Citation Nr: 1334426 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 04-04 138 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for a left knee disorder, to include as secondary to a service-connected right knee disorder. 2. Entitlement to service connection for bilateral hip disabilities, to include as secondary to a service-connected right knee disorder. 3. Entitlement to service connection for a low back disability, to include as secondary to a service-connected right knee disorder. (Pursuant to BVA Directive 8430 (May 17, 1999), the claims for earlier effective dates for the grant of a total rating based on individual unemployability and service connection for migraine headaches as well as higher initial schedular and extra-scheduler ratings for migraine headaches will be the subject of a separate Board of Veterans' Appeals decision). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran served on active duty from November 1970 to November 1971. This matter comes before the Board of Veterans' Appeals (Board) from a March 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego. Jurisdiction over the appeal currently resides with the RO in Phoenix, Arizona. In April 2009, the Veteran withdrew his personal hearing request. The Board has recharacterized the back issue as it appears on the first page of this decision so as to best reflect the Veteran's intent when filing the current appeal. The claim of service connection for a low back disability 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. VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. The most probative evidence of record shows that the Veteran has not been diagnosed with a left knee disorder at any time during the pendency of the appeal. 2. The most probative evidence of record shows that the Veteran has not been diagnosed with a disorder of either hip at any time during the pendency of the appeal. CONCLUSIONS OF LAW 1. A left knee disorder was not incurred in or aggravated by military service or caused or aggravated by a service connected disability. 38 U.S.C.A. §§ 1110, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.310 (2006); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). 2. Bilateral hip disabilities were not incurred in or aggravated by military service or caused or aggravated by a service connected disability. 38 U.S.C.A. §§ 1110, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.310 (2006); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Under 38 U.S.C.A. § 5102 VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. Second, under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits. The appellant must also be notified of what specific evidence she is to provide and what evidence VA will attempt to obtain. Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations. 38 U.S.C.A. § 5103A. In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (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. 38 U.S.C. § 5103(a). Initially, the Board finds that there is no issue as to whether the Veteran was provided an appropriate application form or issue as to whether the claimant has veteran status. Next, the Board finds that letters dated in October 2002, May 2006, April 2008, April 2009, July 2009, and January 2011 provided the Veteran with notice that fulfills the provisions of 38 U.S.C.A. § 5103(a) including notice of the laws and regulations governing disability ratings and effective dates as required by the Court in Dingess. While the Veteran was not provided adequate 38 U.S.C.A. § 5103(a) notice prior to the adjudication of the claims, the Board finds that providing him with adequate notice in the above letters followed by a readjudication of the claims in the March 2013 supplemental statement of the case "cures" any timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication. Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34. The Board also finds that even if VA had an obligation to provide the Veteran with additional 38 U.S.C.A. § 5103(a) notice and failed to do so this notice problem does not constitute prejudicial error in this case as the record reflects that a reasonable person could be expected to understand what was needed to substantiate the claims after reading the rating decision, the statement of the case, and supplemental statements of the case. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009). VA has also secured all available pertinent evidence and conducted all appropriate development. Specifically, the record shows that VA obtained and associated with the claims file all identified in-service and post-service records including the Veteran's service treatment records and his available post-service treatment records from the various facilities associated with the San Diego VA Medical Center as well as from the Northern Arizona Health Care System and the Social Security Administration (SSA). In this regard, the Board notes that the RO was notified in December 2002 that Seymour-Johnson Air Force Base did not have any other medical records of the Veteran. It has been alleged that the claims file is missing relevant post-service VA treatment records. Specifically, it is claimed that the record does not contain any of the Veteran's pre-2002 VA treatment records including his 1970 to 2002 treatment records from the Boston and Kansas City VA Medical Centers as well as from the San Diego VA Medical Center including his post-1970 records from the Bradford VA Medical Centers and his post-1983 treatment records from the Mission Valley VA Medical Center. Notwithstanding any claims to the contrary, as reported above the record shows that the RO obtained the Veteran's post-1998 treatment records from Medical Centers associated with the San Diego VA Medical Center including the Mission Valley and La Jolla VA Medical Centers as well as his records from the Northern Arizona Health Care System. The record also shows that in March 2004, after requesting all of the Veteran's January 1970 to December 1979 treatment records from the Kansas City VA Medical Center, VA was notified that no records were found; in March 2004, after requesting all of the Veteran's January 1980 to December 2002 treatment records from the San Diego VA Medical Center, only 1998 to 2003 treatment records were found and forwarded to the RO, in March 2013 a memorandum of unavailability was prepared, and in March 2013 the claimant was notified of the unavailability of the pre-1998 records; in June 2004, after requesting all of the Veteran's January 1970 to December 1979 treatment records from the Boston VA Medical Center, VA was notified that no records were found; in February 2011 and May 2011, after requesting all of the Veteran's January 1983 to December 2003 treatment records from the Bradford VA Medical Center, VA was notified that no records were found, memoranda of unavailability were prepared in March 2011 and June 2011, and the claimant was notified of their unavailability in June 2011; and in July 2003 the Veteran's attorney also notified VA that he attempted to obtain the claimant's alleged outstanding treatment records from the VA clinic at Mission Valley and was told that no records could be located. Therefore, the Board finds that adjudication of these claims is appropriate without additional searches for these records as it is clear that further requests for these records would be futile based on the negative responses received by the RO. Moreover, the Veteran has been provided adequate notice of which of his records are not available. See 38 C.F.R. § 3.159(c)(2). The Veteran was not afforded a VA examination in connection with his appeal. Nonetheless, the Board also finds that a remand for a VA examination is not required because the Veteran, without good cause, failed to attend the VA examinations that were scheduled for him in June 2009, August 2010, and March 2012. To the extent that the Veteran did not report for the VA examinations, he has frustrated the efforts of the Board to obtain evidence and information in connection with his appeal. The duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Moreover, after being notified of 38 C.F.R. § 3.655 (2012) in the March 2012 letter, later in March 2012 the claimant specifically told the RO to adjudicate his appeal based on the evidence already found in the claims file. In summary, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A, or 38 C.F.R. § 3.159. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the appeal. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). In adjudicating the claims below, the Board has reviewed all of the evidence in the Veteran's claims file including those found in Virtual VA. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all 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 claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Claims The Veteran and his representative contend that the Veteran has current left knee and bilateral hip disabilities due to his documented motor cycle accident while on active duty in July 1971. In the alternative, it is claimed that they are due to the gait disturbance caused by his other service connected disabilities. It is also requested that the Veteran be afforded the benefit of the doubt. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including arthritis will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In order to establish service connection for the claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service connection may also be granted where disability is proximately due to or the result of already service-connected disability. 38 C.F.R. § 3.310. Compensation is payable when service-connected disability has aggravated a non-service-connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). There was an amendment to the provisions of 38 C.F.R. § 3.310. See 71 Fed. Reg. 52744-47 (Sept. 7, 2006). The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged. Although VA has indicated that the purpose of the regulation was merely to apply the Court's ruling in Allen, it was made clear in the comments to the regulation that the changes were intended to place a burden on the claimant to establish a pre-aggravation baseline level of disability for the non-service-connected disability before an award of service connection based on aggravation may be made. This had not been VA's practice, which suggests the possibility that the recent change amounts to a substantive change in the regulation. For this reason, and because the Veteran's claims were pending before the regulatory change was made, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the change, which is more favorable to the claimant. In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998). Given the above criteria, the Board will first look to see if the record contains competent and credible diagnoses of a left knee and bilateral hip disabilities at any time during the pendency of his appeal. See 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.310; McClain, supra; Allen, supra. In this regard, service treatment records document the fact that the Veteran was in a motorcycle accident in July 1971. Moreover, the Board finds that the Veteran is competent and credible to report on having observable problems (i.e., pain, limitation of motion, etc . . .) with his left knee and hips while on active duty and since his accident even when not documented in his in-service and post-service treatment records. See Davidson, supra. However, the treatment records generated at the time of the accident were negative for complaints, diagnoses, or treatment for left knee and/or hip injuries and/or disabilities as a result of the accident. Similarly, the subsequent service treatment records, including the November 1971 separation examination, are negative for complaints, diagnoses, or treatment for left knee and/or hip injuries and/or disabilities. In fact, the Veteran did not report a history of left knee and/or hip problems at the time of his separation and the examiner specifically opined that examination of his lower extremities was normal. This medical opinion is not contradicted by any other medical evidence of record. Post-service, the record documents the Veteran's periodic complaints of left knee and hip pain. However, the Court has held that pain alone, without a diagnosed related medical condition, does not constitute a disability for which service connection may be granted and none of the post-service records provide the Veteran with this required diagnosis. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). Moreover, while the Veteran, his wife, and his representative as lay persons are competent to report on the claimant's observable symptoms, such as pain and limitation of motion because this requires only personal knowledge as it comes to them through their senses, the Board finds that they are not competent to provide a diagnosis of chronic left knee and hip disabilities because such an opinion requires medical expertise which they do not have. See Davidson, supra. The Board also finds that facts in the current appeal can be distinguished from those in McClain, supra, because the current appeal does not show a medical history in which the claimant's disabilities resolved during the pendency of the appeal but instead one in which the appellant was never given a competent and credible diagnosis of the disabilities during the pendency of the appeal. As noted previously, VA attempted to obtain such medical evidence by scheduling multiple examinations for the Veteran, but the Veteran failed to attend such examinations and, in fact, requested that the claims be adjudicated on the evidence of record. Therefore, the Board finds the most probative evidence of record shows that the Veteran neither had a chronic left knee or hip disorders at any time during the pendency of the appeal. See Nieves-Rodriguez, supra; See also Stefl v. Nicholson. Accordingly, since a condition precedent for establishing service connection on a direct and secondary basis is the diagnosis of a disability during the pendency of the appeal and the Veteran does not have such diagnoses, the Board finds that entitlement to service connection for left knee and bilateral hip disabilities must be denied on a direct and a secondary basis. See 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.310. In reaching the above conclusions, the Board also considered the doctrine of reasonable doubt. 38 U.S.C.A. § 5107(b). However, as the most probative evidence is against the claims, the doctrine is not for application. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a left knee disorder is denied. Service connection for bilateral hip disabilities is denied. REMAND The Veteran claimed, in substance, that his current low back disability was either caused by his documented July 1971 motorcycle accident while on active duty and/or by the gait disturbance caused by his service connected right knee disorder. Tellingly, the record shows that the Veteran was in motorcycle accident while on active duty in July 1971 and he is service connected for a right knee disorder. The record, starting in 2004, also shows the Veteran being diagnosed with degenerative joint disease of the lumbosacral spine. Moreover, the Board finds that the Veteran is competent to report on having observable problems (i.e., pain, limitation of motion, etc . . .) with his low back while on active duty and since his accident even when not documented in his service treatment records. See Davidson, supra. Given this medical history, the Board finds that a remand is required to obtain a medical opinion as to the relationship, if any, between the appellant's current low back disability and his military service as well as his service connected right knee disorder. See 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79, 84-86 (2006). The record shows that the Veteran receives ongoing treatment from, among other places, facilities associated with the San Diego VA Medical Center and the VA's Northern Arizona Health Care System. However, his post-October 2009 treatment records from the Northern Arizona Health Care System and post-March 2010 treatment records from the San Diego VA Medical Center are not in the claims file. Therefore, while the appeal is in remand status these contemporaneous treatment records from these VA facilities, as well as any outstanding treatment records from any private healthcare providers, should be obtained and associated with the claims file. See 38 U.S.C.A. § 5103A(b); Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA adjudicators are deemed to have constructive notice of VA treatment records). Accordingly, this issue is REMANDED to the RO/AMC for the following actions: 1. The RO/AMC should contact the Veteran and ask that he provide VA with authorizations to obtain any outstanding private treatment records. All actions to obtain the requested records should be documented fully in the claims file. 2. The RO/AMC should obtain and associate with the claims file, physically or electronically, all of the Veteran's post-October 2009 treatment records from the Northern Arizona Health Care System and post-March 2010 treatment records from the San Diego VA Medical Center with the claims file. All actions to obtain the requested records should be documented fully in the claims file. 3. After undertaking the above development to the extent possible, the RO/AMC should obtain from a qualified physician an opinion as to the relationship, if any, between the claimant's current low back disability and his military service or his service connected right knee disorder. The claims file, to include any relevant documents in Virtual VA, should be provided to the examiner in connection with the addendum. The examiner should provide answers to the following questions: a. Is it at least as likely as not (50 percent probability or more) that the Veteran's low back disability is etiologically related to his active military service? If the answer to this question is negative, please answer part (b). b. Is it at least as likely as not (50 percent probability or more) that the Veteran's low back disability was caused or aggravated by his service connected right knee disorder, including any gait disturbance caused by that disability? Please note that the examiner must answer both the causation and the aggravation portions of the question or the response will be deemed inadequate. In providing answers to the above questions, the examiner should comment on and/or take note of the fact that service treatment records document a July 1971 motor cycle accident and even though service treatment records are negative for any low back injury or disability, the appellant is competent to report on injuries and symptoms of injuries that occurred while on active duty even when not documented in his medical records. In other words, the examiner is advised that he cannot rely solely on the fact that service treatment records are negative for the claimed disorder as the basis for any opinion provided because doing so would render the opinion inadequate. See Dalton v. Nicholson, 12 Vet. App. 23 (2007) (holding that the lack of documentary evidence during or after service cannot be the sole basis for an opinion against the claim). If the examiner cannot provide an answer to any of the above questions, the examiner is advised that he/she should explain why the requested opinion cannot be provided (i.e., because the limits of medical knowledge had been exhausted or because further information to assist in making the determination is needed such as additional records and/or diagnostic studies). If the examiner cannot provide the answer because further information to assist in making the determination is needed, all reasonable steps to obtain this missing information should be exhausted before concluding that the answer cannot be provided. See Jones v. Shinseki, 12 Vet. App. 382 (2010) (holding that if an examiner is unable to provide the requested medical opinion he must explain how the limits of medical knowledge had been exhausted). In providing answers to the above questions, the examiner is advised that the term at least as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship; less likely weighs against the claim. In providing answers to the above questions, the examiner is advised that the term aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. If aggravation is present, the clinician should indicate, to the extent that is possible, the approximate level of disability present (i.e., a baseline) before the onset of the aggravation. A complete rationale with citation to relevant evidence found in the claims file must be provided for each opinion offered. 4. The RO/AMC should thereafter readjudicate the claim. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case. A reasonable period of time should be allowed for response before the appeal is returned to the Board. The Veteran 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 or by the Court 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). ____________________________________________ M. N. HYLAND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs