Citation Nr: 1325555 Decision Date: 08/13/13 Archive Date: 08/16/13 DOCKET NO. 10-37 822 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for a left knee disability. 2. Entitlement to service connection for neck disability, status post fusion of C5 through C7 vertebrae. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The veteran's active military service extended from December 1975 to December 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, which in part denied service connection for the disabilities claimed. In January 2011, the Veteran testified at a hearing at the RO before the undersigned sitting in Washington, DC. A transcript of this testimony is associated with the claims file. This appeal was processed in part using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. The issue involving service connection for a neck disability is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. Service treatment records reveal that the Veteran was treated for complaints of left knee pain twice during service. 2. Separation examination of the Veteran revealed his lower extremities were normal. 3. The credible evidence of record does not reveal that the Veteran has a current left knee disability. CONCLUSION OF LAW The criteria for service connection for a left knee disability are not met. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, 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). The 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 v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by a letter dated July 2008, which was prior to the December 2008 rating decision. This notification letter substantially complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence and the requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006). Moreover, the notice provided to the appellant over the course of the appeal provided all information necessary for a reasonable person to understand what evidence and/or information was necessary to substantiate his claims. The appellant has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); Sanders v. Nicholson, 487 F. 3d 881 (Fed. Cir. 2007). VA has obtained the Veteran's service treatment records, Social Security Records, VA treatment records, and private medical treatment records. VA has also assisted the veteran in obtaining evidence, afforded the veteran physical examinations, and afforded him the opportunity to provide testimony and written argument related to his claims. All known and available records relevant to the issues on appeal have been obtained and associated with the claims file; and the veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the veteran is not prejudiced by a decision on the claim at this time. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Arthritis may be presumed to have been incurred during active military service if it is manifest to a degree of 10 percent within the first year following active service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. VA regulations require that a diagnosis of arthritis be established by x-ray findings. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. When a chronic disease identity is established in service, then a showing of continuity after discharge is not required. Continuity of symptomatology is required only where the condition noted during service (or in a presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). The nexus between service and the current disability may be satisfied by medical or lay evidence of continuity of symptomatology and medical evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997). However, service connection on the basis of continuity of symptomatology can only be established for the chronic diseases as specified at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013) 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. Following the point at which it is determined that all relevant evidence has been obtained, it is the Board's principal responsibility to assess the credibility, and therefore the probative value of proffered evidence of record as a whole. Owens v. Brown, 7 Vet. App. 429, 433 (1995); see Elkins v. Gober, 229 F. 3d 1369 (Fed. Cir. 2000); Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir. 1997) (and cases cited therein); Guimond v. Brown, 6 Vet. App. 69, 72 (1993); Hensley v. Brown, 5 Vet. App. 155, 161 (1993). In determining whether documents submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995); see also Pond v. West, 12 Vet. App. 341, 345 (2000). The Veteran claims entitlement to service connection for a left knee disability. He claims that he injured his left knee during service and that he has had left knee pain ever since. He has made this assertion in testimony at an April 2010 hearing before a Decision Review officer and at a January 2011 hearing before the undersigned. The Veteran entered active duty in December 1975. A January 1976 service treatment record reveals that the Veteran sought treatment for complaints of bilateral knee pain. No specific injury was noted. No deformity was found and the Veteran had good range of motion of the knees. The diagnosis was mild joint strain and he was treated with ace bandage wraps, topical balm, and hot soaks. A June 1976 service treatment record reveals that the Veteran had complaints of left knee pain for approximately 3 weeks. Physical examination revealed no deformity, no effusion, and full range of flexion. He was treated with pain medication, whirl pool therapy, and an ace bandage wrap. In October 1979, a separation examination of the Veteran was conducted. Clinical evaluation of the Veteran's lower extremities was normal. No abnormality of the knees was noted by the examining physician. The Veteran testified that he had continuing symptoms of left knee pain from service until the present. He testified that he has been treated for left knee pain including with being prescribed prescription narcotics for his knee pain. The objective evidence of record does not support these assertions. The Board has reviewed all the evidence of record including large volumes of VA treatment records. None of these records show treatment for complaints of left knee pain. To the extent that pain medication is prescribed it is shown to be necessary to control the Veteran's complaints of pain related to his nonservice-connected degenerative disc disease of the lumbar spine and cervical spine. There is other evidence of record related to claims which are not on appeal which directly contradicts assertions made by the Veteran with respect to those claims. Accordingly, the Board finds the Veteran's credibility of complaints of, and treatment for left knee pain from service until the present to lack credibility. In August 2008, a VA Compensation and Pension examination of the Veteran was conducted. The examiner acknowledged the Veteran's treatment for knee pain during service. Physical examination of the left knee revealed that it was normal. There was no pain on palpation. He had full range of motion of the knee. His gait was normal. Testing failed to reveal any instability of the knee. On repetitive motion testing he reported subjective complaints of increasing left knee pain and fatigue. X-ray examination of the left knee revealed normal findings. The diagnosis was "pain in left knee - normal x-ray." Simply put, there is no credible evidence of a current left knee disability. Review of three volumes of evidence fails to show any complaints of, treatment for, or diagnosis of, any left knee disability at any point after 1976. In the absence of proof of present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran's reports of left knee pain are insufficient to establish the presence of a current left knee disability. 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. West, 13 Vet. App. 282, 285 (1999). The preponderance of the evidence is against the claim for service connection for a left knee disability; there is no doubt to be resolved; and service connection is not warranted. ORDER Service connection for a left knee disability is denied. REMAND The Veteran claims entitlement to service connection for a neck disability. Private medical records dated in 2008 reveal that the Veteran has a diagnosis of degenerative disc disease of the cervical spine and that he required surgical fusion of several cervical vertebrae. Despite a lack of documentation in the service treatment records, the Veteran claims he injured his neck during service. The Veteran has not been accorded a Compensation and Pension examination with respect to this claim. This should be done. When the medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991) and Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). The Veteran has also made vague assertions that his claimed neck disability is the result of exposure to toxins in the water while he was stationed at Camp Lejeune, North Carolina. Additional development with respect to these assertions may be necessary. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be accorded a VA examination for cervical spine disabilities. The report of examination should include a detailed account of all manifestations of disabilities of the cervical spine found to be present. All necessary tests should be conducted. The examiner should review the results of any testing prior to completion of the report. The examiner is informed that there is evidence that the Veteran was involved in an accident in July 2007. The examiner should elicit a full report of history of neck symptoms from the Veteran. The examiner should indicate if it is at least as likely as not that any current cervical spine disability is related to the Veteran's military service or any reported injury during service. The claims file and all records in Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. The examiner should provide a complete rationale for all conclusions reached. 2. The Veteran must be notified that it is his responsibility to report for the scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA 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 the scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice sent was returned as undeliverable. 3. After the requested examination has been completed, review the examination report to ensure that it is in complete compliance with the directives of this remand. The examination report must be returned to the examiner if it is deficient in any manner, and the RO must implement corrective procedures at once. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. Review the claims file and determine if additional development or adjudication action is warranted in light of the Veteran's assertions of exposure to toxins in the water while he was stationed at Camp Lejeune, North Carolina. See, VA Fast Letter 11-03. 5. Once the above actions have been completed, readjudicate the Veteran's claim on appeal, taking into consideration any newly acquired evidence. If any benefit remains denied, a supplemental statement of the case must be provided to the Veteran and he should have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims 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). ______________________________________________ L. M. Barnard Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs