Citation Nr: 1315290 Decision Date: 05/09/13 Archive Date: 05/15/13 DOCKET NO. 09-25 277 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for a left knee disability. 2. Entitlement to service connection for a right knee disability. 3. Entitlement to service connection for a left ankle disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran had active service from May 1986 to May 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Board notes that, in his September 2008 notice of disagreement (NOD) and July 2009 substantive appeal, the Veteran also indicated that he disagreed with the September 2008 denial of his claims for service connection for bilateral hearing loss, low back, right ankle, and right eye disabilities. In one of August 2009, June 2011, or November 2012 rating decisions, the RO granted entitlement to service connection for each of the foregoing. These decisions represent a complete grant of benefits with respect to each of these issues. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Therefore, the issues are not currently on appeal before the Board. The Veteran had a hearing before the undersigned Veterans Law Judge in November 2012. A transcript of that proceeding has been associated with the Veteran's VA Virtual claims file. The issue of entitlement to service connection for a left ankle disability 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. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has a left knee disability that is etiologically related to a disease, injury, or event in service. 2. The preponderance of the evidence is against finding that the Veteran has a right knee disability that is etiologically related to a disease, injury, or event in service. CONCLUSIONS OF LAW 1. A left knee disability was not incurred in or aggravated by service, and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 2. A right knee disability was not incurred in or aggravated by service, and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. 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, 3.326(a) (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and 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). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. VCAA letters dated in February 2008 and May 2008 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(b)(1) (2011); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims. The letters informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. The letters also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As noted above, the Veteran also was afforded a hearing before the undersigned during which he presented oral argument in support of his service connection claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2011) requires that the VLJ/AVLJ/DRO who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the AVLJ fully explained the issues on appeal during the hearing and specifically discussed the basis of the prior determination, the element(s) of the claims that were lacking to substantiate the claims for benefits (specifically the absence of a current diagnosis), and suggested the submission of evidence that would be beneficial to the Veteran's claims. Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the Veteran has been continuously represented by an experienced Veterans Service Organization and has submitted argument in support of his claims. These arguments have referenced the applicable law and regulations necessary for a grant of service connection. Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claims and is not prejudiced by a decision in this case. As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records are in the file. The Veteran has not reported to the RO that he received VA treatment for his knees, but did state during his February 2013 Board hearing that he sought treatment for his knees with VA and was told that his knee problems were not that serious and that no treatment was warranted. To the extent that such treatment was sought through VA, the Board concludes that no benefit would flow to the Veteran by remanding his right or left knee claims. As will be discussed in greater detail below, the Veteran's claims are denied because there is no competent evidence of a diagnosed right or left knee disability. The Veteran is competent to report a contemporaneous diagnosis, see Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), and, in this case, he concedes that despite seeking treatment for his knees he has not been diagnosed with a right or left knee disability. As such, a remand to obtain any potential VA treatment records would serve no useful purpose. Sabonis, 6 Vet. App. at 430. Private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran has at no time otherwise referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claims, as defined by law. See 38 C.F.R. § 3.159(c)(4). In this case, the Veteran was provided a general VA examination, which included his bilateral knees, in March 2008. The examiner considered the Veteran's contentions, but concluded that he did not have a current diagnosis of a right or left knee disability. The decision was based on review of the claims file, interview of the Veteran, physical examination, and x-rays of the knees. Based on the foregoing, the Board finds the examination report to be thorough, complete, and sufficient upon which to base a decision with respect to the Veteran's right and left knee claims for service connection. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). In the instant case, however, there is no presumed service connection because arthritis of the right or left knee was not medically diagnosed within one year of discharge. Indeed, as will be discussed in greater detail below, the Veteran has not been diagnosed with a right or left knee disability. Notwithstanding, the Board will consider whether service connection is otherwise warranted on a direct basis. In the absence of presumptive service connection, to establish a right to compensation for a present disability on a direct basis, a Veteran must show: "(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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran contends that he has right and left knee disabilities as a result of his military service. Specifically, the Veteran contends that the repetitive motion of his job duties during military service, including heavy lifting and carrying, repetitive motion, and ascending and descending stairs, caused his current bilateral knee problems. The Veteran's service treatment records include August 1986, March 1991, May 1996, August 1998, August 2001 Reports of Medical Examination, which included normal findings as to the lower extremities. On each of those occasions, the Veteran denied a history of trick or locked knee. He did not report any knee problems at that time. In February 1988, the Veteran reported being hit 3 inches below his patella by a 150 pound piece of sheet metal. He stated that he felt his knees buckle at impact. On examination, there was a superficial laceration with local edema. The Veteran maintained full range of motion. In December 2002, the Veteran denied a history of musculoskeletal problems, including muscle aches, joint pain, and swollen joints. In October 2005, the Veteran denied a history of arthritis. In numerous dental treatment records throughout his military service, as recently as February 2007, the Veteran denied a history of arthritis or painful joints. After service, the Veteran contends that he was evaluated by VA and told that his knees were not that bad and that there was nothing that could be done for him. Such a record has not been associated with the claims file. The Veteran concedes that he was not diagnosed with a left or right knee disability by VA. The Veteran was afforded a general VA examination in March 2008. The examiner noted review of the claims file. On examination, the Veteran had a normal gait. There was no evidence of abnormal weight bearing and the Veteran had full range of bilateral flexion and extension, without additional loss of motion on repetitive use. X-rays of the right knee showed an intact joint, patellar osteophyte, no effusion, and no patellar subluxation. X-rays of the left knee showed an intact joint without spurring, patellar spurring without effusion, and no patellar subluxation. Based on the foregoing, the examiner concluded that there was no significant evidence of pathology and that no diagnosed disability was warranted for either knee. Having reviewed the complete record, the Board concludes that the preponderance of the evidence is against finding that the Veteran has a right or left knee disability that was incurred in or otherwise related to military service. In order to warrant service connection, the threshold requirement is competent evidence of the existence of the claimed disability at some point during a veteran's appeal. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (requirement 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"); Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). While the Board recognizes the Veteran's sincere belief in his right and left knee claims and description of his symptoms, the most competent medical evidence of record does not show that the Veteran has a current right or left knee disability caused or aggravated by military service during any period of his appeal. Indeed, as noted above, the record reflects that the March 2008 VA general medical examiner specifically considered the Veteran's right and left knee symptoms, conducted a physical examination, and reviewed x-ray evidence, but concluded that the Veteran did not have a current right or left knee disability. Since this examination, the medical evidence of record does not indicate a diagnosis has been made as to the right or left knee. Indeed, the Veteran concedes that medical professionals have concluded that his bilateral knee condition was not that bad and that no treatment was warranted. The Board has considered the Veteran's assertions that he has pain in right and left knee, which he believes is due to his military service. In that regard, the Board acknowledges that the Veteran can attest to factual matters of which he has first-hand knowledge, such as experiencing pain with the right and left knee in service and thereafter. His assertions in that regard are entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, 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. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). As to diagnosing a condition that is manifested by knee pain, the Board finds that such a diagnosis would require medical training, given that it would necessarily involve assessing the inner workings of the joint, which are not readily observable by a lay person. This is not a case in which the diagnosis is clear, such as a broken arm or dislocated shoulder. This is a case involving pain within a joint. The Veteran is not competent to diagnose the underlying pathology. The VA examiner who conducted the March 2008 VA examination is competent. In his sound medical judgment, and on the basis of a complete and thorough examination of the Veteran, no underlying pathology was able to be found. In light of the unanimous conclusions of the VA examiner and other treating professionals that the Veteran does not have a right or left knee disability, the Board concludes that the preponderance of the evidence is against granting service connection. As noted, the March 2008 VA examiner considered the Veteran's claims, but concluded that there is no evidence of a current right or left knee disability. Moreover, the Veteran reported that when he sought treatment for his knees he was told the same. As the preponderance of the evidence is against the claims, the benefit-of-the-doubt rule does not apply, and the claims for service connection must be denied. See 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2012); see generally Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). ORDER Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for a right knee disability is denied. REMAND The Veteran also is seeking entitlement to service connection for a left ankle disability. A review of the claims file reveals that a remand is necessary before a decision on the merits can be reached for this issue. The Veteran's service treatment records indicate a February 1997 diagnosis of a second degree left ankle sprain incurred while playing softball. The Veteran was placed on limited duty for one week. The Veteran was afforded a VA examination for his left ankle in October 2010. At that time, the Veteran reported left ankle pain beginning in service due to carrying heavy welding equipment. He noted subjective deformity, instability, pain, stiffness, weakness, incoordination, swelling, and tenderness. On examination, there was objective evidence of left ankle tenderness and pain at rest in the lateral collateral ligament, although there was no laxity. There was objective evidence of pain following repetitive motion. X-rays showed mild spurring of the left ankle joint, but were otherwise normal. The examiner diagnosed recurrent ankle sprain grade 1. The examiner did not provide an opinion as to the etiology of the recurrent left ankle sprain disability. As the initial examination report failed to provide an opinion as to the etiology of the left ankle problems, the Veteran was afforded another VA examination in June 2011. The Veteran again reported that he started having left ankle problems during service due to carrying heavy welding equipment. The Veteran reported subjective symptoms of pain, stiffness, incoordination, decreased speed of the joint, and warmth. The Veteran denied ever having sprained the left foot. On examination, there was objective evidence of tenderness, but no instability, tendon abnormality, or angulation. The examiner diagnosed mild degenerative disease of the left foot, which the examiner found to be at least as likely as not related to the Veteran's active duty service going up and down ladders with heavy welding equipment. In that regard, the Board notes that the Veteran is separately service-connected for bilateral plantar fasciitis claimed as foot arch problems with heel spurs. The Veteran certainly is competent to distinguish problems of the mid-foot with his ankle. See Jandreau, 492 F.3d at 1377. The October 2010 VA examiner diagnosed a specific left ankle disability, but the June 2011 VA examiner (despite noting objective evidence of left ankle tenderness on examination) failed to address, reconcile, or otherwise discuss the October 2010 VA examination findings with respect to the apparent conclusion that the Veteran did not have a specific separate diagnosis of a left ankle disability. As the October 2010 VA examination report did not provide an opinion as to the etiology of the Veteran's then diagnosed left ankle disability and the June 2011 VA examination report failed to reconcile or otherwise discuss the October 2010 left ankle diagnosis in apparently concluding that there was no disability of the left ankle, the Board concludes that a remand is required to afford the Veteran another VA examination to determine the etiology of any current left ankle disability or, if no such disability is found, to reconcile such findings with those made during the October 2010 VA examination. Finally, on remand, any outstanding VA treatment records from May 2007 to the present should be obtained and associated with the record. Accordingly, the case is REMANDED for the following action: 1. Obtain all medical records and hospitalization records from all appropriate VA facilities from May 2007 to the present. Any negative responses should be documented in the file and the Veteran must be provided with an opportunity to provide such medical records. 2. After the above medical records are obtained, to the extent available, schedule the Veteran for an appropriate VA medical examination for his claimed left ankle disability. The claims file must be provided to the examiner for review and the examiner should note that it has been reviewed. Following a review of the relevant evidence in the claims file, obtaining a complete history from the Veteran, a clinical evaluation, and any tests that are deemed necessary, the examiner is asked to provide an opinion as to whether it is at least as likely as not that any present left ankle disability was incurred in, or is otherwise related to, the Veteran's military service? In that regard, the examiner is requested to consider, and reconcile to the extent necessary, the October 2010 VA examination report that diagnosed recurrent left ankle sprain grade 1 and the June 2011 VA examination report that appears to have concluded that the Veteran did not have a separate and distinct left ankle disability, other than problems associated with the mid-foot for which the Veteran is separately service connected. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner must provide the underlying reasons for any opinion provided. 3. After the above actions are completed, readjudicate the Veteran's claim. If the claim remains denied, issue a supplemental statement of the case (SSOC) to the Veteran and his representative, and they should be given an opportunity to respond, before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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. 2012). ______________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs