Citation Nr: 1326422	
Decision Date: 08/20/13    Archive Date: 08/26/13

DOCKET NO.  10-05 791	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

Entitlement to service connection for a bilateral knee disability.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

James A. DeFrank, Counsel


INTRODUCTION

The Veteran served on active duty from July 1968 to July 1971 and from October 1972 to October 1989.

This case comes before the Board of Veterans' Appeals (Board) on appeal of a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida which, in part, denied service connection for a bilateral knee disability.

In his substantive appeal, the Veteran requested a hearing before a Veterans Law Judge (VLJ) of the Board at the RO (Travel Board hearing).  However, in an October 2011 letter, he requested that his hearing request be withdrawn.  


FINDING OF FACT

The Veteran does not currently have a bilateral knee disability.


CONCLUSION OF LAW

A bilateral knee disability was not incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1101, 5107 (West 2002); 38 C.F.R. § 3.303 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159).  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 evidence or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In accordance with 38 C.F.R. § 3.159(b)(1), proper notice 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.  Notice should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal.  A Supplemental Statement of the Case, when issued following a notice letter, satisfies the due process and notification requirements for an adjudicative decision for these purposes.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). 

The RO provided notice to the Veteran in a June 2008 letter, prior to the date of the issuance of the appealed January 2009 rating decision.  The June 2008 letter explained what information and evidence was needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA.  The letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal.  Pertinent medical evidence associated with the claims file consists of service, VA treatment records and the report of a December 2008 VA examination.  The VA examination report reflects that the VA examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate evaluation of the Veteran, and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record.  As such, the Board finds that the December 2008VA examination report is sufficient upon which to base a decision with regard to this claim.  See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 

Also of record and considered in connection with the appeal are the various written statements provided by the Veteran and by the Veteran's representative on his behalf.  The Board finds that no additional RO action to further develop the record on the claim is warranted.

Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication.

Laws and Regulations

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).

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."  Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167   (Fed. Cir. 2004).

In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits.  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."  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007).  In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

Once evidence is determined to be competent, the Board must determine whether such evidence is also credible.  See Layno, supra (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"). 

The Board has reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 

Factual Background and Analysis

The Veteran contends that he has a current bilateral knee disability that is related to his service.

The Veteran's service treatment records demonstrate that in January 1989 he presented with complaints of bilateral knee pain when running.  He was assessed with chondromalacia. In February 1989, the Veteran presented with complaints of knee pain for the past 6 months.  In May 1989, the Veteran presented with complaints of bilateral knee pain when running.  He was assessed with chondromalacia.  In July 1989, the Veteran presented with pain in his knees for the past 1 1/2 years.  He was assessed with chondromalacia.  An August 1989 physical profile noted bilateral knee pain.

The Veteran's Report of Medical History and Report of Medical Examination for his retirement in September 1989 were negative for reports of knee pain or diagnoses.

The Veteran underwent a VA examination in December 2010.  He reported that he injured both of his knees in service due to the physical requirements of military service.  He denied direct trauma to his right or left knee.  He indicated that a year after his discharge from the military, he worked as a printing press operator but stopped due to his inability to stand for long periods of time.  Currently, he experienced pain in both of his knees.  The examiner noted the Veteran's in-service complaints and treatment for bilateral knee pain which included him being placed on profile until his discharge.  The examiner also noted that medical exams in 1975, 1979, 1982 and his separation examination in September 1989 were silent for knee conditions.  On examination, there was no deformity, no giving way, no weakness and no incoordination.  He did have pain, stiffness and decreased speed of joint motion.  There were no episodes of dislocation or sublaxation, no locking episodes, no effusion, no symptoms of inflammation and no flare-ups of joint disease.  There were no constitutional symptoms of arthritis.  He reported that he could only walk 2 blocks before having to take a rest because of his knees.  X-rays of the right and left knee conducted in April 2008 were normal.  The diagnosis was "subjective statement by veteran of right and left knee arthralgia."  However, the examiner clarified that "this is not a diagnosis."

Under the circumstances of this case, the Board concludes that service connection for a back disability is not warranted as the Veteran has not been shown to have a current bilateral knee disability.

The Veteran's service treatment records clearly show that he had multiple complaints of knee pain in service.  However, these complaints appeared to be acute as the Veteran received no additional treatment in service and there were no diagnoses or complaints in service related to his bilateral knee complaints since that time.  Significantly, the Veteran's September 1989 separation examination was negative for bilateral knee complaints or diagnoses.  Furthermore, a review of the record is negative for any current diagnosed bilateral knee disability. 

As noted above, the VA treatment records have demonstrated that the Veteran has been assessed with bilateral knee pain.  However, the Board notes that mere 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.  See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356  (Fed. Cir. 2001).

The Board acknowledges that the December 2010 VA examiner noted that the Veteran reported subjective symptoms of bilateral knee arthralgia.  Arthralgia is defined as "pain in a joint." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY, 152 (31st ed. 2007).  In light of such definition along with the examiner's statement that arthralgia is not a diagnosis, the Board finds that the report of bilateral knee arthralgia is not competent evidence of a bilateral knee disability.  See Sanchez-Benitez, supra.

The Board observes that the Veteran's post service treatment records document that the Veteran has bilateral knee pain, but does not otherwise provide a diagnosis of a bilateral knee disorder.  Accordingly, the medical evidence of record does not support a current diagnosis of the claimed bilateral knee disability. 

Hence, whereas here, the competent evidence establishes that the Veteran does not have the disability for which service connection is sought, there can be no valid claim for service connection.  See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  In the instant appeal, the claim for service connection for a bilateral knee disability must be denied because the first criterion for the grant of service connection-competent evidence of the disability for which service connection is sought-is not met.

The Board notes the Veteran's contentions regarding the nature and etiology of his claimed bilateral knee disability, as well as the evidence submitted by him and his representative contending that his claimed bilateral knee disability is related to service.

To the extent that the Veteran himself contends that a medical relationship exists between his current claimed disability and service, the Board acknowledges that the Veteran is competent to testify as to his observations.  Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau).  In the instant case, however, the Board finds that a bilateral knee disability is not a disability subject to lay diagnosis.  While some symptoms of the disorder may be reported by a layperson, the Veteran and his representative do not have the medical expertise to provide an opinion regarding its existence or etiology.  Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue.  See Jones v. West, 12 Vet. App. 460, 465 (1999).  

Thus, the Veteran and his representative's assertions that there is a relationship between his claimed bilateral knee disability and his service are not sufficient in this instance and are outweighed by other probative evidence of record.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  


ORDER

Entitlement to service connection for a bilateral knee disability is denied.


____________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs