Citation Nr: 1315518 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 08-30 672 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a right knee disability. ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The Veteran had active service from April 2002 through April 2007 in the U.S. Marine Corps, as well as subsequent service in the U.S. Marine Corps Reserve. This matter comes before the Board of Veterans' Appeals (Board) from a September 2007 rating decision of the above Regional Office (RO) of the Department of Veterans Affairs (VA) which denied service connection for right knee patellofemoral syndrome (PFS). In November 2011, the Board broadened the claim to include to all right knee conditions, rather than simply the right knee PFS denied by the RO in September 2007. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board remanded the case for additional development and the file has now been returned to the Board for further consideration. FINDINGS OF FACT 1. The Veteran failed to report for a scheduled VA examination in January 2012 without good cause. His failure to cooperate with the requested VA examination served only to deprive the Board of critical, clarifying medical evidence which might have helped establish his claim. 2. The Veteran has not submitted or identified competent evidence of a nexus between his current right knee disability, if any, and active service. CONCLUSION OF LAW A current right knee disability was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1101, 1110, 1154(a), 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.326(a), 3.655 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative 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. 38 C.F.R. § 3.159(b)(1). Notice must be provided prior to an initial 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). The 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). In a pre-adjudication letter dated in April 2007 the RO informed the Veteran of its duty to assist him in substantiating his claim under the VCAA, the effect of this duty upon his claim. In addition, this letter also informed him of how disability ratings and effective dates are assigned. See Dingess, 19 Vet. App. at 484. The Veteran has not asserted any deficiencies in the notice provided. The Board thus finds that the duty to notify the Veteran has been satisfied. The Board also finds that VA has satisfied its duty to assist the Veteran. His service treatment records have been associated with the claims file. The Veteran has denied any post-service right knee treatment, and thus there are no post-service VA or private treatment records associated with the claims file. The Board, in its November 2011 remand, considered the evidence of record and determined that it was necessary for the Veteran to be examined to obtain an opinion on the etiology of the claimed disability. He was scheduled for a VA examination in January 2012, at the VA Medical Center (VAMC) in St. Louis, Missouri, but failed to report. The Veteran has not otherwise indicated a willingness to appear for an examination. He was provided a Supplemental Statement of the Case (SSOC) in July 2012 specifically discussing his failure to report to the scheduled VA examination; however, he has not offered good cause for such failure to report. As such, the Board finds that VA has made reasonable efforts to afford the Veteran a VA examination in conjunction with his appeal. Good cause for his failure to report has not been demonstrated, and no further development is warranted. Adjudication of the appeal will be based on the evidence of record. 38 C.F.R. §§ 3.326(a), 3.655. Additionally, the Board finds there has been substantial compliance with its November 2011 remand directives. The U.S. Court of Appeals for Veterans Claims (Court) has recently held that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.) The record indicates that the AMC scheduled the Veteran for the requested VA examination, however, as discussed above, the Veteran failed to appear. The AMC later issued a SSOC in July 2012. See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders). Therefore, the Board will proceed to review and decide the claim based on the evidence that is of record consistent with 38 C.F.R. § 3.655. No useful purpose would be served in remanding this matter for more development. A remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit to the Veteran. 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). Service Connection Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). When a Veteran seeks service connection for a disability, due consideration shall be given to the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the Veteran served, the Veteran's military records, and all pertinent medical and lay evidence. See 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). The mere fact of an in-service injury is not enough; there must be evidence of a chronic disability resulting from that injury. In order to establish service connection for a claimed disorder, the following must be shown: (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). Service connection may 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. See 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, including arthritis, will be rebuttably presumed if they are manifest to a compensable degree within one year following active service. 38 U.S.C.A. § 1112 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.307, 3.309 (2012). Where there is a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. See 38 C.F.R. § 3.303(b). When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. See 38 C.F.R. § 3.303(b). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In the present appeal, the Veteran's right knee disability has not been diagnosed as a disability for which service connection may be granted on a presumptive basis. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if: (1) the layperson is competent to identify the medical condition; (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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d 1372, 1376-77. Individuals for whom an examination has been scheduled are required to report for the examination. See 38 C.F.R. § 3.326(a). When entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination, and a claimant, without good cause fails to report for such examination, or reexamination action in accordance with this section shall be taken. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655. After considering all information and lay and medical evidence of record in a case 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 benefit of the doubt will be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The benefit-of-the-doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The Veteran asserts that his right knee disability had its onset during service. At the time of his October 2007 Notice of Disagreement, the Veteran reported that he had been seen by a treatment provider the previous December, during service, and had not had continued treatment because he was separating from service and not exercising. At the time of his August 2008 Substantive Appeal, the Veteran asserted that he experienced right knee pain a few times each month and did not receive treatment for such, as his pain would resolve by the time of any appointment for treatment. Service treatment records dated in May 2002 indicate that the Veteran presented after physical training with right knee pain for the past two days. Physical examination at that time was unremarkable. He presented five days later and reported that his injury of the right knee during the physical training course came from falling from a cargo net. In December 2006, the Veteran reported pain in the right knee while running, and denied any right knee trauma. He was diagnosed with a lateral collateral ligament sprain of the right knee. In his December 2006 Medical Assessment, he denied any concerns about his health in general. He reported a history of right knee pain from running. The examiner noted that the Veteran had a right lateral collateral ligament sprain, resolving, not clinically disqualifying. On VA examination in June 2007, the Veteran reported that he had been seen on one occasion during active service, in December 2006, for complaints of right knee pain for one week. He reported that he was running and afterwards felt pain in the lateral aspect of the right knee. The examiner noted that the Veteran, at that time, exhibited some tenderness, laterally; and was diagnosed with a sprain of the lateral collateral ligament and treated with a bandage. He complained of flare-ups of right knee pain two or three times each week. The Veteran denied treatment for his right knee since that time and reported that such had no bearing on his employment or ability to perform the activities of daily living. The examiner noted that when first seen, the Veteran's right knee pain was on a daily basis; and that it appeared, from his history, that the condition was improving, as sprains usually do. He presented for physical examination with a normal gait and did not require any assistive devices. The right knee was completely unremarkable, without effusion, edema, or instability. There was some mild tenderness upon palpation over the lateral collateral ligament. He completed a full squat and rise without any difficulty. He had 135 degrees of flexion, without pain. X-ray examination revealed no abnormalities. The Veteran was diagnosed with a resolving sprain of the right lateral collateral ligament with a normal knee examination and opined that such was resolving and should be completely resolved over the next few months. He asserted that he did not consider the Veteran's right knee findings to be a chronic ongoing problem. In November 2011, the Board noted that the VA examiner did not report as to the Veteran's other instance of in-service right knee treatment, in May 2002. The Board sought an etiological opinion as to the Veteran's right knee, considering all of his in-service right knee complaints and any current complaints and history of continued right knee symptoms. As discussed above, however, he failed to report for the scheduled examination in January 2012, and has not stated a reason why he did not appear, or requested that it be rescheduled. Consequently, the Board is unable to attribute the Veteran's right knee disability, if any, to his active service; specifically, his instances of in-service right knee pain and right lateral collateral ligament sprain. In this case, it is significant that the last time the Veteran's right knee was examined, in June 2007, almost six years ago, he was diagnosed with a resolving right knee disability and the examiner opined that such should be completely resolved over the next few months. It is significant that the examiner, at that time, did not consider the Veteran's right knee disability a chronic on-going problem. If the resolving right knee disability diagnosed on VA examination in June 2007 resolved as expected by the examiner, and the Veteran continued to experience right knee pain, it is not clear whether the Veteran has a current right knee disability. Pain alone, without a diagnosed or identifiable underlying malady or condition, does not constitute a disability for which service connection can be granted. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). A current right knee diagnosis, if appropriate, would have been rendered at the scheduled VA examination for which the Veteran did not present. The Veteran is competent to testify to right knee pain during and since separation from active service, and there is no evidence that he is not credible. Jandreau, 492 F.3d 1372, 1376-77; Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). However, the Board finds that he is not competent to diagnose a specific right knee disability, including arthritis, or relate such symptoms and complaints to active service, as such are complex medical questions. There is no evidence that the Veteran has specific knowledge or skill in musculoskeletal diseases. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions); Kahana, 24 Vet. App. 428. To the extent that the Veteran is competent and credible to report as to continuous symptoms from service to the present, as discussed above, the Veteran's right knee disability has not been diagnosed as a disability for which service connection may be granted on a presumptive basis and his claim is thus ineligible for such an analysis. Walker, 708 F.3d 1331. To be clear, the Board does not dispute that the Veteran injured his right knee during active service or that he has current right knee pain. However, there is no probative evidence that the Veteran's current right knee disability, if any, is etiologically related to the in-service right knee injuries. Again, if he had appeared for his scheduled VA examination, the examiner would have rendered a right knee diagnosis, if appropriate, and offered a nexus opinion considering the Veteran's in-service right knee injuries and statements of continued right knee symptoms. (Continued on the next page) The Board concludes service connection must be denied. As reflected by the discussion above, the preponderance of the evidence is against the Veteran's claim. As such, the benefit-of-the-doubt rule does not apply, and the claim for service connection for a right knee disability must be denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a right knee disability is denied. ____________________________________________ S.L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs