Citation Nr: 1335223 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 10-18 522 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for a bilateral knee disability. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant had active service from September 1971 to June 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. This case was previously before the Board in October 2012 and remanded for additional development. For the reasons discussed below, the Board finds that the RO substantially complied with the mandates of the October 2012 remand and will proceed to adjudicate the appeal. See Stegall v. West, 11 Vet. App. 268 (1998). In December 2011, a Travel Board hearing was held before the undersigned Veterans Law Judge and a transcript of that hearing is of record. FINDING OF FACT The evidence of record does not demonstrate that the appellant has had a current diagnosis of a knee disability during the period on appeal for VA compensation purposes. CONCLUSION OF LAW A bilateral knee disability was not incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1110, 1154, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the appellant's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Notice and Assistance VA has met all statutory and regulatory notice and duty to assist provisions as to the appellant's claim. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013). The United States Court of Appeals for Veterans Claims (Court) held that 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The 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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006); see also 38 U.S.C. § 5103(a). Compliance with the first Quartuccio element requires notice of these five elements. See id. Prior to initial adjudication of the appellant's claim, a letter dated in April 2009 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. at 187; Dingess/Hartman, 19 Vet. App. at 490. VA's duty to assist has been satisfied. The appellant's service treatment records and VA medical records are in the file, including the VA treatment records requested in the October 2012 remand. Private medical records identified by the appellant have been obtained, to the extent possible. The appellant's Social Security Administration records have been associated with the file. The appellant has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. McLendon v. Nicholson, 20 Vet. App. 79 (2006). If VA provides a claimant with an examination in accordance with the duty to assist, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The appellant was afforded an October 2009 medical examination to obtain an opinion as to whether any knee disability found in the examination was the result of service. This opinion was rendered by a medical professional following a thorough examination and interview of the appellant. The examiner obtained an accurate history and listened to the appellant's assertions. The claims file was reviewed. The examiner laid a factual foundation for the conclusions that were reached. Therefore, the Board finds that the examination is adequate. See Nieves-Rodriguez, 22 Vet. App. at 304. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). II. Legal Criteria and Analysis The appellant asserts that he is entitled to service connection for a bilateral knee disability due to an injury during basic training in 1971. For the reasons that follow, the Board finds that service connection is not warranted. Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet.App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Pursuant to 38 C.F.R. § 3.303(b), for certain chronic disabilities, the claimant may establish the second and third elements by demonstrating continuity of symptomatology. See Barr v. Nicholson, 21 Vet.App. 303 (2007). Certain chronic disabilities, such as arthritis, if manifest to a degree of 10 percent or more within one year after separation from active duty, may be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. To prevail on the issue of service connection, there must be medical evidence of a current disability. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997) (a "current disability" means a disability shown by competent medical evidence to exist at the time of the award of service connection). In this case, other than the appellant's assertions, the record contains no evidence of a diagnosis of knee disability, at any time during the appeal period. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (holding that a current disability exists if the diagnosed disability is present at the time the claim is filed or during the pendency of the claim). Without a current showing of a knee disability, service connection is not warranted in this matter. The appellant was afforded a VA examination in October 2009. The VA examiner reviewed the appellant's claims file and VA medical records. After interviewing the appellant and conducting an examination, the VA examiner determined that there was "no evidence of knee joint pathology on today's exam or X-rays." The X-ray report included in the October 2009 VA examination indicated that the appellant had "essentially normal knees bilaterally." The report noted that both knees showed a tiny spur off the antero superior margin of the patella of doubtful clinical significance. The bones were otherwise normal in structure and alignment. No fracture or dislocation was seen. No arthritic changes were seen. The joint spaces were well maintained, and there was no evidence of a knee joint effusion on either side. The report also notes that the appellant had a normal shoe wear pattern without breakdown and he had no calluses to indicate abnormal weightbearing. He could extend both knees to 0 degrees and flex to 145 degrees and after three repetitions without pain. His knees were stable on stress testing. McMurray test was negative. The knee exam was not limited by pain, fatigue, weakness, lack of endurance, incoordination or effort. He did not have painful motion. When the examiner examined the appellant's knee motion, he had no additional limitation with repetitive use. There was no spasm, focal weakness or localized tenderness. He did not show guarding or fear of injury. There was no atrophy, deformity, malignment, incoordination, instability or subluxation. There was no abnormal posturing, abnormal movement or ankylosis. There were no non-organic findings. There was no edema, effusion, redness, heat or drainage. The appellant told the VA examiner that he developed knee pain while doing all the running and marching in basic training. He stated that he sought out a medical evaluation then, but he was able to finish with his group and pass on. The VA examiner stated that with currently available information, the appellant as likely as not had exertion-related knee pain while in the military service. The appellant's VA treatment records and Social Security Administration disability records have been associated with the claims file. In a Social Security Administration disability application, the appellant noted that his knees hurt and his legs sometimes gave out or cramped up. However, the records do not demonstrate that the appellant has been diagnosed with a bilateral knee disorder. Pain alone 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 appellant has contended that he has a bilateral knee disability. As a lay person, the appellant is competent to report knee pain. Although a lay person may be competent to diagnose certain disabilities capable of lay observation, a knee disability is not the type of disorder which is susceptible to lay diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The January 2009 VA examiner based his opinion that the appellant did not have a current knee disability on a thorough examination including X-rays and his expertise. The Board finds the VA examination to be more probative than the appellant's statements as the appellant is not competent to diagnose a knee disability. The Board concludes that the preponderance of the evidence is against a finding that the appellant has been diagnosed with a bilateral knee disability during the period on appeal. As the preponderance of the evidence is against the claim for service connection for a bilateral knee disability, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a bilateral knee disability is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs