Citation Nr: 1309601 Decision Date: 03/21/13 Archive Date: 04/01/13 DOCKET NO. 09-02 471 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a left knee disability. 2. Entitlement to service connection for a residual disability due to a broken left second toe, to include as secondary to a left knee disability. ATTORNEY FOR THE BOARD C.L. Krasinski, Counsel INTRODUCTION The Veteran served on active duty from July 1980 to September 1980. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO). This matter was remanded in June 2011 for additional development. The Board notes that the Veteran requested a videoconference hearing before the Board in December 2012. He stated that he had previously been scheduled for a Travel Board hearing but was unable to attend because he was in prison. The record shows that the Veteran did not report to a Travel Board hearing scheduled in March 2011 and that the prison authorities would not transport him to the RO for the hearing. The Veteran also indicated that if he was unable to appear before the Board via videoconference hearing, he was submitting a written statement for consideration by the Board in support of his claims. The record shows that the Veteran is currently serving a 99 year prison sentence; he has served approximately 30 years of the sentence. See the Veteran's statement dated in July 2008. At this point in time, the Board is unable to provide a videoconference hearing with a correctional facility. The Board notes that the regulations contemplate Board hearings at the Board's offices in Washington, DC and at VA field facilities, including by "electronic hearing;" i.e. videoconference hearings. See 38 C.F.R. § 20.700 , et seq. The regulations do not provide for Board members to travel to prison facilities to conduct hearings, nor do they mention telephone hearings. The Board would be operating outside the regulatory scheme if it were to provide telephone hearings and there is no provision for a personal telephone hearing. Thus, the Veteran's hearing request is considered withdrawn. The Board will proceed to adjudicate the case based on the evidence of record. See 38 C.F.R. § 20.704 (e) (2012). FINDINGS OF FACT 1. A left knee disability was not identified on the examination when the Veteran was accepted for his period of active service. 2. There is clear and unmistakable evidence that the left knee disability pre-existed active service and did not increase in severity during service. 3. The Veteran does not currently have a residual disability due to a broken left second toe and examination of the left foot and toes is normal. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disability have not been met. 38 U.S.C.A. §§ 1111, 1131, 1137, 1153, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306 (2012). 2. The criteria for service connection for a residual disability due to a broken left second toe have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Duty to Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). 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); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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 in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ), in this case the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). VCAA notice requirements apply to all five elements of a service connection claim (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). The Board concludes that the Veteran has been afforded appropriate notice under VCAA. The RO provided VCAA notice letters to the Veteran in March 2008 and June 2008, prior to the initial adjudication of the claims. The letters notified the Veteran of what information and evidence must be submitted to substantiate claims for service connection, as well as what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also told to inform VA of any additional information or evidence that VA should have, and was told to submit evidence in support of his claims to the RO. The content of the letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The requirements of VCAA also include notice of a disability rating and an effective date for award of benefits if service connection is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The March 2008 and June 2008 letters provided the Veteran with notice of the laws regarding degrees of disability or effective dates. The Board finds that all relevant evidence has been obtained with regard to the Veteran's claims, and the duty to assist requirements have been satisfied. All available service treatment records were obtained. The Veteran's treatment records from his correctional facility dated from 1981 to 2008 are associated with the claims folder. There is no identified evidence that needs to be addressed. In July 2008, the Veteran indicated that he had no additional information or evidence to submit in support of his claims. The Veteran underwent an adequate VA examination in July 2011 to obtain medical evidence as to the nature and etiology of the claimed disabilities and to obtain evidence as whether the claimed left knee disability existed prior to service and was aggravated during service. The VA examiner provided the requested medical opinions. Under the circumstances, the Board finds that there is no reasonable possibility that further assistance would aid the Veteran in substantiating the claims. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Service Connection Legal Authority Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires competent evidence showing, (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Every person employed in the active military, naval, or air service shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. §§ 1111, 1137. A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306 (a). If a preexisting disorder is noted upon entry into service, and the claimant brings a claim for service connection on the basis of aggravation under section 1153, the burden falls on the claimant to establish aggravation of the preexisting disorder. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. §§ 1137, 1153; 38 C.F.R. §§ 3.304, 3.306(b). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). In Horn v. Shinseki, 25 Vet. App. 231 (2012), the Court indicated that if a disease is not noted at service entrance, the presumption of soundness applies under 38 U.S.C.A. § 1111. The Court stated that the burden of proof then shifts to VA to establish by clear and unmistakable evidence both that a disease preexisted service and was not aggravated by service. The Court noted that to rebut the aggravation prong of the presumption of soundness, VA must establish by clear and unmistakable evidence either that the preexisting disease did not increase in severity during service or that any increase was due to the natural progress of the disease. The Court indicated that this burden of proof must be met by "affirmative evidence" demonstrating that there was no aggravation and the burden is not met by finding "that the record contains insufficient evidence of aggravation." The Court noted that the Veteran need never produce any evidence of aggravation to prevail under the aggravation prong, even if clear and unmistakable evidence establishes that the disease preexisted service. In other words, the burden is never shifted back to the Veteran to show that his disability increased in severity during service. The U.S. Court of Appeals for Veterans Claims (Court) has held that service connection can be granted for a disability that is aggravated by a service-connected disability, and that compensation can be paid for any additional impairment resulting from the service-connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995). A disability that is proximately due to or the result of a service-connected disease or injury shall be service connected as well. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 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. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(b). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C.A. § 7104(a). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.102, 4.3. Discussion: Service connection for a left knee disability In a December 2007 Application for Compensation and/or Pension, via a VA Form 21-526, the Veteran reported that he fell from a rope 16 feet high during training and injured his knee. The Veteran contends that service connection is warranted for a left knee disorder due to this injury. Service records show that the Veteran served in active duty from July 22, 1980 to September 25, 1980. As noted above, every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. This presumption attaches only where there has been an induction examination in which the later-complained-of disability was not noted. The term "noted" denotes only such conditions as are recorded in examination reports. History provided by the Veteran of the pre-service existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a preexisting condition. 38 C.F.R. § 3.304(b)(1) (2012); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995). In cases where the disease or injury at issue is not noted on the entrance examination, a two-pronged test is for consideration in determining whether the presumption of soundness has been rebutted. First, VA must show by clear and unmistakable evidence that the disease or injury existed prior to service. Second, VA must show by clear and unmistakable evidence that the preexisting disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). Concerning clear and unmistakable evidence that the disease or injury was not aggravated by service, the second step necessary to rebut the presumption of soundness, a lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. See Wagner v. Principi, 370 F.3d 1089, 1094-96 (Fed. Cir. 2004); 38 U.S.C.A. § 1153 (West Supp. 2010). When no preexisting condition is noted upon entry into service, a Veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that demonstrates that the injury or disease preexisted service and was not aggravated by such service. The government may show a lack of aggravation by establishing by clear and unmistakable evidence that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. See 38 U.S.C.A. § 1111; 38 C.F.R. 3.304(b), Wagner v. Principi, 370 F. 3d 1089, 1096 (Fed. Cir. 2004); VAOPGCPREC 3-03 (July 16, 2003). In the present case, a preexisting knee disability was not noted upon entry into service and the Veteran is presumed to have been sound upon entry into service. The Board finds that the presumption of soundness is rebutted and there is clear and unmistakable evidence that a left knee disability existed prior to service and was not aggravated by such service beyond the natural progression of the disease. The Veteran entered active service on July 22, 1980. Service treatment records show that 9 days after service enlistment, the Veteran sought treatment for left knee pain. Review of the June 1980 entrance examination report revealed a notation of a scar on the Veteran's left knee; however, no abnormalities of the Veteran's left knee was noted. Subsequently, in service treatment records dated July 30, 1980, the Veteran complained of knee pain and the inability to train and stand on his left knee for one day due to such pain. Following an examination of the Veteran's left knee, the examiner noted mild edema, full range of motion, no erythema or crepitus, and the provisional diagnosis was knee condition, existed prior to service. It was noted that a fitness for duty determination would be on August 5, 1980. There is no separation examination of record. Upon separation from service, the Veteran's DD Form 214 lists the reason for his separation as the Trainee Discharge Program (TDP) Marginal or nonproductive. Post service treatment records from the Department of Correctional Health Services (DCHS) reflect the Veteran's conflicting reports regarding his left knee disorder. In October 1982, the Veteran's locomotor was assessed as within normal limits and his gait was noted as good, steady, and coordinated from May 1987 to June 1987. In September 1988, he reported his lower extremities as normal. A March 1994 x-ray report showed the left knee as normal, and his extremities were noted as full range of motion, pulses intact and symmetrical, and no evidence of muscle wasting in November 2006. On the other hand, in a March 1992 record, the Veteran complained that an officer shut the cell door on his left knee and that "it just barely hurts." A small red mark to the left knee cap was documented, but there was evidence of active range of motion and no swelling. In August 1994, the Veteran gave a history of sustaining an injury to his left knee when he was in a motorcycle accident in 1979, and internal derangement of the left knee, most likely a torn medial meniscus, was diagnosed. In November 2003, torn cartilage in the left knee in a motorcycle accident at the age of 17 was noted under the Veteran's history of trauma. In an undated record, the Veteran reported "some story of pain with his left knee while in the service, that he has discomfort with it from time to time, but denies that it affects his physical functioning in any significant way." In two July 1994 records, the Veteran complained of constant left knee pain, and reported being discharged due to torn cartilage in his knee in a September 2000 record. In April 2008, the Veteran requested medical treatment for his left knee pain which he again reported as injured in service. Then, in May 2008, he noted a history of over 20 years for left knee pain localized at the medial joint line, no recent history of trauma or swelling, and that he injured his left knee while in military service. The diagnosis was chronic left knee pain and there was evidence of limited range of motion in the left lower extremity. There is clear and unmistakable evidence establishing that the left knee disability existed prior to service and was not aggravated during service. The service treatment records and the July 2011 VA medical opinion are clear and unmistakable evidence that the left knee disability existed prior to service. As noted above, the Veteran received treatment for his left knee 9 days after entrance into service. the left knee was examined and the physician determined that the left knee condition existed prior to service. The July 2011 VA examiner indicated that the claims file was reviewed, which includes the service treatment records and post-service treatment records which support the opinions rendered. A VA medical opinion was obtained in July 2011 as to whether the left knee disability increased in severity during active service beyond the natural progression of the disease. The VA examiner considered the claims folder including the service treatment records and the Veteran's entire medical history pertinent to the left knee disability including the Veteran's own statements concerning this disease in arriving at the medical opinion. The examiner reviewed the treatment records from the correctional facility and noted the treatment of the left knee since 1980. The examination report indicates that the Veteran reported that the left knee disability began in 1980. The Veteran stated that he injured his left knee when he fell off a training rope, he was put him in a truck, ice was put on his knee, and he was taken back to his company. The Veteran stated that he underwent x-ray examination, was placed on light duty, and he ended up getting a discharge. The Veteran stated that now, he has a dull ache and when he stands up, it feels like it is coming apart behind the knee cap. He stated that the knee symptoms were intermittent with remissions and he treated the knee symptoms with non-steroidal anti inflammatories. The Veteran also reported having instability, pain, stiffness, weakness, and swelling in the left knee. The Veteran underwent physical examination. Examination revealed crepitus of the left knee. Range of motion of the left knee was 10 degrees to 90 degrees. There was no objective evidence of painful motion. The diagnosis was left patellofemoral syndrome. The July 2011 VA medical opinion is clear and unmistakable evidence that establishes that the pre-existing left knee disability was not aggravated during service. The July 2011 VA medical opinion is affirmative evidence that establishes that the pre-existing left knee disability was not aggravated during service. The examiner indicated that there is clear documentation of the pre-existing left knee condition and there is no evidence of a permanent increase in severity in the pre-existing left knee condition as there was only 2 episodes of care that showed only a transitory increase in symptoms or complaints and the complaints would have been consistent with the documented injury with the 1979 motorcycle accident. The examiner stated that there was no treatment documentation within a reasonable amount of time after September 25, 1980 discharge from service showing a chronic or permanent worsening of the pre-existing left knee condition. The examiner indicated that the x-ray examination showed no abnormalities. While the examiner did not use the phrase "clear and unmistakable" with regard to the finding that there was no evidence of a permanent increase in severity of the pre-existing left knee condition, a fair reading of that conclusion is that it is obvious, manifest and undebatable that the left knee condition was not aggravated and therefore it was clearly and unmistakably not aggravated during service. The examiner gave an adequate rationale for that conclusion. The Board has the duty to assess the credibility and weight to be given to the evidence. See Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997), and cases cited therein. In evaluating the probative value of medical statements, the Board looks at factors such as the health care provider's knowledge and skill in analyzing the medical data. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); see also Black v. Brown, 10 Vet. App. 279, 284 (1997). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Board finds that the July 2011 VA medical opinion to have great evidentiary weight in this case. The VA medical reviewer considered the claims folder including the service treatment records and the Veteran's entire medical history pertinent to the left knee including the Veteran's own statements concerning this disability in arriving at the medical opinion. The examiner provided a rationale for the opinion and cited to the facts which supported the opinion. The examiner's opinion is supported by a rationale and is adequate for adjudication purposes. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran has submitted his own lay statements that the left knee disability was incurred in service and he relates the current left knee disability to the injury in service. In a December 2007 Application for Compensation and/or Pension, via a VA Form 21-526, the Veteran reported that he fell from a rope 16 feet high during training and injured his knee. The Veteran is competent to report observable symptoms such as knee pain and first-hand events such as an injury. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). However, the Board finds that the Veteran's statements that he injured his left knee in a fall in service are not credible. The first time the Veteran asserted that he injured his left knee in a fall in service was at the time he filed his claim for disability benefits in December 2007. He did not report this injury when he sought medical treatment for left knee pain in service in July 1980. The service treatment records show that in July 1980, the Veteran reported that he had knee pain and he was unable to stand or train. He did not report a fall from 16 feet at that time or at any time in the service treatment records. He did not report the fall and the knee injury until he filed a claim for compensation benefits. As noted by the VA examiner, the Veteran did not report the alleged in-service knee injury to health care providers at the correctional facility in the years prior to filing the claim for disability benefits but he did make some vague references to an injury in service when he sought medical treatment after December 2007. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). See also Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (finding that lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care); Pond v. West, 12 Vet. App. 341 (1999) (finding that, although Board must take into consideration the Veteran's statements, it may consider whether self-interest may be a factor in making such statements). In the present case, the Board finds that the Veteran's credibility is undermined by the fact that he did not report the in-service fall and injury to the left knee until he filed a claim for disability benefits. The correctional facility treatment records indicate that the Veteran consistently reported a pre-service 1979 motorcycle accident and injury to the left knee over the years. The correctional facility treatment records also indicate that the Veteran sustained a post service injury to the left knee. He did not report the alleged in-service injury to the left knee at those times. The Board finds that the Veteran's statements regarding the alleged in-service fall and injury to the left knee to have limited probative value because the Veteran lacks credibility. The Veteran's statements are inconsistent with his other statements of record and with his other statements concerning his left knee and it appears that the Veteran made the statements with a desire for monetary gain. The Veteran has submitted several lay statements from acquaintances dated in March 2008. Those statements have no probative value because while they both indicate that they have known the Veteran for several years or a number of years, they attest only to his current condition and neither person indicates any personal knowledge of any claimed knee injury in service. The Board finds that the service treatment records, the correctional facility treatment records, and the July 2011 VA medical opinion, when considered together, are clear and unmistakable evidence that demonstrates that the left knee disability preexisted service and was not permanently aggravated by such service beyond the natural progression of the disease. The presumption of soundness is rebutted by clear and unmistakable evidence that demonstrates that the left knee disability preexisted service and was not aggravated by such service. The Board finds that the preponderance of the evidence is against the claim and that the benefit of the doubt doctrine is not for application. Gilbert, 1 Vet. App. 49. Accordingly, the claim for service connection for the left knee disability is denied. Discussion: Service connection for a residual disability due to a left second toe fracture The Veteran also contends that service connection is warranted for residuals of a broken left toe, to include as secondary to his left knee disorder. In a January 2009 substantive appeal, via a VA Form 9, he asserted that he broke his toe in 1986 because his left knee gave out due to the in-service injury. He asserts that he broke his second left toe. Post service treatment records from the correctional facility reflect the Veteran's complaint of left toe pain and prior trauma to his left toe. In October 2001, the Veteran's left foot was examined pursuant to his complaint of toe pain and the examination revealed evidence of a mild bunion, but no evidence of significant bony changes or significant hallux valgus deformity. A November 2003 record documents the Veteran's history of trauma, specifically a fracture, of the left second toe. There is no competent evidence of a current left second toe disability. The July 2011 VA examination report indicates that no left toe disability was found on examination. X-ray examination of the left foot was normal. There were no abnormal clinical or x-ray findings. The diagnosis was normal left toe examination. The Veteran is competent to state that he has an observable symptom such as toe pain. He is also competent to report first hand events such as an injury. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran reports having current symptoms of left toe pain. However, the probative medical evidence shows that the Veteran does not have a current left toe disability. The symptoms of toe pain have not been attributed to an identifiable underlying malady or disability. Examination of the left foot and toes in July 2011 was normal. See the VA examination report dated in July 2011. The Veteran has not submitted medical evidence to support his lay assertions that he has a current left toe disability that had its clinical onset during service or is otherwise related to active service or a service-connected disability. As discussed above, service connection is not warranted for a left knee disability. The Veteran is competent to identify an observable manifestations, such as pain. However, he is not competent to render a medical diagnosis or opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). The Court has held that Congress specifically limited service-connected benefits to cases where there is a current disability. "In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The weight of the evidence shows that the Veteran does not have a current left toe disability. The symptoms of left toe pain have not been attributed to an identifiable disability. The Court has held that a symptom, alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability. Without a pathology to which the symptoms can be attributed, there is no basis to find a disability for which service connection may be granted. 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). Without competent evidence of a diagnosed disability, service connection for the disorder cannot be awarded. See Brammer; supra; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004) (holding that service connection requires a showing of current disability); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (holding that a grant of service connection requires that there be a showing of disability at the time of the claim, as opposed to sometime in the distant past). As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, on this record, the Board concludes that service connection for a left toe disability is not warranted. The claim for service connection is denied. ORDER Service connection for a left knee disability is denied. Service connection for a left toe disability is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs