Citation Nr: 1334432	
Decision Date: 10/29/13    Archive Date: 11/06/13

DOCKET NO.  10-40 319	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to service connection for a right knee disability. 


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

N. Sonia, Associate Counsel


INTRODUCTION

The Veteran served on active duty from November 1993 to August 1996.

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

In a May 2013 Board decision, the Board remanded the Veteran's claim for entitlement to service connection for a right knee disability to schedule the Veteran for a VA examination.  The Veteran failed to appear for the examination, which was scheduled for July 2, 2013, and has not provided good cause for failing to appear.  The Board therefore finds that the RO/AMC complied with remand orders and appellate review may continue.  See Stegall v. West, 11 Vet. App. 268 (1998).  

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.  


FINDING OF FACT

The evidence of record does not show a right knee disability during the course of the Veteran's claim and appeal.  


CONCLUSION OF LAW

The criteria for service connection for a right knee disability have not been met.  38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

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)).

Significant to this case, service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection.  See 38 U.S.C.A. § 1110; Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability).  "In the absence of proof of a present disability there can be no valid claim."  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  

Moreover, as noted in the Introduction, because the Veteran was treated for right knee injuries in service, the Board remanded this matter for a VA examination, which was scheduled for July 2013.  The examiner was to perform the necessary examination and testing to identify any current right knee disability and possible etiology.  Although the Veteran received adequate notice to his current address, he failed to report to the examination.  

Under 38 C.F.R. § 3.655, when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record.  When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied.  38 C.F.R. § 3.655 (b).  VA regulations define an original claim as an initial application on a form prescribed by the Secretary.  38 C.F.R. § 3.160 (2013).  Examples of good cause can include, but are not limited to, the illness or hospitalization of the claimant or the death of an immediate family member.  38 C.F.R. § 3.655(a).  

Neither the Veteran nor his representative has submitted any reason for his failure to appear at his scheduled July 2013 examination.  Therefore, there is no good cause shown for his failure to be report.  As such, the appeal will be considered based on the evidence of record. 

In this case, the Veteran contends that service connection is warranted for a right knee disability.  However, the most probative evidence of record does not establish a disability that can be service connected.

As documented in the file on the "Virtual VA" system, the Veteran complained of generalized knee pain in June 2012, August 2010, and June 2010.  In June 2012, the Veteran's gait was noted as nonantalgic.  Moreover, in June 2010, physical examination revealed "ROM intact hands/knees/hips," and the medical examiner noted knee arthralgias without deformity or inflammation.  The examiner did note, however, "pt. states his joints 'look swollen to him' when asked."   

In addition, the Veteran sought treatment at VA for pain in his right low back and hip at Kansas City VA Medical Center (VAMC) in June 2008.  At that time, the Veteran indicated the pain started at the base of the spine and moved upward; he denied any radicular symptoms down from his low back to his leg.  However, he did indicate his leg occasionally felt heavy/asleep/numb.  The medical examiner diagnosed "negative straight leg raise, mild R leg limp with gait, otherwise normal."

Moreover, a July 2009 nerve conduction report from "Dr. R.M." found that the Veteran's right H-reflex was normal, providing evidence against this claim.

In short, while the Veteran complained of right knee pain generally, there is no diagnosis, findings, or other evidence of the existence of a current right knee disability at this time.  The Veteran is competent to describe symptoms he experienced, whether in service or during the years since discharge, based on his personal knowledge, such as pain or a swollen appearance.  Layno v. Brown, 6 Vet. App. 465, 470 (1994).  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.  Even the objective symptom of a slight limp in the right leg in June 2008 was resolved by June 2012, as indicated in the above discussion of the evidence.  In short, there is simply no objective evidence establishing a right knee disability in the present appeal.  Accordingly, the service connection criteria requiring the presence of a current "disability" have not bee met and service connection cannot be granted for symptoms of a disability.  See Brammer, 3 Vet. App. at 225 (1992).  The Board also finds no indication of a "disability" at any point during the appeal period.  Simply stated, at this time, there is simply no disabilities which VA can service connect at this time.      

Finally, the evidence does not show the Veteran has ever been diagnosed with a disease listed as a "chronic disease" under 38 C.F.R. § 3.309(a) for such a claim; thus, 38 C.F.R. § 3.303(b) does not apply.

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 right knee disability, 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).

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 April 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.  

As noted in the Introduction, the Veteran was scheduled for a VA examination for the right knee in July 2013.  However, the Veteran failed to report to the examination without good cause.  When the Veteran fails to report to an examination in an initial claim, VA regulations required his claim to be determined on the information of record.  38 C.F.R. § 3.655.  A claimant has a duty to report for VA examination and must accept the legal consequences for failing to report for good cause.  See Turk v. Peake, 21 Vet. App. 565, 567 (2008).  There is no indication in the record that notice of the examination was sent to the wrong address or that the Veteran was otherwise not contacted at his most recent address.  In this regard, it is important for the Veteran to understand that the "duty to assist" is not a one-way street.  

As such, 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.  

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).

ORDER

Service connection for a right knee disability is denied. 


____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs