Citation Nr: 1333981	
Decision Date: 10/28/13    Archive Date: 11/06/13

DOCKET NO.  10-15 491	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUES

1.  Entitlement to service connection for a left knee disorder.

2.  Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression, and anxiety disorder NOS.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

N. Sonia, Associate Counsel
INTRODUCTION

The Veteran served on active duty from January 2002 to January 2006.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado.

The Veteran appeared at a Travel Board hearing with the undersigned in May 2013.  A transcript is of record.

During the course of the appeal, the evidentiary development has produced evidence showing psychiatric diagnoses of depression and anxiety disorder, NOS.    In light of the evidence of record and the decision in Clemens v. Shinseki, 23 Vet. App. 1 (2009), the Board has characterized the issue, formerly claimed as PTSD, as service connection for an acquired psychiatric disorder, to include PTSD, depression, and anxiety disorder NOS to address all possible psychiatric disorders, not simply "PTSD".

The Board has not only viewed the Veteran's physical claims file, but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence.  

The issue of PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.

FINDING OF FACT

The Veteran currently does not have a left knee disorder. 





CONCLUSION OF LAW

The criteria for service connection for a left knee disorder have not been met.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (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) (2013).  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 an August 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 will be discussed below, the Board finds that the Veteran does not have a current left knee disorder.  Therefore,  because there is no competent evidence of a current disability or persistent or recurrent symptoms of a disability, the Board finds that a medical examination or medical opinion is also not required in this case as to the issue of a left knee disorder. 

Moreover, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  In connection with the current appeal, the evidence of record includes the Veteran's service treatment records, statements in support of the claim by the Veteran and his representative, VA treatment records,  and private medical records.  

With respect to the May 2013 hearing, the Court held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. § 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, during the hearing, the VLJ fully explained the issues on appeal.  The Veteran was assisted at the hearing by an accredited representative from Disabled American Veterans, and the VLJ and the representative asked questions regarding the nature and etiology of the Veteran's claimed left knee disability.  In addition, the VLJ verified that the Veteran had not received any more recent treatment for his left knee that was not already contained in the evidence of record.  Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing.  As such, the board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in notice provided during the Veteran's hearing constitutes harmless error. 

In conclusion, 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).




Service Connection

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)(2013).  "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 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. 

Here, the Veteran asserts that he has a current left knee disorder as a result of an in-service injury.  Specifically, in the May 2013 Board hearing, the Veteran testified that he injured his left knee when he jumped out of a truck during a training operation.  The Veteran also described his left knee injury as a "wear and tear thing" as a result of lifting and other physical activities.  In addition, the Veteran testified that he injured both of his knees during a football game, not just his right knee.  

Service treatment records show that the Veteran injured his right knee during a football game in August 2005.  At that time, emergency medical records identified the injury as a right knee injury with no mention of the left knee.  In addition, the Veteran received an X-ray that showed suprapatellar joint effusion of the right knee.  During follow-up treatment in November 2005, the Veteran again reported pain and instability in the right knee, but he also reported he could still  bike.  An MRI revealed a lateral meniscus tear of the right knee.  In December 2005, a medical examiner at the orthopedic clinic reviewed the MRI and indicated that the Veteran would need a right knee arthoscopy with meniscus debridement and cartilage surgery as needed.  Again, the record is silent for any complaints of left knee pain or any other symptoms.  Thus, a review of his service treatment record shows that the Veteran repeatedly sought treatment for his football injury without identifying any left knee symptoms.  Such histories reported by the Veteran for treatment purposes are of more probative value than the more recent assertions and histories given for VA disability compensation purposes.  See Rucker v. Brown, 10 Vet. App. 67, 73 (1997).

Moreover, at his separation examination, the Veteran reported a history of knee trouble.  Significantly, the Veteran indicated that his overall health was worse because of his right knee condition, with no reference to any left knee condition or symptomatology.  Also, the examiner's summary only identified a right knee injury.  In short, the Veteran's in-service history of symptoms at the time of service separation is more contemporaneous to service, so is of more probative value than the more recent assertions made many years after service separation.  See Harvey v. Brown, 6 Vet. App. 390, 394 (1994); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997).  

The Board also notes that on his VA 21-526, the Veteran specifically filed a VA disability compensation claim for service-connection for a "right knee injury."  He did not indicate a bilateral knee condition or identify any left knee symptomatology.  

The evidence of record also includes VA treatment records from August 2009, which note knee pain, and January 2010, which indicated that the Veteran reported knee pain.  However, the medical professional noted a "normal knee exam" and X-ray.  

The Board acknowledges that the Veteran is competent to describe symptoms he experienced, whether in service or during the years since discharge, based on his personal knowledge.  See Layno, 6 Vet. App. at 470.  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 left knee disorder in the present appeal.  

More significantly, the Board emphasizes the medical findings of a normal knee x-ray in January 2010 and finds that the Veteran's treatment and statements contained therein outweigh his claim that he has current left knee symptoms as a result of an in-service injury.  Accordingly, the service connection criteria requiring the presence of a current "disability" have not bee met and service connection cannot be granted.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

Therefore,  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 left knee disorder, 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 (2013).


ORDER

Service connection for a left knee disorder is denied.


REMAND

In this case, the Veteran contends, in pertinent part, that he has PTSD as a result of an in-service stressor involving service in Korea.  The Veteran has stated that he was at a base a half mile from the Demilitarized Zone (DMZ) in Korea when North Koreans threatened to approach the DMZ.  In describing the stressor, the Veteran indicated that although there were no U.S. casualties, there was a heightened level of alertness and that he could hear South Korean trucks responding.  At the May 2013 hearing, the Veteran testified that he thought he was in Korea in approximately 2003, but he also indicated he had difficulty remembering the date of the event. 

Here, the Joint Services Records Research Center (JSRRC) Coordinator wrote in a September 2012 memorandum that the Veteran's service in Korea was confirmed but there was no evidence that he was at or near the DMZ or that the event described by the Veteran could be corroborated.  However, a review of the Veteran's personnel file shows that the Veteran received the Korean Defense Service Medal with dates of the award covering March 2004 through April 2004.  Thus, the JSRRC should be contacted, and the Veteran's unit histories should be obtained, to include any and all references to his unit's involvement at the DMZ.

Accordingly, the case is REMANDED for the following action:

1.  Contact the JSRRC and obtain unit records from March 2004 through April 2004, for the 1st BN, 12th Marines, 3rd Marine Division, when the Veteran alleges he was in Korea.  Specifically, any records which document any activities at the DMZ should be obtained, and copies associated with the claims file.  Should no records be available, please provide an annotation of this finding in the claims file.   

2.  If the unit records are obtained, and they corroborate the Veteran's in-service stressor, specifically involving the events the Veteran described in the DMZ, then schedule the Veteran for a VA examination to evaluate any current psychiatric disorders, to include PTSD, depression, and anxiety disorder NOS.

The relevant medical records should be made available to the examiner for review in conjunction with the examination, and the examination report should reflect that such review was accomplished.  All indicated tests and studies should be accomplished and the findings then reported in detail.  

The examiner must review all pertinent evidence of record and provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that each of the Veteran's psychiatric conditions began during service or are otherwise linked to service.  Because the Veteran has indicated his PTSD is at least partially based on fear of hostile military activity, the examiner must address whether the Veteran's time in the DMZ and claimed stressor (i.e. any firefights or heightened alert status) are adequate to support a diagnosis of PTSD and whether the Veteran's symptoms are related to that claimed stressor. 

A rationale should be given for all opinions and conclusions expressed and should not be solely based on the absence of treatment records during or after service.  If an opinion cannot be rendered without resorting to speculation, the VA examiner should explain why it would be speculative to respond. 

3.  Then, readjudicate the Veteran's claim on the merits.  If the benefit sought is not granted, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond thereto.  Then return the case to the Board, if in order.

The appellant has the right to submit additional evidence and argument on the matter or matters 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. 2013).



______________________________________________
MICHELLE L. KANE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs