Citation Nr: 1312267	
Decision Date: 04/12/13    Archive Date: 04/19/13

DOCKET NO.  07-37 315	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUE

Entitlement to service connection for a right knee disability.


REPRESENTATION

Appellant represented by:	Minnesota Department of Veterans Affairs


ATTORNEY FOR THE BOARD

Cheryl E. Handy, Associate Counsel


INTRODUCTION

The Veteran, who is the appellant, served on active duty from July 2003 to October 2003, February 2004 to May 2005, including service in the Persian Gulf, and from October 2009 to August 2010, including service in Iraq for which he earned the Combat Action Badge.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in February 2007 of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota.

This case was previously before the Board in May 2009 and in June 2012 when it was remanded for further development, to include obtaining additional records.  As the requested development has been completed, no further action to ensure compliance with the remand directive is required.  Stegall v. West, 11 Vet. App. 268 (1998).


FINDING OF FACT

A current right knee disability as a result of service is not shown.


CONCLUSION OF LAW

The criteria for service connection of a right knee disability have not been met.  38 U.S.C.A. §§ 1117, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

As provided for by the 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).

Duty to Notify

Proper notice from VA must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1); see Quartuccio v. Principi, 16 Vet. App. 183 (2002).

In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.

VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

Here, the Veteran was sent letters in October 2005, March 2006, July 2006 and October 2010 that provided information as to what evidence was required to substantiate the claim(s) and of the division of responsibilities between VA and a claimant in developing an appeal.  The March 2006 letter also explained what type of information and evidence was needed to establish a disability rating and effective date.  Accordingly, no further development is required with respect to the duty to notify.

Duty to Assist

Next, VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file.  These files together comprise the claims file.  The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination.  Moreover, his statements in support of the claim are of record.  The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified.  The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim.

In compliance with the Board's June 2012 remand, the RO obtained copies of the Veteran's service treatment records from his unit and requested that the Veteran furnish any relevant medical records reflecting treatment for his right knee.  The service treatment records were received in September 2012.  The Veteran has not provided any additional information regarding treatment for or a diagnosis of a right knee disability, nor has he indicated that relevant medical records exist which the VA should obtain.  

While the June 2012 remand referred to the possibility of an examination with respect to the Veteran's knee, the scheduling of such an examination was made conditional on the provision of evidence, either in the service treatment records, or in records of medical treatment since service separation, which demonstrated a current right knee disability.  There having been no demonstration of a current right knee disability, and there being three VA examinations prior to the remand which all showed no evidence of a current right knee disability, there was no basis for scheduling yet another examination.  Thus VA has complied with the June 2012 remand instructions.  Stegall v. West, 11 Vet. App. 268 (1998).

The Veteran was afforded VA examinations in November 2005, July 2008, and November 2010 with respect to his claim of service connection for a right knee disability.  The Board notes that the VA examination reports contain sufficiently specific clinical findings and informed discussion of the pertinent history and features of the disability on appeal to provide probative medical evidence adequate for adjudicative purposes.  The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary.  See generally 38 C.F.R. § 3.159(c)(4).  

For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Principles of Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110. 

Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  All three elements must be established by competent and credible evidence in order that service connection may be granted.

In this case, several legal theories operate in conjunction with 38 U.S.C.A. § 1110 as implemented in 38 C.F.R. § 3.303.

Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service.  This may be accomplished by affirmatively showing inception or aggravation during service.  38 C.F.R. § 3.303(a).

Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d). 

In a service connection claim, the threshold question is whether or not the Veteran actually has the disability for which service connection is sought.  In the absence of proof of present disability, there can be no valid claim of service connection.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  The requirement of a current disability may be met by evidence of symptomatology at the time of filing or at any point during the pendency of the claim.  McClain v. Nicholson, 21 Vet. App. 319, 323 (2007).

The Court has held that pain alone without a diagnosed or underlying malady or condition is not a disability for which service connection may be granted.  Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), aff'd in part, vacated and remanded in part on other grounds, 259 F.3d 1356 (Fed. Cir. 2001).  

Compensation may be paid to any Persian Gulf War Veteran "suffering from a chronic disability resulting from an undiagnosed illness (or combination of undiagnosed illnesses)."  38 U.S.C.A. § 1117.  These may include, but are not limited to, muscle pain, joint pain, neurologic signs or symptoms, and symptoms involving the respiratory system.  38 C.F.R. § 3.317(b).

Such chronic disability must have manifested either during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more no later than December 31, 2016, and must not be attributed to any known clinical diagnosis by history, physical examination, or laboratory tests.  Objective indications of a chronic disability include both 'signs', in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification.

A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; (B) medically unexplained chronic unexplained multi-symptom illnesses that are defined by a cluster of signs or symptoms such as (1) chronic fatigue syndrome (CFS); (2) fibromyalgia; (3) functional gastrointestinal disorders (excluding structural gastrointestinal diseases).  Signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic unexplained multi-symptom illness include, but are not limited to (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurological signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss.  38 C.F.R. § 3.317(b)(1)-(12) (2012).

Only a "Persian Gulf Veteran," i.e., one who served on active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War, qualifies for the presumption related to qualifying chronic disabilities.  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.  38 C.F.R. § 3.317(e)(1), (2).  Service in Afghanistan is not included as service in the "Southwest Asia theater of operations."

Evidentiary Standards 

VA must give due consideration to all pertinent medical and lay evidence in a case where a Veteran is seeking service connection.  38 U.S.C.A. § 1154(a).  

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159.

Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion.  38 C.F.R. § 3.159.

Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").  A Veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses.  Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding that, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation). 

The Board, as fact finder, must determine the probative value or weight of the admissible evidence.  Washington v. Nicholson, 19 Vet. App. 362, 369 (2005).

When there is an approximate balance of positive and negative admissible evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran.  38 U.S.C.A. § 5107(b). 


Facts and Analysis

The Veteran served on active duty in Afghanistan from May 2004 through April 2005.  In September 2005, the Veteran filed a claim of service connection for a bilateral knee disability.  Service connection has been granted for a left knee disability.  After the filing of his original claim of service connection, the Veteran was recalled to active duty and his claim was held in abeyance during this period of service and processing resumed once it was completed.  During this second service period, the Veteran served on active duty in Kuwait and Iraq from November 2009 through July 2010.

The Veteran's service treatment records are silent as to any complaints, treatment, or diagnosis of any right knee pain or disability.  These records had indicated complaints of left knee pain on periodic medical history questionnaires, but specified that the pain was in the left knee and did not reference any symptoms relative to the right knee.

On November 2005 VA examination, the Veteran reported that his right knee began bothering him when he arrived in Afghanistan, but he had never sought medical treatment for it.  Physical examination showed full range of motion in the right knee and no evidence of laxity or instability in the knee.  There was no decrease in range of motion with repetitive testing and no pain with palpation of the joint lines.  The examiner diagnosed a history of knee pain while in military service but did not diagnose any current pathology or disability.  

On July 2008 VA examination to determine if the Veteran had an undiagnosed illness as a result of his Persian Gulf service, the Veteran reported bilateral knee and shoulder pain.  He described soreness in his knees with inactivity and after activity, specifically in the knee cap area.  Physical examination showed a normal neurological examination, normal reflexes in the right leg and knee, and his X-rays were reported as normal.  He had normal range of motion in the right knee and his gait was normal.  There was no pain with palpation or range of motion testing and no additional limitation after repetitive motion.  The examiner found no condition to diagnose with respect to the Veteran's knees or shoulders.

On November 2010 VA examination, the Veteran reported that his right knee condition began in 2007 and had gotten progressively worse.  He took NSAID painkillers as needed, which brought relief of pain.  He stated that his right knee problems had increased since his most recent deployment, and attributed the problem to jumping in and out of trucks while wearing full body armor.  He described experiencing pain and stiffness in his legs after riding in cramped quarters on long convoys.  

The current pain was mild to moderate and precipitated by weather changes, sitting for prolonged periods and cramped positions.  He reported having no limitation of motion in the right knee and no need for any treatment.  He reported no deformity, instability, stiffness, incoordination, weakness, effusion, inflammation, subluxation, or locking episodes.  He had no limitations in walking, but could not stand for more than 45 minutes or sit for longer than two hours without increased right knee pain.  He reported having lost a day of work in the past twelve months due to knee pain.  

Physical examination showed normal sitting tolerance and sit to stand, as well as normal gait and ability to heel-toe walk.  His muscles were normal in bulk, tone, and strength, as well as function, and his sensory examination was normal.  He had full range of motion without pain and negative patellar compression tests, negative effusion, nontender infrapatellar space, and no tenderness to the joint lines or medial tibial plateau.  

All tests for instability were negative and there was no further limitation or motion or function after repetitive motion.  X-rays showed no acute fracture or significant degenerative changes to the right knee.  The examiner stated that there was no diagnosis for the right knee because, despite the Veteran's complaints of intermittent pain, there was "absolutely no abnormality found on physical examination."

Based on the evidence set forth above which consistently shows that there is no evidence of a right knee disability or any underlying pathology for the Veteran's complaints of right knee pain, service connection for a right knee disability is not warranted.  The Veteran's service treatment records reflect that he has not been treated for or diagnosed with right knee pain or any disability and there is no evidence of treatment or diagnosis since service separation.  Indeed, the Veteran has stated that he has limited his treatment to the occasional over-the-counter pain relief medication.  In addition, three separate VA examinations over the space of five years have stated that the Veteran does not have any pathology or diagnosable condition of the right knee.  

The Veteran has complained of pain and reports of stiffness and difficulty sitting or standing for prolonged periods.  Evidence provided by lay persons with respect to their symptoms or their own personal experience is competent and the Board has no cause to doubt the Veteran's credibility.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Pain alone, without an underlying pathology, is not a disability for which service connection may be afforded.  Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), aff'd in part, vacated and remanded in part on other grounds, 259 F.3d 1356 (Fed. Cir. 2001).

The Board has considered the question of service connection for right knee disability under the provisions for presumptive service connection for qualifying chronic conditions and undiagnosed illnesses as provided in 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317.  These provisions are not applicable here for several reasons.  First, the Veteran has described his symptoms of right knee pain as beginning during his service in Afghanistan, which is not considered part of the Southwest Asia theater of operations as defined in 38 C.F.R. § 3.317(e).  

While the Veteran did have subsequent service in Kuwait and Iraq, which part of the Southwest Asia theater, this service occurred later, even after the initial filing of the claim for service connection.  As such, the right knee pain pre-existed the service in the Southwest Asia theater.  The Veteran's right knee pain would not be subject to service connection as a result of aggravation during his service in Iraq and Kuwait because, as explained above, there is no underlying pathology or disability which would have been aggravated by this period of service.

In addition, there has been no evidence of fibromyalgia or other medically unexplained multi-symptom illness before or since his service in the Persian Gulf.  The July 2008 VA examiner, though tasked with identifying any conditions linked to Persian Gulf service, affirmatively stated that there was no such diagnosis with respect to the Veteran's knee pain.  As such, service connection based on an undiagnosed or medically unexplained illness is likewise not warranted.  38 U.S.C.A. § 1117; 38 C.F.R. § 3.317.

As the preponderance of the evidence is against the existence of a current right knee disability, reasonable doubt does not arise and the claim is denied.  38 U.S.C.A. § 5107(b).


ORDER

Entitlement to service connection for a right knee disability is denied.



____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs