Citation Nr: 1317671 Decision Date: 05/30/13 Archive Date: 06/06/13 DOCKET NO. 09-01 896 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a bilateral knee disorder. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran had active military service from May 2002 to December 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied the benefit sought on appeal. Jurisdiction of this claims file has since been transferred to the RO in Houston, Texas. This claim was previously remanded by the Board in September 2011 so that the Veteran could be scheduled for a hearing. The Veteran subsequently testified at a hearing before the undersigned in January 2012. A written transcript of this hearing has been prepared and incorporated into the evidence of record. The case was then returned to the Board, and in June 2012, the Board again remanded this appeal to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development. The case has now been returned to the Board for appellate disposition. The Veteran's Virtual VA paperless claims file has also been reviewed in preparing this decision. Finally, the Board notes that in January 2009, VA received the Veteran's Substantive Appeal (on VA Form 9) concerning the denial of his claim of entitlement to service connection for a right shoulder disorder. However, a subsequent January 2013 rating decision granted that claim. The Veteran did not appeal either the initial disability rating or effective date assigned. Therefore, that claim has been resolved, and is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement (NOD) must thereafter be timely filed to initiate appellate review of the claim concerning "downstream" issues, such as the compensation level assigned for the disability and the effective date); see, too, 38 C.F.R. § 20.200 (2012). FINDING OF FACT A current bilateral knee disorder is not shown to be causally or etiologically related to the Veteran's active military service. CONCLUSION OF LAW Service connection for a bilateral knee disorder is not established. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION 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, the evidence submitted by the Veteran or on his behalf. 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). I. VA's Duties to Notify and Assist Under applicable law, 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, 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. This notice must be provided prior to an initial unfavorable decision on a claim by the Agency of Original Jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds that the content requirements of a duty-to-assist notice letter have been fully satisfied. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Letters from the RO dated in March 2005, June 2005, and July 2007 provided the Veteran with an explanation of the type of evidence necessary to substantiate his claim, as well as an explanation of what evidence was to be provided by him and what evidence the VA would attempt to obtain on his behalf. The July 2007 letter also provided the Veteran with information concerning the evaluations and effective dates that could be assigned should service connection be granted, pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board notes that the July 2007 duty-to-assist letter was not provided before the initial RO adjudication of his claim in the May 2006 rating decision. However, after he was provided the letter, the claim was then readjudicated in the November 2008 SOC and March 2013 Supplemental SOC (SSOC) based on any additional evidence received in response to that additional notice. This is important to point out because if there was no VCAA notice provided prior to the initial adjudication of the claim, or for whatever reason the notice provided was inadequate or incomplete, this timing error may be effectively "cured" by providing any necessary notice and then going back and readjudicating the claim, including in a SOC or SSOC, such that the intended purpose of the notice is not frustrated and the Veteran is given ample opportunity to participate effectively in the adjudication of his claim. In other words, this timing error in the provision of the notice is ultimately inconsequential and, therefore, at most nonprejudicial, i.e., harmless error. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). For all of these reasons, the Board concludes that the appeal may be adjudicated without a remand for further notification. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained. His STRs, personnel records, and post-service VA treatment records have been obtained. The claims file does not present evidence that the Veteran is currently receiving disability benefits from the Social Security Administration (SSA) for the disorder currently on appeal. Therefore, the Board does not need to make an attempt to obtain these records. The Board does not have notice of any additional relevant evidence that is available but has not been obtained. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on a claim, as defined by law. The record indicates that the Veteran participated in VA examinations in March 2006, April 2006, and July 2012, the results of which have been included in the claims file for review. The examinations involved thorough examinations of the Veteran. The April 2006 and July 2012 examinations also included reviews of the claims file. The July 2012 VA examination also included a medical opinion that was supported by sufficient rationale. Therefore, the Board finds that the VA examinations are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Given the foregoing, the Board finds that the VA has substantially complied with the duty to obtain the requisite medical information necessary to make a decision on the Veteran's claim. Furthermore, the Veteran was afforded a Board hearing in January 2012. A Board member has two duties at a hearing: (1) a duty to fully explain the issues still outstanding that are relevant and material to substantiating the claim, and (2) a duty to suggest that a claimant submit evidence on an issue material to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record. See 38 C.F.R. § 3.103(c)(2) (2012); Procopio v. Shinseki, No. 11-1253, 2012 WL 4882287 at 3 (Vet. App. Oct. 16, 2012) (citing Bryant v. Shinseki, 23 Vet. App. 488, 492, 496 (2010)). Here, during the Board hearing, the AVLJ specifically noted the issue as "service connection for the disabilities you're seeking." See Board hearing transcript, page 2. The Veteran was assisted at the hearing by an accredited representative from the Texas Veterans Commission. See Board hearing transcript, page 1. The hearing then focused on the elements that were lacking to substantiate the claim of entitlement to service connection for a bilateral knee disorder. The representative and the AVLJ then asked questions to ascertain whether the Veteran had submitted evidence in support of this claim. See Board hearing transcript, pages 9-10. In addition, the AVLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Id. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with the hearing requirements, nor identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for benefits. The Veteran's representative and the AVLJ asked questions to draw out the evidence that related the Veteran's bilateral knee disorder to his active military service. As such, the Board finds that the AVLJ complied with the aforementioned hearing duties, and that any error in notice provided during the Veteran's Board hearing constitutes harmless error. In any event, the development (exam and nexus opinion) necessary to substantiate the claim was undertaken. The Board is also satisfied as to substantial compliance with its September 2011 and June 2012 remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). The September 2011 remand directed the RO to schedule the Veteran for a Board hearing. As previously stated, the Veteran was scheduled for this hearing in January 2012, and the transcript has been included in the claims file. The June 2012 remand directed the AMC to obtain the Veteran's VA treatment records dated from December 2004 to the present. All available VA records during this time period were obtained and associated with the Veteran's Virtual VA claims file. The June 2012 remand also included scheduling the Veteran for another VA examination and medical opinion, which were obtained in July 2012. Finally, the remand directed the AMC to readjudicate the claim, which was accomplished in the March 2013 SSOC. Thus, the Board finds that there has been substantial compliance with its remand directives. Id. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claim. Therefore, no further assistance to the Veteran with the development of evidence is required. II. Service Connection The Veteran seeks service connection for a bilateral knee disorder. To establish direct service connection, the record must contain: (1) evidence of a current disorder; (2) medical evidence, or in certain circumstances, lay testimony, of in-service incurrence or aggravation of an injury or disease; and, (3) evidence of a nexus between the current disorder and the in-service disease or injury. In other words, entitlement to service connection for a particular disorder requires evidence of the existence of a current disorder and evidence that the disorder resulted from a disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1110. Service connection may also be granted for any disease diagnosed after the military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d). As noted above, the first element of service connection requires medical evidence of a current disorder. At the March 2006 VA general medical examination, the VA examiner diagnosed the Veteran with knee pain. At the April 2006 VA joints examination, the VA examiner diagnosed the Veteran with subjective patellofemoral pain syndrome of both knees. A VA treatment record dated in May 2008 diagnosed the Veteran with knee arthralgia. The VA treatment records also prescribe the Veteran knee braces for his knee pain. On VA examination in July 2012, the Veteran was diagnosed with patellofemoral syndrome of the bilateral knees. The record does not contain any other pertinent diagnoses. As stated above, the second element of service connection requires medical evidence, or in certain circumstances, lay testimony, of in-service incurrence or aggravation of an injury or disease. At his Board hearing, the Veteran testified that his current bilateral knee disorder was due to lifting heavy objects in service. However, the Veteran's STRs are silent for documentation of the disorder. The records reveal no complaints or treatment related to the Veteran's knees. As previously mentioned, the third element of service connection requires evidence of a nexus between the current disorder and the in-service disease or injury. Here, the only medical nexus opinion of record is negative. The Veteran was afforded a VA general medical examination in March 2006 and a VA joint examination in April 2006. Neither examination provided a medical opinion concerning the etiology of the Veteran's bilateral knee disorder. On VA examination in July 2012, following a review of the claims file, to include the Veteran's lay statements, and a physical examination of the Veteran, the VA examiner determined that it is less likely than not (less than 50-50 probability) that the Veteran's current patellofemoral syndrome of the knees was related to his active military service. The examiner reasoned that there was no evidence in the STRs of complaints of knee problems. The examiner noted that the Veteran reported that his knee problems began "at the time of or just after discharge." However, the examiner pointed out that the Veteran's history regarding his knee problems in the service is subjective in nature. Instead, the examiner found that the first documentation of knee problems in the claims file is the Veteran's service connection claim and the April 2006 VA examination that diagnosed the Veteran with subjective patellofemoral problems with no objective findings. The examiner also pointed out that November 2007 VA Magnetic Resonance Imaging (MRI) of the knees was negative, to include chondromalacia of the patellas. Therefore, the examiner found that in considering all of the evidence, there was no in-service treatment, no treatment until almost three years after his discharge, and subjective complaints without objective MRI findings. Thus, the examiner concluded that the Veteran's current bilateral knee disorder was not due to his active military service. The examiner clearly reviewed the STRs and other evidence in the claims folder. The examiner provided an opinion that is supported by and consistent with the evidence of record. The treatment records do not provide contrary evidence, and in fact, support the denial of the claim. For instance, in an April 2008 VA treatment record, as shown on his Virtual VA paperless claims file, the Veteran told the VA physician that he experienced bilateral knee pain following multiple car accidents. The STRs do not document any car accidents, and the Veteran has not alleged that these car accidents occurred during his active military service. The examiner's opinion is based on consideration of the totality of the evidence that did not "establish[] a nexus sufficient for service connection." Moreover, crucially, despite a name attached to the Veteran's symptoms (patellofemoral syndrome), the Board finds it very significant that there is no objective evidence of a chronic underlying disorder. Irrespective of the Veteran's complaints of pain, there must be evidence of underlying pathology to constitute a disability for VA purposes. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part, vacated and remanded in part on other grounds sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001); Evans v. West, 12 Vet. App. 22, 31-32 (1998). Here there is not. Thus, for all of these reasons and as the evidence is not in equipoise, service connection for a bilateral knee disorder is not warranted. The Board notes the Veteran's contentions of knee pain, both during and since his active military service. However, the Veteran is not entitled to service connection for this claim based on continuity of symptomatology since his military discharge because he does not have a current chronic diagnosis, as stated under the laws and regulations. His current diagnosis of patellofemoral syndrome is not considered a chronic disease under the statute. Therefore, presumptive service connection, and service connection based on continuity of symptomatology, is not warranted for this claim. 38 U.S.C.A. §§ 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307(a), 3.309(a) (2012); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those disorders explicitly recognized as chronic under 38 C.F.R. § 3.309(a)). In reaching this decision, the Board has considered the Veteran's arguments in support of his claim. The Board acknowledges that the Veteran is competent, even as a layperson, to attest to factual matters of which he has first-hand knowledge, e.g., an injury during his active military service. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that lay evidence is one type of evidence that must be considered, and that competent lay evidence can be sufficient in and of itself. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). In Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009), and 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 disorder when: (1) a layperson is competent to identify the medical disorder (noting that sometimes the layperson will be competent to identify the disorder where the disorder 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. Id. Although the Veteran is competent to report that he injured his knees during his active military service, which resulted in his current bilateral knee disorder, the Board must still weigh his lay statements against the medical evidence of record. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between 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")). In making this credibility determination, the Board does not find the Veteran's statements in April 2013 that he went to sick call in service on account of his knees to be credible. He did not report in-service treatment at the Board hearing. He denied being seen in service for an evaluation of his knees at the July 2012 VA examination. He did not report in-service treatment at the April 2006 VA examination. He did not report in-service treatment on his March 2005 application. For these reasons, the Board does not find the most recent statements of in-service treatment to be credible. It follows that the July 2012 VA examiner's observation of an absence of treatment of the knees in the service treatment records is an accurate factual statement and proper basis upon which to find no nexus between any current disorder and service. Moreover, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, whether the Veteran has a chronic knee disability that is a continuing disease process related to in-service physical activity as opposed to a distinct and separate disability due to post-service events, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer)." The Board notes that under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. The preponderance of the evidence, however, is against the Veteran's claim, and thus that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's claim of entitlement to service connection for a bilateral knee disorder is not warranted. ORDER The claim for service connection for a bilateral knee disorder is denied. ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs