes is only slightly more than a year after he was discharged from service.  Unfortunately, while the Board is sympathetic toward the Veteran, it is bound by the law, and this decision is dictated by the relevant statutes and regulations.  The Board is without authority to grant benefits simply because it might perceive the result to be equitable.  See 38 U.S.C.A. §§503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994).  The Board further observes that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress."  Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992).  

In this case, the law is very clear that when, as in this case, a claim is received more than one year after service, the effective date is the later of the date of claim and the date of entitlement.
 
As such, because the RO already assigned an effective date of February 26, 2007, the date of receipt of the Veteran's original claim of service connection for PTSD, the Board is without legal authority to grant an earlier effective date.  38 C.F.R. § 3.400(b)(2)(ii).  Consequently, the Board concludes that it has no alternative but to deny the Veteran's appeal.  Sabonis v. Brown, 6 Vet. App. 426 (1994).  


ORDER

Service connection for bilateral patellofemoral pain syndrome is granted.  

An effective date earlier than February 26, 2007, for the grant of service connection for degenerative arthritis of the left knee is denied.  


____________________________________________
MATTHEW W. BLACKWELDER
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs