Citation Nr: 1343350 Decision Date: 12/31/13 Archive Date: 01/07/14 DOCKET NO. 10-31 131 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUE Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Zobrist, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from April 1994 to June 1997. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Cleveland, Ohio, VARO. The Veteran's claims file is now in the jurisdiction of the Houston, Texas, RO. FINDING OF FACT The Veteran is not shown to have a right knee disability. CONCLUSION OF LAW Service connection for a right knee disability is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). 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 her claim prior to its initial adjudication. An August 2007 letter explained the evidence necessary to substantiate her claim, the evidence VA was responsible for providing, and the evidence she was responsible for providing, and informed her of disability rating and effective date criteria. She has had ample opportunity to respond/supplement the record, and has not alleged that notice in this case was less than adequate. The Veteran's service treatment records (STRs) and pertinent post-service treatment records have been secured. The RO did not arrange for a VA examination/opinion as to the claim decided herein. The Board has considered whether an examination is necessary. Absent any competent (medical) evidence suggesting that the Veteran has a diagnosis of a right knee disability, an examination to secure a medical opinion is not necessary, as even the low standard in McLendon v. Nicholson, 20 Vet. App. 27 (2006), is not met. See 38 C.F.R. § 3.159(c)(4); Duenas v. Principi, 18 Vet. App. 512, 516 (2004). 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 its decision, there is no requirement that each item of evidence submitted by the Veteran or obtained on her 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 right knee disability she claims is related to an injury sustained in service. The initial threshold matter that must be addressed here (as in any claim seeking service connection) is whether or not there is competent evidence that the Veteran currently has (or during the pendency of the claim has had) the disability for which service connection is sought. In the absence of proof of such current disabilities there is no valid claim for service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998), cert. denied, 526 U.S. 1144 (1999). There is no competent evidence of record that the Veteran has (during the pendency of this claim or has had) a right knee disability. Her STRs are silent for any complaint of, or treatment for, a right knee injury. There is no objective evidence in the record, medical or otherwise, showing a complaint of, or treatment for, a right knee disability. In fact, on VA primary care evaluations in July 2007 and June 2011, the Veteran had full range of motion in her extremities. On December 2008 VA examination for traumatic brain injury the examiner noted that there were no joint abnormalities. In April 2009 correspondence to the RO, the Veteran complained of left knee pain; she did not report any right knee symptoms. In summary, the record is silent for any objective evidence of a right knee disability. Thus, the Veteran has not satisfied the threshold legal requirement for establishing service connection for such disability/presented a valid claim of service connection. See Brammer, supra. 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 right knee disability is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs