Citation Nr: 1340852 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 10-31 470 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio THE ISSUE Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: Jewish War Veterans of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Zobrist, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from May 1984 to March 1987. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Cleveland, Ohio, VARO. In February 2011, the Board remanded the case to accommodate the Veteran's request for a Travel Board hearing. Such hearing was held before the undersigned in October 2011; a transcript of that hearing is associated with the claims file. An April 2012 Board decision reopened the claim and remanded it for additional development and de novo review. FINDING OF FACT The Veteran is not shown to have a left knee disability. CONCLUSION OF LAW Service connection for a left knee disability is not warranted. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection 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, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his claim prior to its initial adjudication. A September 2008 letter explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing, and informed him of disability rating and effective date criteria. He has had ample opportunity to respond/supplement the record, and has not alleged that notice in this case was less than adequate. At the October 2011 Travel Board hearing before the undersigned, he was again advised of what evidence is needed to substantiate the claim. The Veteran's service treatment records (STRs) and pertinent post-service treatment records have been secured. The RO arranged for a VA examination in April 2012. As is discussed in greater detail below, the report of that examination is adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). At the October 2011 Travel Board hearing, the Veteran requested a 90-day abeyance to submit additional evidence; the request was granted, but no additional material was received. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide this matter, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any evidence that remains outstanding. VA's duty to assist is met. Accordingly, the Board will address the merits of the claim. Legal Criteria, Factual Background, and Analysis The Board has reviewed all the evidence in the claims file, and in "Virtual VA", with an emphasis on the evidence relevant to the matter on appeal. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that each item of evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 3 8 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection also may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a claimed disability, there must be evidence of: (1) 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on analysis of the evidence of record and evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of a matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all the evidence is assembled, VA is responsible for determining whether it supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran seeks service connection for a left knee disability he claims is related to an injury sustained in service. His STRs reflect that in August 1985 he was hit in the knee by a recoiling gun. The injury sustained was described as a "small superficial abrasion on [left] knee [with] mild soft tissue swelling [and] no sign of internal derangement." An X-ray showed no fracture. The diagnosis was contusion. He was treated with ice and a knee wrap and put on a profile. The following month he sought follow-up care for continued knee pain. No further complaints of knee pain are documented in his STRs. He waived having a service separation examination, indicating he was in good health. On September 1987 VA examination the Veteran reported that he was told that the August 1985 injury had fractured his patella and that he has experienced occasional pain, tenderness, swelling, and giving way since that time. On physical examination, he had full range of motions with some soreness/tenderness around his patella and no crepitance, effusion, or pain with motion. His knee was stable. X-rays showed no osseous abnormality. The diagnosis at that time was residual left knee injury with possible old fractured left patella. January 2003 VA treatment records note that the Veteran did not complain of any arthralgias. In August 2008, he reported a history of knee injury in service, but stated that that he had no chronic ongoing health concerns. The provider noted that range of motion was full, and that there were no symptoms, including crepitus, associated with the joints examined. In his September 2008 request to reopen the claim of service connection for a knee disability, the Veteran stated that he has experience pain and swelling in his knee since service, leading to limited range of motion and noise upon movement. In October 2008, he sought VA treatment for knee pain that he stated was a chronic and worsening condition that had existed since service. On examination, he had some pain on palpation of the superior aspect side of the knee, but there were no other objective symptoms noted. X-rays showed a normal knee without evidence of fracture, dislocation, or other abnormality, although the treatment provider did not rule out possible chondromalacia. December 2008 and January 2009 VA treatment records note complaints of knee pain and swelling, but no diagnosis of a disability. In August 2009, the Veteran sought treatment for knee pain after a fall; X-rays were interpreted as showing possible joint effusion but were otherwise negative for any disability. In October 2009 he again sought VA treatment for knee pain; no disability was diagnosed, and he was advised to pursue physical therapy. He attended several physical therapy appointments between November 2009 and February 2010. In February 2010, the physical therapist noted left infrapatellar crepitus, "[a]pparent patella alta," some pain on palpation, and left knee extension/flexion at 4-/5, but the knee was otherwise within normal limits. Subsequent VA treatment records available in Virtual VA and dated in May 2010, April 2011, and November 2011 note continued complaints of joint pain with normal range of motion and no instability or tenderness. At the October 2011 Travel Board hearing, the Veteran was advised that to substantiate his claim he needed to provide evidence of a current diagnosis of a left knee disability. The record was held in abeyance 90 days for submission of such evidence. None was provided. On April 2012 VA examination, the Veteran provided a history of being hit in the left knee by a cannon recoil machinery in 1985 and treated with a brace, pain medication, and rest. He described current symptoms/impairment. He stated that he can walk about two miles, stand comfortably for about 35 minutes, and sit without problems. He denied using any brace or other assistive device or taking medication for his knee. He denied problems with activities of daily living. He stated that he has dull pain, which gets worse during cold weather, twice weekly when he tries to stand up from a sitting position. He denied flare-ups or total incapacitation. Testing revealed full range of motion with no objective evidence of painful motion and no additional limitation in range of motion following repetitive-use testing. The examiner found no functional loss or functional impairment of the knee, no tenderness or pain to palpation, no instability, and normal muscle strength. There was no evidence or history of recurrent patella subluxation/dislocation or any other additional conditions. There was no evidence of meniscal conditions or surgery. Imaging studies were performed and were unremarkable, with no evidence of degeneration, osseous malformation or fracture, joint effusion, or abnormal joint spacing or alignment. Based on his review of the claims file and physical examination, the examiner concluded that the Veteran incurred a left knee sprain while on active service, but that he currently had a fully functional left knee with no abnormality. The threshold requirement for establishing service connection for a claimed disability is that there must be competent evidence of such disability. Here, there is no objective evidence that the Veteran has a left knee disability. The Board acknowledges the Veteran's complaints of left knee pain. However, the United States Court of Appeals for Veterans Claims (Court) has held that pain alone, without a diagnosed or identifiable underlying malady or condition, is not in and of itself a compensable disability. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). While the evidence shows a knee injury in service and postservice complains of continued pain, said pain has never been accompanied by objective findings of underlying chronic pathology. Whatever diagnoses have been suggested have been in speculative terms, not definitively diagnosed. The Board finds that the April 2012 VA examination, which included review of X-rays and review of the record, and physical examination, is highly probative evidence weighing against a finding that the Veteran has a chronic left knee disability, and against his claim for service connection. In summary, it is not shown that the Veteran has a chronic left knee disability. He has not satisfied the threshold legal requirement for establishing service connection for such disability/presented a valid claim of service connection. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). Consequently, the preponderance of the evidence is against this claim. In such a situation, the benefit of the doubt doctrine does not apply; the appeal in this matter must be denied. ORDER Service connection for a left knee disability is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs