Citation Nr: 1136825 Decision Date: 09/29/11 Archive Date: 10/11/11 DOCKET NO. 06-17 622 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for bilateral knee disorders, to include as secondary to service connected plantar fasciitis of the left foot. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The appellant is a veteran who served on active duty from September 1989 to June 1993. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida declining to reopen the claim finding no new and material evidence had been submitted. Thereafter, the Board, in an April 2009 decision, reopened the claim and remanded the issue for further development. The case was brought before the Board again in April 2010, at which time the claim was again remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his claim, to include affording him adequate VCAA notice of the secondary aspect of his claim. The requested development having been completed, the case is once again before the Board for appellate consideration of the issues on appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran does not have current diagnoses of a bilateral knee disabilities. CONCLUSION OF LAW Bilateral knee disorders were not incurred in or aggravated by active service and are not attributable to service-connected plantar fasciitis of the left foot. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (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, on the claim. The Veteran must 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) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The notice requirements were met in this case by letters sent to the Veteran in May 2005, August 2010 and May 2011. Those letters advised the Veteran of the information necessary to substantiate his claim, and of his and VA's respective obligations for obtaining specified different types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). The 2010 and 2011 letters also explained how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has not alleged that VA failed to comply with the notice requirements of the VCAA, and he was afforded a meaningful opportunity to participate effectively in the processing of his claims, and has in fact provided additional arguments at every stage. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). Ideally, the notice required by 38 U.S.C.A. § 5103(a) should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). In this case, the 2010 and 2011 letters, which explained to the Veteran evidence needed specifically for the secondary theory of his claim was not provided prior to the initial adjudication of his claim. The Veteran, however, still has the right to VCAA content complying notice and proper subsequent VA process, and that has been done, as discussed above. Any defect with respect to the timing of the VCAA notice requirement was harmless error. Id. Although the notice provided to the Veteran in 2010 and 2011 was not given prior to the first adjudication of the claim, the content of the notice fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), and, after the notice was provided, the claim was readjudicated and an additional SSOC was provided to the Veteran in July 2011. Not only has he been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices, but the actions taken by VA have essentially cured the error in the timing of notice. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the file. Private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. With regard to service connection claims, the Court held in the case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The RO provided the Veteran appropriate VA examinations in 2005 and, most recently in 2009. These examinations are adequate because they are based on a thorough examination, a description of the Veteran's pertinent medical history, a complete review of the claims folder and appropriate diagnostic tests, to include x-ray. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). Further examination or opinion is not needed because, at a minimum, there is no persuasive and competent evidence that the Veteran has currently diagnosed bilateral knee disorders that may be associated with the Veteran's military service or a service-connected disability. This is discussed in more detail below. Indeed, as will be discussed in more detail below, the medical evidence has consistently ruled out any current diagnosis of the bilateral knees. Thus, the Board finds that VA has satisfied the duty to assist the Veteran and the Board may proceed to consider the merits of the claim. Service Connection (Bilateral Knees) Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). This may be shown by affirmative evidence showing inception or aggravation during service or through statutory presumptions. Id. When a disease is first diagnosed after service, service connection can still be granted for that condition if the evidence shows it was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established for a current disability on the basis of a presumption under the law that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C.A. §§ 1112, 1113 and 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307 and 3.309(a). Service connection for arthritis may be established based on a legal "presumption" by showing that either manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307, 3.309(a). Here, this legal presumption is inapplicable because the Veteran has not been diagnosed with arthritis of the knees. The Board also notes a presumption related to undiagnosed illnesses manifested by, among other things, joint pain, for "Persian Gulf" veterans who served on active duty in the Southwest Asia theater of operations during the Persian Gulf War. See 38 C.F.R. § 3.317. Although the Veteran served during the Gulf War Era, his foreign service included service in Korea and not "the Southwest Asia theater of operations." Id. § 3.317(d)(2) (indicating, "The Southwest Asia theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea and the airspace above these locations."). Thus, the presumption is inapplicable here. In the absence of a presumption, 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). Here, the Veteran claims he suffered with bilateral knee pain, diagnosed as bursitis, since his military service. In the alternative, he claims his current bilateral knee pain is attributable to his service-connected plantar fasciitis. The Board acknowledges that the Veteran is competent to give evidence about what he experienced; for example, he is competent to discuss his current pain and other experienced symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). As a layperson, however, the Veteran is not competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder because he does not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). Any disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). "Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected." Id. § 3.310(b). The Veteran's service treatment records confirm complaints and treatment for knee pain. In June 1990, the Veteran sought treatment for left knee swelling, but denied any specific injury at that time. The Veteran was diagnosed with prepatellar bursitis. Complaints and treatment for right knee pain are also documented in 1990. The Veteran's separation examination in 1993 indicates self-reported complaints of "occasional bilateral knee pain," but at that time, the physician did not render any actual diagnosis of the bilateral knees. The Board finds noteworthy, however, that the Veteran's service treatment records confirm extensive complaints and treatment for his left foot plantar fasciitis. Even if a chronic condition was not shown during service, however, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of continuity of symptomatology or under 38 C.F.R. § 3.303(d) if the evidence shows a disease first diagnosed after service was incurred in service. After service, the Veteran continued to complain of knee pain. Indeed, he filed a claim for service connection immediately upon separation from the military. The Veteran was afforded a VA examination in August 1993, a mere two months after separation. At that time, the examiner could not identify any diagnosable condition of the Veteran's bilateral knees. Despite the Veteran's complaints of pain, there was no objective evidence of abnormality. Similarly, the Veteran was afforded VA examinations in April 2005 and, most recently, August 2009, where again diagnostic tests ruled out any knee abnormality. Specifically, the Veteran was most recently afforded a VA examination in August 2009 where x-rays indicated some post-traumatic changes of the femur and tibia, but no significant abnormality of the bilateral knees other than small right and minimal left suprapatellar effusions. The examiner merely "diagnosed" the Veteran with bilateral knee pain finding the knee pain "is not caused by or a result of military service." The Veteran's VA outpatient treatment records through July 2011 indicate periodic complaints of bilateral knee pain, but the Veteran has never been diagnosed with a chronic knee disorder. Indeed, diagnostic tests indicate to the contrary. In short, there simply is no medical evidence in the claims folder indicating the Veteran has a current diagnosis of chronic bilateral knee disorders. To the extent the minimal patellar effusions noted on the August 2009 VA examination x-rays is a "diagnosis," moreover, the examiner specifically opined the Veteran's resulting knee pain is not related to his military service. While the Veteran's continuous complaints of knee pain since service are well documented, complaints of pain alone, without a diagnosed or identifiable underlying malady or condition, do not in and of themselves constitute a disability for which service connection may be granted. See also Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). Rather, service-connection, whether claimed as directly related to service or secondarily related to another service-connected disability, requires, first and foremost, evidence of a disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet. App. 341, 346 (1999); 38 C.F.R. §§ 3.303, 3.304, 3.310. In this case, the medical evidence is against such a finding. To the extent that the Veteran is himself asserting that he, in fact, does have current disabilities as a result of in-service events, laypersons without medical training, such as the Veteran, are not competent to comment on medical matters such as diagnoses and etiology of medical conditions. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Thus, his statements, without more, do not constitute competent favorable evidence. See also Sanchez-Benitez v. West, 13 Vet. App. 282 (1999) (which stipulates that complaints of pain alone, without a diagnosed or identifiable underlying malady or condition, do not in and of themselves constitute a disability for which service connection may be granted). As for the medical literature provided by the Veteran, such generic texts, which do not address the facts in this particular Veteran's own case, and with a sufficient degree of medical certainty, do not amount to competent medical evidence of causality. Sacks v. West, 11 Vet. App. 314 (1998); Libertine v. Brown, 9 Vet. App. 521 (1996); Beausoleil v. Brown, 8 Vet. App. 459 (1996). Therefore, the Board assigns more weight to the objective medical evidence of record as outlined above. As indicated above, the Board has considered the Veteran's statements and contemporaneous medical evidence confirming bilateral knee pain since separation from the military. Cf. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006) (holding a veteran is competent to present lay evidence concerning his continuity of symptoms after service regardless of the lack of contemporaneous medical evidence). The Veteran's claim fails, however, because there is a lack of diagnoses of the claimed conditions. The provisions concerning continuity of symptomatology do not relieve the requirement that there be a diagnosis of chronic disability related to service. For service connection to be established by continuity of symptomatology there must be medical evidence that relates a current condition to that symptomatology. See Savage v. Gober, 10 Vet. App. 488, 495-98 (1997). In other words, despite the Veteran's complaints of bilateral knee pain, no medical professional has ever diagnosed the Veteran with chronic knee disorders related to those complaints and, indeed, medical professionals have proffered to the contrary. The August 2009 VA examiner, moreover, specifically found the Veteran's current knee pain complaints unrelated to his military service. Accordingly, and based on this evidentiary posture, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for bilateral knee disorders. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (in which the Court held that, in the absence of proof of a present disability, there can be no valid claim). See also McClain v. Nicholson, 21 Vet. App. 319 (2007) (which stipulates that a service connection claim may be granted if a diagnosis of a chronic disability was made during the pendency of the appeal, even if the most recent medical evidence suggests that the disability resolved). As the preponderance of the evidence is against this issue, the benefit-of-the-doubt rule does not apply. The Veteran's claim for service connection for this disability must, therefore, be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). ORDER Entitlement to service connection for bilateral knee disorders, to include claimed as secondary to service-connected plantar fasciitis of the left foot, is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs