Citation Nr: 1128564 Decision Date: 08/02/11 Archive Date: 08/10/11 DOCKET NO. 08-06 700A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a left knee condition. 2. Entitlement to service connection for a neck condition. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty in the U. S. Army from June 1991 to January 1995. He then served in the Army Reserve, and his unit was recalled to active duty from November 2004 to January 2006 in support of Operation Iraqi Freedom. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center in Philadelphia, Pennsylvania, denying entitlement to the benefits sought. The issue of service connection for a neck condition is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. FINDING OF FACT There is no competent evidence that the Veteran currently manifests a left knee condition. CONCLUSION OF LAW The criteria are not met to establish service connection for a left knee condition. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION The Duty to Notify and Assist the Claimant The Veterans' Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2010), prescribes several requirements as to VA's duty to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits. Implementing regulations were created, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2010). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must inform the claimant of any information and evidence (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will seek to provide on the claimant's behalf. See also Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004) ("Pelegrini II"). A regulatory amendment effective for claims pending as of or filed after May 30, 2008 removed the requirement that VA specifically request the claimant to provide any evidence in his or her possession that pertains to the claim. 73 Fed. Reg. 23,353-56 (Apr. 30, 2008), codified later at 38 CFR 3.159(b)(1). The United States Court of Appeals for Veterans Claims (Court) has further held in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007) that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim, including notice to the claimant that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Through VCAA notice correspondence dated from December 2006 and January 2008, the RO notified the Veteran as to each element of satisfactory notice set forth under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The VCAA notice further indicated the joint obligation between VA and the Veteran to obtain pertinent evidence and information, stating that VA would undertake reasonable measures to assist in obtaining additional VA medical records, private treatment records and other Federal records. See Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). Meanwhile, an addendum to the December 2006 correspondence informed the Veteran regarding both the disability rating and effective date elements of a pending claim for benefits consistent with the holding in the Dingess/Hartman decision. The relevant notice information must have been timely sent. The Court in Pelegrini II prescribed as the definition of timely notice the sequence of events whereby VCAA notice is provided in advance of the initial adjudication of the claim. See also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In this instance, the initial VCAA notice correspondence was sent before issuance of the February 2007 rating decision adjudicating the claim now before the Board. This letter met the standard for timely notice. Meanwhile, the January 2008 VCAA notice letter was sent after the rating decision on appeal, and thus technically was untimely. This notwithstanding, the Veteran has had an opportunity to respond to the subsequent issued VCAA notice letter in advance of the January 2008 Statement of the Case (SOC) readjudicating his claim. Nor has there been submitted any new evidence since then that would otherwise warrant issuance of a Supplemental Statement of the Case (SSOC) as a more recent post-decisional adjudicatory document. Reviewing the record, there also is no objective indication of any further relevant information or evidence that must be obtained. The Veteran has therefore had the full opportunity to participate in the adjudication of the claim. See Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), affirmed, 499 F.3d 1317 (Fed. Cir. 2007). The RO/AMC has taken appropriate action to comply with the duty to assist the Veteran in this case, through obtaining service treatment records (STRs), and private clinical records based on those outstanding treatment records the Veteran has identified. The Veteran has also undergone a January 2007 VA Compensation and Pension with regard to the claimed disability on appeal. See 38 C.F.R. § 3.159(c)(4) (2010). See too, McClendon v. Nicholson, 20 Vet. App. 79, 83 (2006). In furtherance of his claim, the Veteran has not provided any additional evidence. He declined the opportunity for a hearing. Thus, the record as it stands includes sufficient competent evidence to decide the claim. Under these circumstances, no further action is necessary to assist the Veteran. In sum, the record reflects that the facts pertinent to the claim have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations. That is to say, "the record has been fully developed," and it is "difficult to discern what additional guidance VA could [provide] to the appellant regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004). Accordingly, the Board will adjudicate the claim on the merits. Background and Analysis Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2010); 38 C.F.R. § 3.303(a) (2010). Service connection may also be granted for a disease diagnosed after discharge, where all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2010). The elements of a valid claim for direct service connection are as follows: (1) medical 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) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). Also of application to claims for direct service connection, is the principle that where a chronic disease is shown during service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. On the other hand, continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. Under the latter circumstances, a showing of continuity of symptomatology at the time of service discharge and continuing thereafter is required to support the claim. 38 C.F.R. § 3.303(b). Service treatment records from both the Veteran's periods of active military service are absent mention of symptoms, complaints, or diagnoses of a condition affecting the left knee. Upon VA orthopedic examination of January 2007, regarding the left knee, the Veteran stated that he noticed an occasional soreness especially in the morning at a level of 1 or 2 out of 10. He did not have any flare-ups. He did not have any other problems. He denied any swelling or giving way, and did not have knee pain at the time of the examination. The last episode of pain at a level 1 or 2 had occurred a long time ago. On objective examination, there was no tenderness noted, no swelling, no effusion, and no parapatellar tenderness. The patella was non-displaced, and tracked well. Drawer sign and Lachman's sign were negative. Medial and lateral stress test did not reveal any instability or laxity of the ligaments. Active and passive knee extension was 0 degrees. Repeated range of motion through five repetitions was the same without any complaints of pain or discomfort. Active knee flexion initially was 130 degrees, and passive knee flexion 140 degrees, through with repeated range of motion the latter remained at 130 degrees. McMurray's and Apley's tests were negative. There was no atrophy of the lower extremity muscles, and no vascular skin changes noted. An x-ray of the left knee was unremarkable. The impression given was of normal physical examination of the left knee. Meanwhile, the report of an April 2007 private MRI study of the left knee revealed that no abnormal signal was present in the medial or lateral meniscus to specifically indicate the presence of a tear. There was heterogeneous increased signal intensity in the anterior cruciate ligament which most likely related to intrasubstance edema with no specific evidence of an ACL tear. The posterior cruciate ligament appeared intact as did the medial and lateral collateral ligaments. The quadriceps and patellar tendons had a normal appearance. No osteochondral defects were identified, with normal signal intensity in the bone marrow. There was a small joint effusion. The conclusion of the study was small joint effusion with intrasubstance edema in the anterior cruciate ligament, with no evidence of ligamentous or meniscal tear or significant osseous pathology of the left knee. Based on a review of the preceding medical findings, the Board concludes that the claim for service connection for a left knee condition must be denied. Under pertinent applicable law, it is imperative to establish service connection that there manifest competent evidence of the disability claimed. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), citing Francisco v. Brown, 7 Vet. App. 55, 58 (1994) ("Compensation for service-connected injury is limited to those claims which show a present disability."); Hicks v. West, 12 Vet. App. 86, 89 (1998); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). See also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability."). In the instant case, this essential element of the Veteran's claim has not been proven. The post-service medical evidence is conspicuously absent any indication of VA or private medical treatment for a claimed left knee condition on an outpatient basis. Meanwhile, the January 2007 VA examination similarly evaluated the Veteran carefully for such a condition, but to no avail. The overall impression was of a normal exam of the left knee. This followed detailed range of motion testing, evaluation of the various ligaments of the knee for joint stability, and an x-ray study, as well as consideration of the Veteran's complete reported medical history. An April 2007 private MRI study further corroborated these findings, showing that besides small joint effusion, there was no evidence whatsoever of ligament injury, cartilage injury, or osseous pathology such as degenerative joint disease. Nor has the Veteran identified any outstanding records of treatment for left knee problems that have not yet been obtained. Indeed, he has not directly alleged having currently had a left knee condition, and at the VA exam mentioned that the last episode of knee pain had occurred a long time ago. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (indicating competency of lay testimony to describe symptoms that support a later diagnosis by a physician). It warrants mention that while the Veteran has described a remote history of left knee pain, the manifestation of pain alone without further symptomatology does not constitute a disability for VA compensation purposes. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) ("pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted."); dismissed in part and vacated in part on other grounds, Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). Given the above, the Board is compelled to reach the determination that the Veteran does not currently have a diagnosable disability of the left knee. Without such indication of a present disability, his claim for service connection cannot be substantiated. The Board further points out that the Veteran did not have any documented left knee pathology during military service, or self-reported injury therein, as to suggest that he had in-service left knee problems. It follows that even if there was evidence of a current left knee disability, there is no indication to any extent that such a condition has any causal connection to military service. Accordingly, given the absence of a current disability, the claim for service connection for a left knee condition must be denied. The preponderance of the evidence is against the claim, and under these circumstances the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Service connection for a left knee condition is denied. REMAND The Board finds that further development is needed on the claim for service connection for neck condition before a decision may be issued. Service medical history reflects that when evaluated in July 1991, the Veteran was seen for neck pain with a sore throat, over the previous five days. The Veteran stated that he injured his neck while doing physical training. On follow-up later that month, the Veteran was noted to be tender to palpation of the left trapezius muscle. The assessment given was of muscle strain. In February 1992, the Veteran complained in part of neck pain. He had full neck range of motion, without tenderness. There was no tenderness to palpation. The assessment was neck strain. The Veteran was recommended to take running and ruckmarching at his own reduced pace for the next five days, and avoid carrying objects over 35 pounds. The following month, the Veteran was seen for the primary complaint of neck pain for three weeks. The assessment given was possible strain of the trapezius muscles. The Veteran underwent discharge from his first period of active military service in January 1995. At a March 2000 examination for purpose of enlistment in the Army Reserve the Veteran did not mention any problems involving the neck region. A November 2004 medical exam when the Veteran's unit was recalled to active duty did not disclose any mention of finding of a neck condition. On a November 2005 post-deployment questionnaire the Veteran reported, amongst other things, having developed back pain in service. He then clarified that this referred to "back pain from excessive bumps." The actual separation physical did not reveal any injury pertaining to the neck. Following separation from military service, the Veteran underwent a January 2007 VA Compensation and Pension examination for orthopedic evaluation. At that time, the Veteran indicated that he did not use any braces or collars. He denied any severe episodes of neck pain or low back pain that required physician prescribed bed rest, however, he had missed a total of 41 days of work either due to the knee pain or the lower back pain as his employer would not let him come to work in he was noticed limping. Regarding neck pain, the Veteran stated that about a year or a year and half previously he had started having neck pain, on and off with weather changes, and when it occurred he felt it on the back of the neck and all the way to the top of the head causing headaches. He denied neck pain at the time of the examination. A physical examination was completed. An x-ray of the cervical spine was unremarkable. The impression given was chronic neck pain due to strain. Having afforded comprehensive and objective consideration to the evidence before it, the Board must conclude that another VA medical examination is warranted that offers some insight into the likely etiology of the Veteran's diagnosed neck strain. As stated, there is a diagnosis of chronic pain due to neck strain. Under applicable VA law, this alone cannot support a conclusion of service connection without similarly establishing the element of a causal nexus to military service. The presence of a causal nexus to service is an essential element to establish service connection for a claimed disability. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service."); Hickson, supra. See, too, Duenas v. Principi, 18 Vet. App. 512, 516 (2004). In this situation, the Board finds that a VA examination would be particularly helpful to determine if the requisite causal nexus to service exists. VA will provide a medical examination or obtain a medical opinion where 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 within a qualifying presumptive period; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. 38 U.S.C.A. § 5103A(d)(2) (West 2002 & Supp. 2010); 38 C.F.R. § 3.159(c)(4)(i) (2010). The third prong of this criteria, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). During the prior January 2007 VA examination, the Veteran described a one to one-half year history of chronic neck pain. If indeed correct, this would mean that the onset of his symptomatology was during his second period of military service, as he underwent discharge in January 2006. This assertion of continuity of symptomatology since service is enough under McLendon to show that current neck disability may be associated with military service. The lack of actual in-service documentation of neck symptoms from the second period of military service is not determinative. See e.g., Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (where lay evidence provided is credible and competent, the absence of contemporaneous medical documentation does not preclude further evaluation as to the etiology of the claimed disorder). Therefore, a VA supplemental medical opinion should be procured from the January 2007 VA examiner to resolve the question of the etiology of a cervical spine disorder. This will also provide the opportunity to determine what, if any, relationship the findings of neck strain during the Veteran's first period military service may have to his current claimed disability. Accordingly, this claim is REMANDED for the following action: 1. The RO/AMC should return the claims folder to the VA examiner who conducted the VA orthopedic examination of January 2007, and request a supplemental opinion to ascertain the etiology of neck condition. The claims folder must be provided to and reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed, and all findings should be set forth in detail. The VA examiner should then provide an opinion as to whether the Veteran's neck strain at least as likely as not (50 percent or greater probability) was incurred during military service, taking into account the Veteran's own assertions of in-service injury as well as pertinent medical documentation. The VA examiner is requested to consider the Veteran's assertion that neck pain began during or shortly thereafter his second period of military service. Also please consider what, if any, relationship the documented findings of neck strain during the Veteran's first period military service may have to his current claimed disability. The examiner should include in the examination report the rationale for any opinion expressed. However, if the examiner cannot respond to the inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion. Provided that the January 2007 examiner is not available, or is no longer employed by VA, schedule the Veteran for an examination by an examiner who has not seen him previously, and that addresses the inquiries set forth above regarding the disability claimed. 2. After completion of the foregoing, the RO/AMC should then review the claims file. If any of the directives specified in this remand have not been implemented, appropriate corrective action should be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). 3. Thereafter, the RO/AMC should readjudicate the claim for service connection for a neck condition in light of all additional evidence received. If the benefit sought on appeal is not granted, the Veteran and his representative should be furnished with a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ____________________________________________ D. C. Spickler Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs