Citation Nr: 1312094 Decision Date: 04/11/13 Archive Date: 04/19/13 DOCKET NO. 10-20 774 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a heart disability, claimed as chest pains. ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran performed active naval service from July 1978 to September 1992 when he was medically retired from the Navy. He did not serve in the Southwest Asia Theater of operations. This appeal comes to the Board of Veterans' Appeals (Board) from an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. When the case was before the Board in November 2012, it was decided in part and remanded in part. FINDINGS OF FACT 1. A right knee disability has not been present at any time during the pendency of this claim. 2. A heart disability has not been present at any time during the pendency of this claim. CONCLUSIONS OF LAW 1. A right knee disability was not incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 U.S.C.A.; 38 C.F.R. § 3.303 (2012). 2. A heart disability was not incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 U.S.C.A.; 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided all required notice in a letter mailed in January 2009. In addition, the Veteran's service treatment records (STRs) and all available post-service medical evidence pertinent to the claims have been obtained. In addition, pursuant to the Board's remand directives, the Veteran was afforded appropriate VA examinations. Neither the Veteran nor his representative has identified any additional evidence that could be obtained to substantiate the claims. The Board is also unaware of any such evidence. Therefore, the Board is also satisfied that VA has complied with its duty to assist the Veteran in the development of the facts pertinent to these claims. Legal Criteria Service connection will be awarded for disability resulting from injury or disease incurred in or aggravated by active service (wartime or peacetime). 38 U.S.C.A. §§ 1110, 1131, 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests arthritis or cardiovascular disease to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. 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. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Right Knee Disability The STRs reflect that in April 1980, the Veteran was seen for right knee pain that periodically arose after kneeling, walking, and climbing ladders. The examiner noted good range of motion with no inflammation or crepitus. The assessment was "normal knee." In August 1981, the Veteran was treated for right knee pain. The STR notes a one-year history of right knee pain treated with heat with no positive result. The assessment was rule-out arthritic pain. X-rays were normal. A work-up plan included obtaining sedimentation rates, a uric acid check, and a prescription of Tylenol(r) for pain. The Veteran was instructed to avoid extra stress to the knee. An October 1986 re-enlistment examination report reflects normal lower extremities and an accompanying report of medical history questionnaire reflects that the Veteran checked "no" to any arthritis or lameness. October 1991 and September 1992 Navy medical board reports do not mention any knee complaint. These medical board reports apparently serve as the retirement examination, as no further separation examination report or report of medical history questionnaire is of record. The Veteran filed a claim for service connection for right knee disability in March 1993. September 1993 VA X-rays showed a normal right knee. The X-ray report mentions that there had been no history of a right knee injury. A September 1993 VA general medical compensation examination report reflects that the right knee was normal. In January 2009, the Veteran reported that his right knee pain never fully disappeared after active service and that while his knee did not bother him every day, it did bother him periodically. He concluded that his knee pain did not subside after active service. A January 2013 VA general medical compensation examination report mentions that the Veteran walked with a normal gait and had full strength in both lower extremities. A January 2013 VA knee examination report reflects a history of complaints of right knee pain without a diagnosis. The Veteran reported a history of right knee pain in 1981 and daily symptoms since then. The examiner stated that the only right knee reference in the STRs was an August 1981 report of knee pain. The examiner noted that January 2013 right knee X-rays were normal. The examiner offered the following right knee diagnosis, "Subjective complaints of knee pain without other diagnosis." The examiner concluded that it is unlikely that the Veteran has a knee disability related to active service. The rationale is that there was only one documented right knee pain during active service. The January 2013 medical opinion will be according at least some weight in the matter, but with caution. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (medical opinion based upon an inaccurate factual premise has no probative value). The medical opinion is incorrect with respect to the history of the right knee pains as shown in the STRS. Whereas the offeror of the medical opinion stated that the STRs contain only an August 1981 notation of knee pain, the STRs actually contain two notations of knee pain: an April 1980 notation and the August 1981 notation. The VA's examiner's omission of the April 1980 documentation is not fatal to the medical opinion, however, because ultimately the right knee has been shown to be normal throughout active service and throughout the appeal period. With respect to whether the Veteran's own statements can establish a current disability here, in Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the Federal Circuit determined that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. In this case, the Board acknowledges that the Veteran is competent to state that he experiences knee pain; however, as a layperson, he does not possess the expertise to attribute the pain to a disease or injury. Moreover, pain alone is not subject to service connection absent an underlying disability. Sanchez- Benitez v. West, 13 Vet. App. 282, 285 (1999) (appeal dismissed in part, and vacated and remanded in part, sub nom). Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). "Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability ... in the absence of a proof of present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Court has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this case, the medical evidence shows that no disorder of the right knee has been present during the period of the claim. Therefore, the claim must be denied. In reaching this decision, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. Heart Disability The STRs reflect that in March 1984, the Veteran was seen for intermittent syncope episodes. The STRs mention that these episodes are also called minor blacking-out spells. The assessment was possible vertigo. The STRs reflect further episodes of dizzy spells and further assessments of vertigo. An October 1986 re-enlistment examination report reflects that the heart was normal. A March 1987 report notes sharp left chest and shoulder pain. A February 1989 report notes pain in the anterior chest wall. A March 1989 report mentions left shoulder and upper chest pains. The assessment was pectoralis muscle strain. A May 1989 report mentions occasional chest pain. An October 1989 report mentions occasional chest pains. An August 1991 STR notes an 8-year history of atypical chest pain along with other symptoms, such as dizziness. The assessment was vague symptoms of uncertain etiology. October 1991 and September 1992 Navy medical board reports do not mention any heart complaint or abnormality. The Veteran filed a claim for service connection for chest pain in March 1993. In a November 1993 rating decision, service connection for chest pain was denied. A March 1997 electrocardiogram shows a non-specific T-wave abnormality. In November 1997, the Veteran reported a T-wave abnormality that he believed was related to chest pains during active service. In January 2009, the Veteran argued that his chest pains had continued unchanged since active service. He requested that his claim be reopened. He submitted medical articles that relate T-wave changes to myxedema and to thyroid deficiencies. In October 2009, the Veteran objected to the RO's re-characterization of his claimed "chest pain "disability to one of heart problems. He stated that he originally requested service connection for chest pains because that is the disability for which he continues to seek service connection. The Veteran also submitted a statement in January 2009 in which he stated that he had chest pain in service, noted the aforementioned abnormal electrocardiogram, and stated that his chest pains had not gone away. In August 2010, the Veteran submitted written argument to the effect that his chest pains and other vague symptoms that repeatedly showed up during active service were caused by hypothyroidism. He felt that a hypothyroid crisis that appeared in 1997 had started during active service. The Veteran has been denied service connection for hypothyroidism. A January 2013 VA general medical compensation examination report does not identify any heart-related or chest-related symptom. A January 2013 VA heart compensation examination report reflects that the Veteran reported a history of intermittent upper left chest pain since the mid 1980s. The examiner mentioned the documented complaints of chest and shoulder pains during active service and noted that no heart condition has ever been found. The examiner offered no diagnosis. The Veteran is also not competent to attribute his chest pain to a disease or injury of the heart. The medical evidence shows that no heart disorder has ever been diagnosed. Therefore, this claim must also be denied. In reaching this decision, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. ORDER Service connection for a right knee disability is denied. Service connection for a heart disability, claimed as chest pains, is denied. ______________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs