Citation Nr: 1301236 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 07-11 794 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and Ms. J.G. ATTORNEY FOR THE BOARD K. Curameng, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from February 1993 to January 1997 and from June 2000 to November 2005. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision by the San Diego, California Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claims file is now in the jurisdiction of the Fort Harrison RO (as he resides in Montana). In March 2008, a video conference hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. In April 2008 and in December 2010, the case was remanded for additional development. FINDINGS OF FACT 1. A right knee disability was not manifested in service; arthritis of the right knee was not manifested in the first postservice year; and the preponderance of the evidence is against a finding that the Veteran's current right knee disability is related to his service or to any event therein. 2. The Veteran is not shown to have a left knee disability. CONCLUSIONS OF LAW 1. Service connection for a right knee disability is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. Service connection for a left knee disability is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, 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, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). It applies in the instant case. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his claims prior to their initial adjudication. June 2006, November 2006 and April 2008 letters explained the evidence necessary to substantiate his claims, the evidence VA was responsible for providing, and the evidence he was responsible for providing. This letter also informed the appellant of disability rating and effective date criteria. The Veteran has had ample opportunity to respond/supplement the record and he has not alleged that notice in this case was less than adequate. The Veteran's service treatment records (STRs) and pertinent postservice treatment records have been secured. Virtual VA (VA's electronic data storage system) has been reviewed. (No pertinent evidence was found in Virtual VA.) The RO arranged for VA examinations in June 2006 and January 2011 (with addendum later in January 2011). See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). The Board notes that in his March 2008 hearing testimony the Veteran indicated that he was being evaluated for the claimed disabilities by VA. The Board's subsequent remand sought development for the records pertaining to such evaluation. The identified records were secured. The Board also notes that the Veteran's representative at the hearing requested an MRI. Whether a specific type of study is needed to evaluate a disability at issue is medical question left to the discretion of the examiner. The Veteran had indicated he would request an MRI, and the Board's remand sought the report of any MRI conducted. That no such study was conducted suggests that such was not medically indicated. The Board finds that the record as it now stands includes adequate competent evidence to allow the Board to decide these matters, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. B. Legal Criteria, Factual Background, Analysis Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases (including arthritis) may be service connected on a presumptive basis if manifested to a compensable degree in a specified period of time postservice (one year for arthritis). 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In order to prevail on the issue of service connection, there must be medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). 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. Baldwin v. West, 13 Vet. App. 1(1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative 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. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to these appeals. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. The Veteran's STRs show that on February 1993 examination for entry on his first period of service the Veteran reported he injured his right knee participating in a rodeo four years prior; there was no history of fracture or surgery. The knee had been asymptomatic since. On physical examination, right knee examination was normal; there was no effusion, deformity or discoloration, and range of motion was complete, without pain, crepitus or instability. A November 1995 STR notes that the Veteran experienced left knee pain after wrestling with friends. There were no subsequent notations of complaints, findings, treatment or diagnosis pertaining to the knees. On May 2004 examination for enlistment for his second period of service, the Veteran's lower extremities were normal on clinical evaluation. In history provided at the time the Veteran denied knee trouble. He endorsed that he had a history of broken bone(s)(but did not report any knee disability. On July 2004 and September 2004 pre-deployment health assessments, the Veteran declared that his health in general was excellent. On November 2005 post deployment health assessment, he stated that his health in general was very good. The indicated that during the deployment he experienced swelling, stiff or painful joints, and muscle aches. The joint(s) involved were not identified. . Postservice treatment records include VA and private treatment records, and VA examination reports. On June 2006 VA examination, the Veteran reported injuries in service stepping off a curb and jumping over a wall. He did not seek treatment at such times. His current complaints included pain (precipitated by walking or climbing stairs) and locking of the right knee. Clinical revealed full range of motion and function of the knee. X-rays were interpreted as negative. The assessment was normal knees bilaterally. The examiner commented that the etiology of the Veteran's subjective knee complaints was unclear. A March 2008 VA treatment report notes complaints of knee pain (right greater than left), thought to be due to hypermobility of the knee (hyperextension). Physical therapy was recommended; if there was no improvement, repeat x-rays and orthopedic referral were suggested. A July 2008 VA treatment report notes that X-ray of the knees in 2006 were unremarkable. A January 2011 X-ray from Patrick Hospital shows essentially negative examination of both knees. On January 2011 VA examination, the tentative diagnoses were: right knee degenerative change; "? ACL sprain" "?medical meniscus tear". January 3 2011 X-rays were interpreted as showing very minimal spurring on the right and an essentially negative examination of both knees. After reviewing the January 2011 X-ray, the VA examiner found no clinical or diagnostic evidence of a chronic knee disability related to knee complaints in 1995 and 2006. She indicated that that radiographic evidence showed a normal left knee, and that right knee minimal degenerative changes were less likely than not related to the one complaint pertaining to right knee 17 years earlier. The right knee examination was considered to be normal. Addressing the Veteran's knees in turn, the Board notes initially that regarding the right knee it is not yet entirely resolved whether or not the Veteran has a chronic disability (as the January 2011 VA examination report (with addendum) notes both that the right knee examination was normal and that there was evidence of right knee mild degenerative changes on X-ray. It is not in dispute that such degenerative changes do exist (although their significance is considered minimal at best). Given the assessment of degenerative disc disease, the Veteran Board finds that (for the purpose of this decision, at least) it may be conceded that the Veteran has some degenerative joint disease (arthritis) in the knee. What he must show to establish service connection for such disability is that it is related to his service/complaints noted therein. While a history of a pre-service right knee injury was noted when the Veteran entered service (and the Veteran has reported injuries during service for which he did not seek treatment) a right knee disability was not manifested in service, and right knee arthritis was not manifested in the first postservice year. Consequently, service connection for a right knee disability on the basis that it became manifest in service and persisted, or on a presumptive basis (for arthritis of the right knee as a chronic disease under 38 U.S.C.A. § 1112) is not warranted. Furthermore, there is no competent (medical) evidence in the record that relates any current right knee disability to the Veteran's service. The only competent evidence that directly addresses the matter of a nexus between any current right knee disability and the Veteran's service, the report of the January 2011 VA examiner is against the Veteran's claim. Because it is by a medical professional (who has medical expertise and is competent to offer it) and is accompanied by explanation of rationale (with citation to supporting factual data) it is probative evidence in this matter. Because there is no competent evidence to the contrary, it is persuasive. The Veteran's own opinion relating his current right knee disability to remote undocumented (and untreated) injuries in service is not competent evidence. In the absence of a continuity of symptoms (here not shown), whether or not a current knee disability (such as the minimal arthritis shown) may be related to remote injury(ies) is a medical question that requires medical expertise. Arthritis is an insidious process, with etiology not evident to a layperson. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran is a layperson, lacks medical expertise, and does not cite to supporting medical opinion or medical literature evidence. As any current right knee disability is not shown to be related to the Veteran's service. Regarding the left knee, a threshold requirement for establishing service connection for a claimed disability is that there must be competent evidence of such disability. Here, there is no objective evidence that the Veteran has a left knee disability. The Board acknowledges the Veteran's complaints of left knee pain. However, the United States Court of Appeals for Veterans Claims (Court) has held that pain alone, without a diagnosed or identifiable underlying malady or condition, is not in and of itself a compensable disability. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). While it is not in dispute that the Veteran sustained a left knee injury in service, the record reflects that such injury resolved. There is no evidence of continuity of symptoms following the injury. Furthermore, January 2011 VA examination revealed no clinical or X-ray evidence of a chronic left knee disability. In summary, it is not shown that the Veteran has a current chronic left knee disability. He has not satisfied the threshold legal requirement for establishing service connection for such disability/presented a valid claim of service connection. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). The preponderance of the evidence is against the Veteran's claims of service connection for right knee and left knee disabilities. In such a situation, the benefit of the doubt doctrine does not apply; the appeal in these matters must be denied. ORDER Service connection for a right knee disability is denied. Service connection for a left knee disability is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs