Citation Nr: 1318138 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 03-26 083 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for right knee disability. 2. Entitlement to an initial evaluation in excess of 10 percent for cervical spine degenerative joint disease. 3. Entitlement to an initial compensable evaluation for Wolff-Parkinson White disease. 4. Entitlement to an initial compensable evaluation for right shoulder disability. 5. Entitlement to an initial compensable evaluation for hemorrhoids. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from July 1976 to July 2002. These matters are before the Board of Veterans' Appeals (Board) on appeal from a March 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In March 2005, the Veteran testified at a video conference hearing held before the undersigned Acting Veterans Law Judge. A copy of this transcript has been added to the Veteran's claims file. In July 2006, the Board remanded this case for additional evidentiary development. In June 2007, the RO issued a rating decision granting, in part, an increased initial evaluation of 10 percent for cervical spine degenerative joint disease, effective from August 1, 2012. The Veteran continues to seek the maximum benefit allowed by law for this disability. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). In the June 2007 rating decision the RO also granted the Veteran's claim for service connection for low back disability, effective August 1, 2002. The United States Court of Appeals for the Federal Circuit has held that the RO's award of service connection for a particular disability constitutes a full award of benefits on the appeal initiated by a notice of disagreement on such issue. See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). Therefore, the matter is not before the Board. In addition to the paper claims file, there is a Virtual VA (VVA) electronic claims file associated with the Veteran's claim. Both the Board and originating agency (see June 2012 Supplemental Statement of the Case (SSOC)) have reviewed VA treatment records and examination reports dated from January 2002 to April 2012 contained in the VVA file. The other documents in the VVA file are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The increased rating issues are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDING OF FACT No disability of the right knee has been shown during the pendency of this claim. CONCLUSION OF LAW The criteria for service connection for right knee disability have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) With regard to the claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions of the VCAA. 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). 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This 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). The notice requirements apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) 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. August 2002 and August 2006 letters from the RO and AMC advised the Veteran of the foregoing elements of the notice requirements. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Although the Veteran was not provided adequate notice until after the initial adjudication of the claim, the Board finds that there is no prejudice in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development of the record, the originating agency readjudicated the claim. See June 2012 SSOC. There is no indication in the record or reason to believe that the decision of the originating agency would have been different had adequate VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). The duty to notify has been met. Regarding the duty to assist, the originating agency has obtained all of the Veteran's available service treatment records (STRs) and pertinent, available VA and private post-service medical treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran was also provided with a VA examination for joints in December 2006. This examination was performed by a VA examiner that reviewed the Veteran's claims file and the history of the condition with the Veteran, examined the Veteran, and provided the rationale for the conclusions reached. The Board finds this examination to be adequate for evaluation purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Veteran has not claimed that this examination is inadequate. In July 2006, the Board remanded this matter back to the RO to provide the Veteran with additional notice; and schedule him for an examination to ascertain the nature and etiology of any current right knee disability found. The RO provided the Veteran with the requested notice in an August 2006 letter, and scheduled him for a VA examination for joints in December 2006. Accordingly, the directives of the Board's July 2006 remand have been accomplished. See Stegall v. West, 11 Vet. App. 268 (1998). In reviewing this matter, the Board has considered all of the evidence in the Veteran's claims file, as well as his VVA file. As noted above, the VVA file includes some VA treatment records which were received after the RO's most recent (June 2012) SSOC was issued. Although new, this evidence is not pertinent to the issue being adjudicated herein. Specifically, the evidence does not reflect any treatment for or diagnosis of a right knee disability. Accordingly, a remand for issuance of a new SSOC is not required. There is no sign in the record that additional evidence relevant to the issue being addressed is available and not part of the record. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance affects the outcome, any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, supra. Service Connection for Right Knee Disability Initially, the Board notes that it has reviewed all of the evidence in the Veteran's claims file and VVA file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. 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). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, 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. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The most fundamental requirement for any claim for service connection is that the Veteran must first establish that he/she has the disability claimed. See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328 (1997) (indicating VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability); "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 claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A current disability means a disability shown by competent evidence to exist. Chelte v. Brown, 10 Vet. App. 268 (1997). The United States Court of Appeals for Veterans Claims (Court) has clarified 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 VA's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran is seeking service connection for a right knee disability. On his 2001 application form, he indicated that he injured his right knee in July 1981. The Veteran served active duty in the Army from July 1976 to July 2002. A July 1981 STR notes the Veteran's complaints of right knee pain after running; the Veteran was scheduled for physical therapy. An October 1981 STR notes his complaints of pain and giving out in the right knee for the past four months. The report concludes with an assessment of chondromalacia of the right knee. A November 1981 STR notes his ongoing complaints of knee pain. No subsequent treatment was indicated. Physical examinations, conducted in July 1988 and February 1994 were silent as to any right knee disability. The Veteran's undated retirement examination, which appears to have been conducted in November 2001 based upon the dates listed on related testing reports, was silent as to any diagnosis of a right knee disability. A medical history report, completed at that time, notes the Veteran's history of swelling in his fingers, shoulders, knees and back. The Veteran has indicated that he continued to have problems with his right knee after service. See March 2005 Board hearing transcript. However, post-service treatment records are silent as to any treatment for or diagnoses of a right knee disability. Specifically, a January 2002 VA examination report notes the Veteran's complaints of right knee pain. On examination, X-ray studies showed no abnormality of the right knee. The examiner did not note any diagnosis pertinent to the right knee. A December 2006 VA joints examination report notes the Veteran's claim that he injured his right knee in 1984 during a snowshoe exercise. He reported current complaints of right medial patellar pain, with no locking or swelling. He also indicated that his right knee sometimes feels unstable. Physical examination of the knees revealed a range of motion from 0 degrees extension to 125 degrees of flexion, bilaterally, without pain and without change on repetitive use testing. The report noted that there was no crepitus or tenderness in either knee, and that both knees were stable to varus and valgus stressing, and on Lachman and drawer testing. After reviewing the claims file, the VA examiner concluded with a finding of no current evidence of a right knee condition. The VA examiner further noted that since no current right knee disability was shown, an opinion regarding its etiology was not needed. As noted above, while the Veteran's STRs include complaints of and treatment for right knee pain in 1981, subsequent service treatment records, spanning two decades, were silent as to any ongoing treatment for a right knee disability. Subsequent physical examinations in 1988 and 1994 and the Veteran's retirement physical examination in 2001 all noted normal findings concerning the Veteran's right knee. Most importantly, no current diagnosis of a right knee disability has been shown in the Veteran's post-service treatment records, to include the December 2006 VA joints examination. In this regard, the Board acknowledges the Veteran's ongoing complaints of right knee pain. However, pain is not a compensable disability absent an underlying pathology. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). 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 factual issue. In this case, the criteria under Jandreau have not been met. Consideration has of course been given to the Veteran's personal assertion that he has a disability of the right knee. He is again more than competent to endorse symptoms such as pain. However, while 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, the process of diagnosing a disability of the knee (e.g., arthritis, bursitis, or tendonitis) falls outside the realm of common knowledge of a lay person. See Jandreau, supra. In fact, the 2006 VA examiner specifically stated that although the Veteran has complaints of right knee pain, he does not have a right knee disability. The statements of the VA examiner, a medical professional, are given more weight than those of the Veteran, a lay person. Based on this evidentiary posture, service connection cannot be awarded. In sum, the record does not show the Veteran has had a diagnosed right knee disability at any time during the period under review. McClain, 21 Vet. App. 319, 321. As the Veteran has not shown a current disability for which service connection can be granted, the claim must be denied. The Board has duly considered the benefit of the doubt doctrine. 38 U.S.C.A. § 5107; see also Gilbert, supra. However, the preponderance of the evidence is against the Veteran's claim. As such, that doctrine is not applicable in the instant appeal and his claim must be denied. ORDER Service connection for right knee disability is denied. REMAND The Veteran is seeking increased evaluations for his service-connected cervical spine degenerative joint disease, Wolff-Parkinson White disease, right shoulder disability and hemorrhoids. It is unfortunate that there is an additional delay; however, remand is required for compliance with VA's duty to assist the Veteran in substantiating his claims. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In its March 2013 Post-Remand Brief, the Veteran's representative argued that the VA examinations conducted to determine the severity of the disabilities on appeal are "too remote in time from which to evaluate the current severity of the Veteran's above noted disabilities." As the VA examinations at issue were conducted in December 2006, over six years ago, the Board finds merit in this position. 38 C.F.R. § 3.159(c)(4)(i); see Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Accordingly, the Board finds the Veteran should be afforded new VA examinations to document the current severity of these disabilities. See 38 C.F.R. § 3.159(c)(4). Prior to scheduling any examinations, the RO or the AMC should obtain and associate with the claims file all outstanding treatment records pertinent to the issues on appeal. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran identify, and then obtain, any updated treatment records relating to his cervical spine degenerative joint disease, Wolff-Parkinson White disease, right shoulder disability and hemorrhoids since March 2013. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims file. All attempts to procure records should be documented in the file. If the RO or the AMC cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 2. Schedule the Veteran for appropriate examinations to determine the current severity of the Veteran's service-connected cervical spine degenerative joint disease, Wolff-Parkinson White disease, right shoulder disability, and hemorrhoids. The claims files and any pertinent evidence in Virtual VA that is not contained in the claims file must be made available to and be reviewed by the examiners in conjunction with the examinations. Any indicated tests and studies should be performed, and the examination report must address all information necessary to appropriately rate each disability. In addition, the examiners should be directed to provide an opinion concerning the impact of the Veteran's service-connected disabilities on his ability to work. A complete rationale must be provided for all opinions expressed. 3. Notify the Veteran that it is his responsibility to report for any scheduled examination, and to cooperate in the development of his claims. The consequences for the failure to report for an examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained and placed in the claims file which shows that notice scheduling the examination was sent to the last known address and whether any notice that was sent was returned as undeliverable. 4. After completing the above, and any other development as may be indicated, re-adjudicate the issues on appeal, including consideration of all evidence received since the June 2012 supplemental statement of the case. If any benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a supplemental statement of the case and given the requisite opportunity to respond thereto. Thereafter, the case must be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matters 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 or by the Court 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). ______________________________________________ K. R. FLETCHER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs