Citation Nr: 1323709 Decision Date: 07/25/13 Archive Date: 08/06/13 DOCKET NO. 11-02 392 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for the residuals of a right knee injury. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Nigam, Counsel INTRODUCTION The Veteran served on active duty from September 1996 to May 2001. This matter comes before the Board of Veterans' Appeals (hereinafter "Board") on appeal from a December 2009 rating decision by the Department of Veterans Affairs (hereinafter "VA") Regional Office (hereinafter "RO") in Columbia, South Carolina, issued by the Detroit, Michigan RO. The Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge (hereinafter "VLJ") at the Detroit RO in June 2011. A transcript of this proceeding has been associated with the claims file. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the matter on appeal have been accomplished. 2. The Veteran does not have any current residuals of a right knee injury due to disease or injury from his active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for the residuals of a right knee injury have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code (hereinafter "38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations (hereinafter "38 C.F.R.") and the precedential rulings of the United States Court of Appeals for the Federal Circuit (hereinafter "Federal Circuit") (as noted by citations to "Fed. Cir.") and the United States Court of Appeals for Veterans Claims (hereinafter "Court") (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issues under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts. A Veteran bears the "'evidentiary burden' to establish all elements of a claim, including the nexus requirement." Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). The Board's duty is to first determine the probative value of all pertinent medical and lay evidence of record based on its credibility and competency, and then weigh the probative value of the evidence regarding all material elements of a claim. See 38 U.S.C.A. § 7104(d); Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); see also Layno v. Brown, 6 Vet. App. 465, 469 (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"). A "veteran is given the 'benefit of the doubt' 'regarding any issue material' to the veteran's claim 'when there is an approximate balance of positive and negative evidence.'" Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107(b)). Thus, if there is conflicting medical evidence, the Board may not ignore or disregard any medical professional's opinion, but may assign greater probative to one medical opinion over by providing an adequate statement of reasons or bases for doing so. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Willis v. Derwinski, 1 Vet. App. 66, 70 (1991). A medical opinion is most probative if it is factually accurate, fully articulated, and based on sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In making all determinations, the Board must also fully weigh the probative value of the lay evidence of record against the remaining evidence of record. See King v. Shinseki, No. 2011-7159 (Fed. Cir. Dec. 5, 2012). If credible, 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(a). Thus, a layperson is competent to report on the onset and continuity of his symptomatology. See Kahana, 24 Vet. App. at 438; Layno, 6 Vet. App. at 470 (a veteran is competent to report on that of which he or she has personal knowledge). Moreover, lay evidence must not be categorically dismissed as incompetent evidence of medical causation merely because it is lay evidence. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Rather, lay evidence may be competent and sufficient evidence of a diagnosis or nexus if (1) the particular condition at issue is the type of condition that is within the competence of a layperson, (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. See Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Kahana, 24 Vet. App. at 433, n.4. The Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person. See Jandreau, 492 F.3d 1367-77; see also Kahana, 24 Vet. App. at 438, J. Lance dissenting; Robinson v. Shinseki, 312 Fed. Appx. 336, 339 (Fed. Cir. 2009) (nonprecedential). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Duties to Notify and Assist The Veterans Claims Assistance Act (hereinafter "VCAA") describes VA's 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA has satisfied its duty to notify by issuing a pre-adjudication notice letter in October 2009. This letter advised the Veteran of what evidence was required to substantiate his claim for service connection, and of his and VA's respective duties for obtaining evidence. It also provided notice regarding the disability evaluation and effective date elements of a service connection claim. Dingess, 19 Vet. App. at 473. The claim was most recently readjudicated in the November 2010 statement of the case (hereinafter "SOC"). Accordingly, prejudicial error in the timing or content of VCAA notice has not been established and any error is not outcome determinative. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency). Further, if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome by the following: (1) based on the communications sent to the Veteran over the course of this appeal, he clearly has actual knowledge of the evidence he is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to him by VA, it is reasonable to expect that he 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). The duty to assist provisions of the VCAA have been met. The claims file contains the Veteran's lay statements and hearing testimony, in-service and post-service medical treatment records, and report of a VA examination dated in October 2009. As discussed in greater detail below, the VA examination was adequate because it was based on a thorough physical examination, description of the Veteran's pertinent medical history, complete review of the claims folder, and appropriate diagnostic tests, including X-ray studies. At the June 2011 hearing, the undersigned VLJ and representative for the Veteran outlined the issue on appeal and engaged in a colloquy as to substantiation of the claim. Overall, the hearing was legally sufficient and the duty to assist has been met, and there have been no allegations to the contrary. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); Bryant v. Shinseki, 23 Vet. App. 488 (2010). The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide the claims on appeal. He has been given ample opportunity to present evidence and argument in support of his claim. Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of the issue has been obtained and the case is ready for appellate review. The Board additionally finds that general due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012). The Merits of the Claim Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the disease or injury incurred or aggravated during service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). "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). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See 38 U.S.C.A. §§ 1110, 113; Degmetich v. Brown, 104 F. 3d 1328 (1997). The requirement of a "current disability" is satisfied if a disorder is diagnosed at the time a claim is filed or at any time during the pendency of the appeal; service connection may be awarded even though the disability resolves prior to adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Likewise, the Federal Circuit has also noted that two provisions of 38 C.F.R. Part 4, 38 C.F.R. §§ 4.40 and 4.45, refer to pain in connection with the assessment of the extent to which a veteran may be disabled, and, thus, pain is not wholly irrelevant to the assessment of a disability for which a veteran seeks compensation. See Sanchez- Benitez v. Principi, 259 F.3d 1356, 1361 (2001). However, the Federal Circuit also noted that in order for a Veteran to qualify for basic entitlement to compensation under 38 U.S.C.A. § 1110 or § 1131, the Veteran must prove existence of a disability, and one that has resulted from a disease or injury that occurred in the line of duty. Id. Hence, the mere fact of a veteran reporting subjective symptoms, whether pain or otherwise, does not necessarily warrant a finding that he has met the current disability due to disease or injury requirement. Rather, an underlying disease or injury is required, with current impairment of some sort. In the present case, the Board finds that the preponderance of the evidence reflects a lack of any underlying disease or injury related to the right knee at any time during the appeal period. The Board notes the service treatment records indicate the Veteran was treated for a right knee injury in December 1998 that was sustained while he was playing basketball on active duty. At the time of the injury, the Veteran was observed to have swelling, tenderness to palpation in the anterior, posterior and medial joint line, and medial joint pain on varus/valgus stress testing. The examination did not reveal instability, and there was negative anterior/posterior drawer testing, negative Lachman's testing and negative McMurry's testing. The Veteran was assessed with "rule out medial meniscus tear." He was prescribed crutches and ice, as well as pharmaceuticals. In January 1999, he was again treated for complaints of right knee pain for 3 and a half weeks. The Veteran described pain when he hyper-extended the knee and when it was flexed for a while. On physical examination he had full range of motion without swelling or erythema. There was no tenderness to palpation, and he was assessed with a healing strain and was prescribed a supportive cane. Notably, a VA treatment record, dated in November 2001, approximately 6 months after his separation from service, reveals the Veteran complained of occasional knee joint pain, but no weakness or limited movement was observed. He was assessed with arthralgia of the knees at that time. An April 2004 VA treatment record also reveals an assessment of bilateral knee arthralgia. In his July 2009 informal claim for service connection, the Veteran reported that he was injured while on active duty in Germany during physical training. He indicated that he had been treated at the post hospital at that time, and had been undergoing treatment at the Detroit, Michigan VA Medical Center (hereinafter "VAMC") since service. In October 2009, the Veteran underwent a VA joints examination, during which he complained of a painful right knee, mostly in front of the joint, with an intensity of 1 out of 10. The examiner noted that repetitive motion increased the pain without any additional loss of motion. The Veteran denied using any knee braces and there was no instability or swelling observed. The examiner noted the activities of daily living were not affected, the Veteran's work was not affected, there was no history of flare-ups, the Veteran was not taking any medications, and there was no history of surgery. The Veteran indicated that he injured his right knee in 1998 during physical training, and described a tendency for the knee to buckle thereafter. He reported that his knee was wrapped and crutches were provided, and that he was assigned to light duty for two weeks following his injury. He noted that since his in-service injury he has experienced occasional discomfort in the knee, but there was no other injury. On physical examination, the examiner observed the Veteran's right knee alignment was normal; there was no deformity or swelling; there was no effusion in the knee joint; the patellar position was normal; and apprehension test was negative. Also, there was no crepitation on movement noted; the joint line was nontender; the ligaments were stable; McMurray and drawer tests were negative; Lachman's test was negative; range of motion testing was 0 to 140 degrees, without any complaints of pain; and quadriceps muscle tone was characterized as "good." Diagnostic testing included an X-ray study of the right knee, which was normal. The examiner noted there was no evidence of patellofemoral malalignment. Notably, no MRI study was ordered at that time. The examiner opined that it is not at least as likely as not that the right knee disorder is due to or a result of military service. In rendering the opinion, the examiner noted that the December 1998 and January 1999 service treatment records were reviewed. The examiner explained that the Veteran did not clinically have any objective evidence of any residual of the knee injury, and there was no impairment of function. Also, the examiner noted that the X-rays were normal at that time; there was no additional limitation of motion due to pain, fatigue, weakness or lack of endurance on repetitive use. In his notice of disagreement (hereinafter "NOD") received in January 2010, and in his VA Form 9, Appeal to Board of Veterans' Appeals (hereinafter "Form 9"), received in January 2011, the Veteran argued that despite undergoing an X-ray study on the October 2009 VA joints examination, he should have also been afforded an MRI scan to rule out any soft tissue damage to his knee, including tendonitis or ligament deterioration. During his June 2011 hearing, the Veteran testified that he had not had a pre-service right knee injury, and described his in-service injury as a knee strain while exercising. He noted that since the moment of his injury in 1998, he experienced pain on and off that would occur if he was sitting down with his knee flexed for too long. He reported that he currently wore a sleeve on his right knee to keep it warm, but denied taking over-the-counter pain medications for his pain. He indicated that he experienced slight cramps in the knee under the knee cap, which occurred when he was sitting or driving in a car. However, the Veteran also denied undergoing any treatment for his right knee. He indicated that he self-treated by purchasing three to four knee "sleeves" to keep his knee stabilized, and noted that he was recently employed at a fitness center as a referee, and had been working at that job for a year. He denied having to miss any employment because of his right knee condition, and explained that he basically had to walk up and down the basketball court to referee the game, for which he wore the supportive sleeve. With regard to the VA examination report, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examination obtained in this case is adequate with regard to the issue decided herein. In this regard, the examination was predicated on a review of the claims folder and the relevant medical records contained therein; contain a description of the history of the disability at issue; and documented and considered the Veteran's complaints and symptoms. The examiner considered the available pertinent evidence of record, and provided a rationale for the opinion rendered, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). Examination reports are adequate when they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion. Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012). The Board is aware of the Veteran's assertion that the October 2009 VA examination was inadequate because he was not afforded an MRI scan, and acknowledges that where the record before the Board is inadequate to render a fully informed decision, a remand to the Agency of Original Jurisdiction (hereinafter "AOJ") is required in order to fulfill its statutory duty to assist that Veteran to develop the facts pertinent to the claim. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). However, the Board finds that in this case the VA examiner provided a comprehensive review of the Veteran's claimed right knee disorder, and that if in the examiner's judgment an MRI scan was not deemed necessary, then the Board may rely on the opinion as competent and adequate evidence as to the matter of the existence of a current disability. In this regard, absent a challenge to the expertise of an examiner, the Board may assume the competence of VA examiners. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007); see also Rizzo v. Shinseki, 580 F.3d 1288, 1291 (Fed. Cir. 2009) (finding that where a Veteran does not challenge a VA medical expert's competence or qualifications, VA need not affirmatively establish that expert's competency). Also, the Board is prohibited from substituting its own unsubstantiated medical opinions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Court has stated that the Board's task is to make findings based on the evidence of record-not to supply missing facts. Beaty v. Brown, 6 Vet. App. 532 (1994). Moreover, the Board finds this informed medical opinion to be persuasive and dispositive in this case. In comparing the Veteran's contentions to the VA examiner's conclusions, the VA examination report is simply based upon greater medical expertise. Although there is no categorical requirement of "'competent medical evidence ... [when] the determinative issue involves either medical etiology or a medical diagnosis,'" more than a mere assertion on the part of a claimant is required to establish either a current diagnosis or a nexus between a diagnosis and an event, such as an injury, in service." Davidson v. Shinseki, 581 F.3d at 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007)). "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, (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." Id. Further, if the disability is of the type for which lay evidence is competent, the Board must then weigh that evidence against other evidence of record in making its determination regarding the existence of service connection. Buchanan v. Nicholson, 451 F.3d 1331, 1334-37 (Fed.Cir.2006). In this case there simply is no lay or clinical evidence that the Veteran experiences more than pain as a residual of his in-service right knee injury. On physical examination, he had full range of motion, no instability, no tenderness or pain on range of motion, and no fatigability of the joint. He has testified that his employment, one that requires regular active movement of the knee, has not been affected by his right knee problems, and has testified that he has not actively sought any treatment for his right knee apart from purchasing sleeves to wear over the knee and keep it warm. Accordingly, the Board finds that the VA examination, which represents the most probative evidence on this question, establishes that the Veteran unfortunately does not have any residuals of a right knee injury, thus there can be no valid claim for this disorder. Brammer, 3 Vet. App. at 225. If he were to develop a disorder in the future, he may re-file for service connection without prejudice. "It is the responsibility of the Board . . . to assess the credibility and weight to be given to evidence." Hayes v. Brown, 5 Vet. App. 60, 69 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). With regard to the weight to assign to these medical opinions, the Court has held that "[t]he probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators . . ." Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). In conclusion, the Board finds after careful review of the entire record that the weight of the evidence is against the Veteran's claim of service connection for residuals of a right knee injury. In reaching this conclusion the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for the residuals of a right knee injury is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs