Citation Nr: 1335430 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 11-30 248 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a left knee condition. 2. Entitlement to a rating in excess of 10 percent for soft tissue injury of the right antero-medial thigh (claimed as a knee condition). ATTORNEY FOR THE BOARD J. Castillo, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1975 to July 1979. This matter is before the Board of Veterans' Appeals (Board) on appeal of a July 2010 rating decision of a Department of the Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied service connection for a left knee condition and denied a rating in excess of 10 percent for a soft tissue injury of the right antero-medial thigh. The Veteran requested a video-conference hearing before a member of the Board. He was notified of his scheduled January 2013 hearing by letter in November 2012, but did not attend the hearing or subsequently request a new hearing. His hearing request is deemed withdrawn. FINDINGS OF FACT 1. A left knee disability has not been shown at any time during the pendency of the appeal. 2. The Veteran's soft tissue injury of the right antero-medial thigh is productive of a painful, superficial scar. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disability have not been met. 38 U.S.C.A. §§ 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). 2. The criteria for a rating in excess of 10 percent for a soft tissue injury of the right antero-medial thigh have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. § 4.118, DC 5804 (2013). Notice and Assistance Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. A January 2010 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claim was subsequently readjudicated, most recently in a June 2011 statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Veteran's service treatment records and VA medical treatment records have been obtained; he did not identify any outstanding private or VA treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c)(2). The Veteran was afforded a VA examination to evaluate his soft tissue injury of the right antero-medial thigh in March 2010. The Veteran has not argued, and the record does not reflect, that this examination was inadequate for rating purposes. 38 C.F.R. § 3.159(c)(4); Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Veteran was not afforded a VA examination to evaluate his left knee condition. An examination is not necessary because there is no evidence of a current left knee disability; no evidence that a left knee disability may be linked to active service or a service-connected disability; and no reported continuity of symptomatology. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claim file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, any such failure is harmless. See Sanders, 129 S. Ct. 1696. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks service connection for a left knee condition and a rating higher than 10 percent for a soft tissue injury of the right antero-medial thigh. The Veteran has not described any specific symptoms of the left knee condition. He described the soft tissue injury of the right antero-medial thigh as a painful scar. A January 1976 service treatment record shows that the Veteran complained of a cut on the left knee after falling during a physical training exercise. The area was cleaned and bandaged. The service records are otherwise silent for complaints or treatment related to the left knee. Postservice VA medical records are silent for any diagnosed left knee disorder or specific treatment relating to a soft tissue injury to the right thigh. On VA examination in March 2010, the Veteran reported a painful scar on the right medial thigh. The VA examiner indicated that the scar was superficial and not measurable. The texture of the skin was normal. There was no tenderness or adherence to underlying tissue. There was no frequent loss of covering of the skin over the scar. The VA examiner indicated that the scar did not cause limitation of motion or function. Left Knee Condition Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The Veteran is competent to report on the onset and continuity of his current left knee symptomatology; however, he has made no effort to so do. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). There is, in fact, no medical evidence of a left knee disability at any time during the pendency of the claim; and without competent evidence of a current disability, there can be no valid claim of service connection. Absent evidence of a current disability, the preponderance of the evidence is against the claim; there is no doubt to be resolved; and service connection for a left knee disability is not warranted. Right Thigh Condition Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. § 4.7. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Veteran's soft tissue injury of the right antero-medial thigh is currently assigned a 10 percent rating under Diagnostic Code 7804. Under Diagnostic Code 7804, one or two scars that are unstable or painful warrant a 10 percent evaluation; three or four scars that are unstable or painful warrant a 20 percent evaluation; and five or more scars that are unstable or painful warrant a 30 percent evaluation. 38 C.F.R. § 4.118, DC 7804. An additional 10 percent is warranted for scars that are both unstable and painful. As the Veteran only has one scar, which is painful, but not unstable, the criteria for a higher, 20 percent rating, are not met. There are other diagnostic codes available for rating scars; i.e., 7800, 7801, 7802, and 7805. However, as there is no evidence of any of the eight figures of disfigurement; no evidence that the scar is deep; and no evidence that the scar is six square inches or more, none of those diagnostic codes are appropriate. The evidence shows that the Veteran's service-connected soft tissue injury of the right antero-medial thigh results in painful scarring. The rating criteria considered in this case reasonably describe the Veteran's disability level and symptomatology. As the Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation for the service-connected disability is adequate, and referral for extraschedular consideration is not required. Thun v. Peake, 22 Vet. App. 111 (2008); 38 C.F.R. § 3.321(b)(1). The preponderance of the evidence is against the claim; there is no doubt to be resolved; and a rating in excess of 10 percent for a soft tissue injury of the right antero-medial thigh is not warranted ORDER 1. Service connection for a left knee condition is denied. 2. Entitlement to a rating in excess of 10 percent for a soft tissue injury of the right antero-medial thigh is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs