Citation Nr: 1327466 Decision Date: 08/27/13 Archive Date: 09/05/13 DOCKET NO. 06-05 113 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a right knee disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran had active duty service in the United States Army from February 1968 to January 1970, and from February 2003 to February 2004, with service in the Alabama Army National Guard, beginning in August 1981, with periods of active duty for training (ACTDUTRA) and inactive duty for training (INACTDUTRA) in between the two aforementioned periods of active service. This matter comes before the Board of Veterans' Appeals (Board) from a February 2005 rating decision of the above of the Regional Office (RO) of the Department of Veterans Affairs (VA) which denied service connection for an injury to the right knee. In December 2009, and April 2013, the Board remanded the issue for additional development. In March 2009, a Decision Review Officer (DRO) hearing was conducted regarding this matter. A transcript of this hearing has been associated with the claims folder. FINDING OF FACT The Veteran does not have a right knee disability that was caused or aggravated by his service, or by a service-connected disability. CONCLUSION OF LAW A right knee disability is not related to military service, or to a service-connected disability. 38 U.S.C.A. §§ 101, 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. § 3.310 (2006); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012); Allen v. Brown, 7 Vet. App. 439 (1995). REASONS AND BASES FOR FINDING AND CONCLUSION I. Service Connection The Veteran contends that he has a right knee disability due to his service. During his hearing, held in March 2009, when asked whether he had ever injured his right knee while on active duty, or on "weekend duty," the transcripts indicates that he responded, "A lot of times active on active duty during the weekends (inaudible) some kind of way. And we'd get over there and hold it (inaudible) and it would stop hurting and (inaudible)." The Veteran further testified that he never lost any time for weekend drills or summer training, stating, "No, I tried to make it." He stated that he was not sure whether he had ever been put on light duty during weekend training. The Veteran has also argued that his right knee disorder was either caused or aggravated by his service-connected left knee disability. In December 2003, the Veteran filed his claim. In February 2005, the RO denied the claim. The Veteran has appealed. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Service connection may also be granted for arthritis, when it is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. Feb. 21, 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.303(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). A grant of service connection under 38 C.F.R. § 3.303(b) does not require proof of the nexus element; it is presumed. Id. A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. Additionally, when aggravation of a Veteran's nonservice-connected condition is proximately due to or the result of a service-connected condition, the Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). VA amended its regulation pertaining to secondary service connection, effective from October 10, 2006. See 71 Fed. Reg. 52,744 (2006) (codified at 38 C.F.R. § 3.310). The new regulation appears to place additional evidentiary burdens on claimants seeking service connection based on aggravation; specifically, in terms of establishing a baseline level of disability for the non-service-connected condition prior to the aggravation. Because the new law appears more restrictive than the old, and because the appellant's claim was pending when the new provisions were promulgated, the Board will consider this appeal under the law in effect prior to October 10, 2006. See, e.g., Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (new regulations cannot be applied to pending claims if they have impermissibly retroactive effects). Service connection is currently in effect for a left knee disability, a lumbar spine disability, bilateral tinnitus, and bilateral hearing loss. The term "veteran" is defined in 38 U.S.C.A. § 101(2) (West 2002) as "a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable." The term "active military, naval, or air service" includes active duty, and "any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty." 38 U.S.C.A. § 101(24) (West 2002); 38 C.F.R. § 3.6(a) (2012); see Biggins v. Derwinski, 1 Vet. App. 474, 477-478 (1991). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated while performing ACDUTRA or injury incurred or aggravated by inactive duty training (INACDUTRA). 38 U.S.C.A. §§ 101(24) , 106, 1110 (West 2002 & Supp. 2012). Under 38 U.S.C.A. § 101(22)(a) and (c) ACDUTRA means, in pertinent part, full-time duty in the Armed Forces performed by Reserves for training and full-time duty as members of the Army National Guard or Air National Guard of any State. A service connection claim based on a period of ACDUTRA must be based on a showing that a disease or injury was incurred or aggravated in the line of duty. 38 U.S.C.A. § 101(24). In the absence of such evidence, the period of ACDUTRA would not qualify as "active military, naval, or air service" and the claimant would not achieve veteran status for purposes of that claim. See 38 U.S.C.A. § 101(2)-(24); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998). The Veteran's service treatment reports for his first period of active duty, as well as his subsequent service with the National Guard, do not contain any relevant findings. This evidence includes his 1969 separation examination report, and a number of National Guard examination reports (dated between 1981 and 1999) which show that his lower extremities were repeatedly clinically evaluated as normal, and a number of associated "reports of medical history" which show that the Veteran denied a history of a "'trick' or locked knee." Private treatment reports, dated between the Veteran's first and second periods of active duty, show that the Veteran underwent a left knee arthroscopy with partial medial meniscectomy and partial lateral meniscectomy in November 1993. Other private treatment reports show that he complained of bilateral knee pain and stiffness on one occasion, in September 1997. At that time, he denied a history of trauma. There was no relevant diagnosis. The Veteran's service treatment records for his second period of active duty include a June 2003 examination report, which shows that his lower extremities were clinically evaluated as normal. In an associated "report of medical history," the Veteran indicated that he had a history of knee trouble; there is a notation of a history of left knee surgery for ligament repair and arthroscopy in the 1990s, and a 1969 injury. A private treatment report, dated in July 2003 (during the Veteran's second period of active duty) notes a history of arthritis of the knees. A November 2003 Medical Evaluation Board report shows that the Veteran was referred to a physical evaluation board based on bilateral carpal tunnel syndrome, and cervical degenerative disc disease. A separation examination report is not of record. The post-active-duty medical evidence consists of VA and non-VA reports, dated between 2004 and 2013. This evidence includes a VA joints examination report, dated November 1, 2004, which shows that the examiner indicated that the Veteran's claims file had been reviewed. The report shows that the Veteran denied having any problems with his right knee. The impressions included a notation that a right knee examination was within normal limits. A VA spine examination report, dated in November 19, 2004, shows that the examiner indicated that the Veteran's claims file had been reviewed. The report shows that the Veteran complained of bilateral knee pain, worse on the left, and swelling. The impressions note: "Bilateral knee pain. X-rays reported as minimal atherosclerosis." An associated X-ray report is not of record. VA progress notes show that in March 2006, the Veteran complained of diffuse arthralgias, in areas that included the knees. A December 2008 report notes bilateral DJD of the knees, by X-ray. The report indicates that the results were compared to X-rays taken in 2004. The impression was, "mild to moderate bilateral osteoarthritis of the knees with atheroscleorisis of the regional arteries, unchanged from 2004." A December 2009 VA report also notes X-ray evidence of bilateral DJD of the knees. Between 2009 and 2011, the Veteran received a number of treatments for knee symptoms, to include several injections with Synvisc. A VA examination report, dated in May 2010, shows that the examiner stated that the Veteran's C-file had been reviewed. The Veteran reported that he began having right knee pain shortly after his 1993 left knee injury. The report notes a history of bilateral osteoarthritis of the knees. The diagnoses included bilateral osteoarthritis of the knees. The examiner noted the Veteran's history of a 1993 left knee injury with surgery, and stated that pain and stiffness in the bilateral knees was "well-documented dating back to 1997." The examiner further stated that the Veteran had a bilateral knee condition that pre-existed active duty service 2003-2004, and that it was "not aggravated while in medical hold for preexisting conditions." A VA Disability Benefits Questionnaire (DBQ), dated in February 2012, shows that the examiner, E.V., M.D., stated that the Veteran's C-file had been reviewed. The Veteran was noted to have claimed that his right knee pain began shortly after his 1993 left knee injury. His medical history was noted to include complaints of knee pain in August 2003 "while on medical hold," a November 2003 consultation for DJD (degenerative joint disease), with renewal of Celebrex, and bilateral steroid injections in December 2009, and between February and March of 2010. The examiner noted that service treatment records are silent as to a right knee condition during the Veteran's first period of active duty, and during INACDUTRA, and that he was diagnosed with right knee DJD during his second period of active duty. The examiner concluded that the preponderance of medical evidence does not support contralateral joint DJD in the etiology or proximate cause of joint DJD/osteoarthritis. She explained that during the stance phase of walking, an individual places no more weight on a knee regardless of whether the contralateral (opposite) knee is normal or painful, instead the stance phase is shortened in the painful knee and prolonged in the painless knee, this does not create injury to the painless or contralateral knee. In April 2013, the Board remanded the claim. The Board essentially noted that both the May 2010 and February 2012 VA examination report/DBQ appeared to have been based on inaccurate medical histories, to the extent that they indicated that the Veteran had a right knee disorder prior to his second period of active duty (May 2010 report), and that the Veteran was diagnosed with right knee DJD during his second period of active duty (February 2012 DBQ). The Board therefore requested that a supplemental opinion be obtained from the VA examiner who performed the Veteran's February 2012 examination (Dr. V). In May 2013, a supplemental opinion was obtained from Dr. V. In that opinion, Dr. V stated that the Veteran's claims file had been reviewed. The Veteran's medical history was noted to show the following: a November 1969 separation examination report was negative for a right knee condition. The Veteran has claimed that his right knee pain began shortly after his 1993 left knee injury, however, periodic physical examination (i.e., from National Guard duty) showed no complaints of right knee pain. An August 2003 report while on medical hold made mention of left knee pain but there was no mention of the right knee. A September 2003 Medical Board examination report showed that the Veteran mentioned that the knee was giving him trouble, but there was no mention of which knee he was referring to. A November 2004 VA examination report showed a normal right knee, and the Veteran denied any problems with the right knee. The Veteran's active duty time, between 2003 and 2004, was spent on medical hold at Ft. Benning for a preexisting condition. The onset of right knee pain began during the time period 2005-2006, as noted in January 2010 VA orthopedic consultation report. A March 2006 VA report notes complaints of knee arthralgias. The May 2010 VA examination report notes a history of bilateral osteoarthritis of the knees in August 2009. Dr. V concluded., "After carefully reviewing the VA exams in 2004, 2010, and 2012, it is my opinion that the current right knee DJD less likely than not had its onset during the Veteran's first and second active duty services as well as INACDUTRA." With regard to the question of whether the onset of a right knee condition preexisted active service in 2003-2004, Dr. V stated, "Review of periodic physical exam prior to 2003-2004 active service showed no complaints of knee pain. Physical exam while on medical hold in 8/26/2003, makes mention of left knee pain only[,] none referable to the right knee." Dr. V further stated: Onset of right knee pain was more likely after service, around 2005-2006, as stated in the VA orth consult dated 1/4/2010, therefore, the consults back in 2003 referred to left knee DJD only. Likewise during the VAE (VA examination) in 2004, [the] Veteran denied problems with the right knee which was confirmed by a normal right knee exam. Finally, with regard to the possibility that a right knee disorder has been caused or aggravated by the Veteran's service-connected left knee disability, Dr. V concluded: Causal relationship with SC (service-connected) left knee was unlikely, being, that the preponderance of medical evidence does not support contralateral joint DJD in the etiology or proximate cause of joint DJD osteoarthritis. Furthermore, during the stance phase of walking, an individual places no more weight on a knee regardless of whether the contralateral (opposite) knee is normal or painful; instated the stance phase is shortened in the painful knee and prolonged in the painless knee - this does not create injury to the painless or contralateral knee. Osteoarthritis/DJD results from a complex interplay of multiple factors, including age, joint integrity, genetics, local inflammation, mechanical forces, and cellular and biochemical processes. For the majority of patients, osteoarthritis is linked to one or more factors, such as aging, occupation, trauma, and repetitive, small insults over time. Veteran was 60 years old when he became symptomatic of his right knee (based on orth consult in 1/4/2010). As an initial matter, the Board finds that the Veteran is not a credible historian. During his examination on November 1, 2004, he denied having any problems with his right knee. The impressions included a notation that a right knee examination was within normal limits. However, just 18 days later, on November 19, 2004, during a VA spine examination, the Veteran asserted that he had bilateral knee pain, and swelling. Although he filed his claim in December 2003, over six years later, in May 2010, for the first time, he asserted that he began having right knee symptoms shortly after his 1993 left knee injury. Shaw v. Principi, 3 Vet. App. 365 (1992) (a veteran's delay in asserting a claim can constitute negative evidence that weighs against the claim). The medical evidence, however, shows that apart from a single complaint of bilateral knee symptoms in 1997 (for which there was no diagnosis) he repeatedly denied having right knee symptoms in reports dated prior to 2004. In this regard, three National Guard examination reports, and the associated "reports of medical history," dated after his 1993 left knee injury, show that he denied having a history of knee problems, and that his lower extremities were clinically evaluated as normal. See National Guard examination reports, dated in 1996, and 1999 (two reports). A January 2010 VA report shows that the Veteran complained of right knee pain for the past four to five years. In summary, the Veteran's assertions as to the onset of his right knee symptoms are shown to have been inconsistent and contradicted by the medical evidence. The Board therefore finds that he is not a credible historian. See Wilson v. Derwinski, 2 Vet. App. 16, 19-20 (1991); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (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). With regard to two other initial matters, first, the Veteran's testimony could be read to indicate that he argues that he developed a right knee disability during a period of ACDUTRA, or INACDUTRA. However, the Veteran has not asserted that any specific injury or event occurred during ACDUTRA, or INACDUTRA, which caused his right knee disorder. There are no service treatment records, or line of duty reports, dated during such service upon which a grant of service connection may be based. The Board will therefore limit the remainder of its analysis to service connection based on the Veteran's two periods of active duty service. Second, to the extent that the May 2010 VA examiner indicated that the Veteran had a right knee disorder preexisting his second period of active duty, the Board finds that a preexisting right knee disorder is not shown. There is a single complaint of bilateral knee symptoms in 1997, with no diagnosis. There is also a July 2003 notation in a private medical report from Dr. D.G. of a history of arthritis of the knees. However, this report is afforded no probative value, as it is "by history" only, and as there are no X-ray reports of record at that time to show the existence of right knee arthritis. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (noting that X-ray studies and other specific findings are needed to properly assess and diagnose arthritis). There is no probative medical evidence to show that the Veteran had a right knee disorder prior to his second period of active duty. An entrance examination report for the second period of active duty is not of record. In summary, a right knee disorder is not shown to have been "noted" upon entrance into service, the presumption of soundness therefore applies, and the claims file does not include "clear and unmistakable" evidence of a preexisting right knee disorder. Given the foregoing, the laws and regulations pertaining to the possibility of aggravation of a pre-existing disability need not be discussed. See Crowe v. Brown, 7 Vet. App. 238 (1994); VAOPGCPREC 3-2003, 69 Fed. Reg. 25178 (2004). The Board finds that the claim must be denied. The Veteran was not treated for right knee symptoms during either period of active duty service, nor was he found to have a right knee disorder during those periods of service. Although the Veteran was noted to have knee pain or arthralgia in 2004 and 2006, VA generally does not grant service connection for symptoms which have not been associated with trauma or a disease process. See Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). A right knee disorder is not shown prior to 2008. See December 2008 VA X-ray report. Therefore, the Veteran is not shown to have the claimed disability during service, and thus, a chronic disease is not shown. See 38 C.F.R. § 3.309(b). In addition, there is no competent medical evidence to show that the Veteran's right knee disorder is related to his service, or to a service-connected disability. In this regard, the only competent and probative opinion is the May 2013 VA opinion, and this opinion weighs against the claim on both a direct and secondary basis. This opinion is considered to be highly probative evidence against the claim, as it is shown to have been based on a review of the Veteran's medical records, and it is accompanied by a sufficient rationale. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion); Neives-Rodriguez v. Peake, 22 Vet. App. 295 (2008). To the extent that the February 2012 VA DBQ notes that right knee DJD was diagnosed during the Veteran's second period of active duty, as previously discussed, this statement is shown to be erroneous, and it is afforded no probative value. Accordingly, the claim must be denied. The evidence is also insufficient to show that right knee arthritis was manifest to a compensable degree within one year of separation from service. In this regard, the November 2004 VA spine examination report notes, "X-rays reported as minimal atherosclerosis." Atherosclerosis is not arthritis. Atherosclerosis is "an extremely common form of arteriosclerosis, which is a thickening of an arterial wall." Zimmerman v. Principi, 4 Vet. App. 1 (1992). Therefore, service connection for right knee arthritis on a presumptive basis is not warranted. See 38 C.F.R. §§ 3.307, 3.3.09. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and that the claim must be denied. Although 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, whether or not the Veteran has a right knee disorder that has been caused by service, or caused or aggravated by a service-connected disability, this falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, the Veteran's service treatment reports and post-service medical records have been discussed. The Board has determined that service connection for a right knee disorder is not warranted. Etiological opinions have been obtained which weigh against the claim on both a direct and secondary basis. Given the foregoing, the Board finds that the service treatment reports, and the post-service medical evidence, outweigh the Veteran's contentions. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and that the claim must be denied. The Board has considered the applicability of "benefit of the doubt" doctrine, however, the record does not demonstrate an approximate balance of positive and negative evidence as to warrant the resolution of these matters on that basis. 38 U.S.C.A. § 5107(b). II. Veterans Claims Assistance Act of 2000 (VCAA) The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The notification obligation in this case was accomplished by way of a letter from the RO to the Veteran, dated in November 2007. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). While complete VCAA notice was provided after the initial adjudication of the claim, this timing deficiency was remedied by the issuance of VCAA notice followed by readjudication of the claim. Mayfield. The claim was readjudicated on several occasions, to include a June 2013 supplemental statement of the case (SSOC). See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification letter followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). Therefore, any timing deficiency has been remedied. The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. It appears that all known and available service treatment reports, and post-service records relevant to the issue on appeal have been obtained and are associated with the Veteran's claims file. The RO has obtained the Veteran's VA and non-VA medical records. The Veteran has been afforded a VA examination, and etiological opinions have been obtained. In April 2013, the Board remanded this claim. The Board directed that a supplemental opinion be obtained from the examiner who conducted the February 2012 DBQ VA examination (Dr. V). In May 2013, this was done. The Board notes that Dr. V did not specifically discuss, as requested by the Board, that a November 2004 VA X-ray report of both knees was noted to show "mild atherosclerosis," and that a February 2012 VA DBQ noted that right knee DJD had an onset during the period of active service, from 2003 to 2004. However, a finding of atherosclerosis in 2004, especially when read in light of the December 2009 VA examination report (which shows that the 2004 finding of "atherosclerosis" was not a typographical error), cannot conceivably result in a grant of the claim for a right knee disorder. The notation in the February 2012 VA DBQ, as to right knee DJD having its onset during the second period of active duty, has been discussed. It has been found to be erroneous. Dr. V clearly concluded that the Veteran's right knee disorder was not related to his service, and her conclusion was presumably based on a review of the entire claims file, to include this evidence. Given the foregoing, the Board finds that there has been substantial compliance with its April 2013 remand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to a veteran are to be avoided). Simply stated, the Board finds that the service and post-service medical record provides evidence against this claim. The Board concludes, therefore, that a decision on the merits at this time does not violate the VCAA, nor prejudice the appellant under Bernard v. Brown, 4 Vet. App. 384 (1993). In March 2009, the Veteran was provided an opportunity to set forth his contentions during a hearing before a DRO. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U.S. Court of Appeals for Veterans Claims recently held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the March 2009 DRO hearing, the DRO identified the issue on appeal. Also, information was solicited regarding the incurrence of his disability. The testimony did not reflect that there were any outstanding medical records available that would support his claim. Therefore, not only was the issue "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim" were also fully explained. See Bryant, 23 Vet. App. at 497. Moreover, the hearing discussion did not reveal any evidence that might be available that had not been submitted. As such, the Board finds that, consistent with Bryant, the DRO complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claims based on the current record. Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER The appeal is denied. ____________________________________________ JONATHAN A. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs