Citation Nr: 1325408 Decision Date: 08/12/13 Archive Date: 08/16/13 DOCKET NO. 11-12 462 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD N. Sonia, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1965 to April 1967. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Board notes that in his May 2011 VA Form 9 substantive appeal, the Veteran indicated that he wanted to "file an appeal" for his left wrist fracture. However, the Veteran had already filed a timely Notice of Disagreement (NOD) for the left wrist in February 2010 following the January 2010 rating decision. An appeal consists of a timely filed NOD in writing, and, after a Statement of the Case (SOC) has been furnished, a timely filed Substantive Appeal. See 38 C.F.R. § 20.200. Here, the Veteran referenced his left wrist condition in the VA Form 9 in May 2011, before the SOC was issued. After the SOC was issued in August 2011, the Veteran did not file a VA Form 9 Substantive Appeal for the left wrist. Therefore, the January 2010 rating decision, which denied entitlement to service connection for the left wrist, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103. In addition, the Veteran requested a live videoconference hearing before a Veterans Law Judge of the Board in his May 2011 VA Form 9. The Veteran was scheduled for a videoconference hearing on December 13, 2012. However, a request for a hearing may be withdrawn by an appellant at any time before the date of the hearing. 38 C.F.R. § 20.702(e). Here, the Veteran withdrew his request for a hearing on December 13, 2012, and the claims reviewer signed the request on the same date. The Board finds that the Veteran has withdrawn his request for a hearing and will therefore proceed to adjudicate his appeal. Id. FINDINGS OF FACT 1. The Veteran does not have a back disability related to his active service. 2. The Veteran does not have a left knee disability related to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. The criteria for service connection for a left knee disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a)(2012). "To establish a right to compensation for a present disability, 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'-the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In this case, the evidence does not show the Veteran has ever been diagnosed with a disease listed as a "chronic disease" under 38 C.F.R. § 3.309(a) for his claims of service connection for a back disability or a left knee disability; thus, 38 C.F.R. § 3.303(b) does not apply in this case. The Veteran contends that service connection is warranted for a back disability and left knee disability due to in-service injuries sustained as a result of a helicopter crash in 1967. In a February 2009 statement in support of his claim, the Veteran stated, "I have lived with various pains since the crash - now that I am older, the pains are harder to live with at times." As an initial matter, in February 2009, the Board sent a letter to the Veteran, in compliance with the Veterans Claims Assistance Act of 2000 (VCAA), that informed the Veteran that he must have evidence of a current disability for his claimed disabilities. The Veteran has not presented any competent and probative evidence nor has he provided any information as to where VA could obtain such evidence in this regard. The Board notes that the Veteran is competent to describe symptoms he experienced, whether in service or during the years since discharge, based on his personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470 (1994). 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. Sanchez-Benitez v. W., 13 Vet. App. 282, 285 (1999) vacated in part, appeal dismissed in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). VA needs to identify a "disability", not symptoms of a disability. There is simply no objective evidence establishing a back or knee disability in the present appeal. Accordingly, the service connection criteria requiring the presence of a current "disability" have not bee met and service connection cannot be granted for symptoms of a disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Even if the Board were to assume the Veteran's pain is related to an identifiable underlying condition and that the Veteran was indeed injured in a helicopter crash in 1967, the preponderance of the evidence is still against a finding that any current symptoms experienced by the Veteran, over fifty years since service, are related to an in-service injury or event. Service treatment records contain no complaint of or treatment for any back condition, and they contain only one treatment note in January 1967 regarding the Veteran's knee. The treatment record indicates that the Veteran hurt his knee playing football and was given an ace bandage, but the medical examiner did not note which knee was affected. There was no follow up treatment regarding the incident. Moreover, there was no notation of any left knee injury or treatment in the remaining service treatment records. The service treatment records therefore provide factual evidence against the Veteran's claim. Again, even if the Board assumes that the accident in question occurred (the Board has not reason to doubt that it did) subsequently, on the April 1967 report of medical examination, the medical professional marked the Veteran's lower extremities as well as the spine, other musculoskeletal as "normal." In addition, on the April 1967 report of medical history, the Veteran denied swollen or painful joints; bone, joint or other deformity; and "trick" or locked knee. The Board emphasizes that the Veteran has asserted that the helicopter crash occurred in February 1967. Yet, just two months later, the Veteran did not identify any problems with his back or left knee, despite the fact that he identified other physical ailments, such as cramps in his legs, which provides additional factual evidence against his own claim by the Veteran himself. Moreover, on the April 1967 report of medical history, the Veteran denied "trick" or locked knee," but previously affirmed such a history on the May 1965 report of medical history. The Veteran also indicated in his June 2009 NOD that he received treatment for numerous injuries in a field hospital tent following the helicopter crash, but on the April 1967 report, the Veteran denied any hospitalizations. Such inconsistencies in the record weigh against the Veteran's credibility as to the assertion that he has had a back and left knee disability since service. See Madden v. Gober, 125 F.3d 1477, 1481 (1997); Caluza v. Brown, 7 Vet. App. 498, 512 (1995). For the reasons and bases discussed above, the Board finds that a preponderance of the evidence is against the claim for service connection for a back disability and a left knee disability, and this claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). Duty to Notify and Assist The VCAA and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 2107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). As discussed below, VA has fulfilled its duties under the VCAA. When VA receives 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). 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). 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). For service-connection claims, the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of the 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 (2006). In the present appeal, the VCAA duty to notify was satisfied by a February 2009 letter that informed the Veteran of what evidence was required to substantiate the claim, and of his and VA's respective duties for obtaining evidence. The letter also included the type of evidence necessary to establish a disability rating and effective date. Regarding the duty to assist, VA must make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The duty to assist also includes providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). VA has not provided a medical opinion with regard to this claim. However, as explained in further detail above, there is no competent and credible evidence that the Veteran had a back or knee disability during service, or even over fifty years after his discharge. Moreover, the Board recognizes that the third prong of McLendon, which requires that the evidence of record "indicates" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. However, in the present appeal, despite the February 2009 VCAA notice, the Veteran has not provided nor does the evidence of record indicate that the symptoms of pain experienced by the Veteran are at all associated with the in-service helicopter crash or the football injury. Indeed, the Veteran responded to the February 2009 VCAA notice by completing VA Form 21-4142, which provided authorization for VA to obtain records, but he only listed treatment at the helicopter crash site and facilities in Cam Ranh Bay, Vietnam. In short, there is simply no objective evidence of a current disability that is associated with an in-service injury or event. Hence, under McLendon, the Board is not required to have the Veteran undergo a VA compensation examination for a medical nexus opinion. Id. Therefore, VA has fulfilled its duty to assist the Veteran in the development of the claim. VA has made reasonable efforts to identify and obtain relevant records in support of the Veteran's claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, the evidence of record includes the Veteran's service treatment records and statements in support of the claim by the Veteran and his representative. The Veteran has not identified, and the record does not otherwise indicate, any existing, pertinent evidence that has not been obtained. The record also presents no basis for further development to create any additional evidence to be considered in connection with the matters currently under consideration. Hence, no further notice or assistance to the Veteran is required for fair adjudication of the Veteran's claim. 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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Service connection for a back disability is denied. Service connection for a left knee disability is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs