Citation Nr: 1601480 Decision Date: 01/13/16 Archive Date: 01/21/16 DOCKET NO. 09-18 886 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for a right knee disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD N. Holtz, Counsel INTRODUCTION The Veteran served on active duty from August 1965 to February 1970 and from October 1990 to May 1991; he is a combat Veteran. He also reports service in the Reserves during the time between periods of active duty. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The matter was previously remanded by the Board in May 2013 and December 2014 for development. In November 2011, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of this hearing is associated with the claims file. As noted in the December 2014 remand, the Veteran has previously been represented by Disabled American Veterans (DAV). The correct representative, however, as identified in the December 2006 VA Form 21-22, is Veterans of Foreign Wars of the United States (VFW). In October 2014, the Board sent the Veteran a letter describing the discrepancy between the 21-22 in favor of VFW and the fact that DAV appeared with him as his representative at the November 2011 hearing. The letter asked him to clarify his representative, and gave him the opportunity for a new hearing. The letter also told him that if he did not respond within 30 days, the Board would assume that he wished to remain represented by VFW, and that his hearing request has been satisfied. The Board did not receive a response from the Veteran until February 2015, four months after requesting clarification from the Veteran, and after the Board had already issued the December 2014 remand. As discussed further below, the untimeliness of the request, along with the fact that he has presented no basis for a finding that his original November 2011 hearing was inadequate, the Board has declined the Veteran's request for an additional hearing. FINDINGS OF FACT 1. The Veteran engaged in combat with the enemy during service. 2. The Veteran has a right knee disability characterized by arthritis, which had its onset many years after his separation from service. 3. The Veteran drove military vehicles during active duty in Operation Desert Storm, which required strenuous bodily efforts to accomplish tasks such as pushing the brakes, and produced knee pain. 4. The Veteran's right knee disability is not etiologically related to any event or injury during active duty or reserve service. CONCLUSION OF LAW Service connection for a right knee disability is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1137, 1154(b), 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran seeks service connection for a right knee disability, which he claims is related to the strenuous efforts it required to drive military vehicles during Operation Desert Storm. The Board recognizes the Veteran's experiences in combat, and acknowledges that he has a diagnosis of arthritis of the right knee. Further, the Board finds that his description of the circumstances of driving military vehicles is consistent with his service. For the reasons discussed below, however, and despite the combat presumptions of 38 U.S.C.A. § 1154(b), the Board must regretfully find that service connection for a right knee disability is not warranted. VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Here, the Veteran was sent a letter in February 2008 that fully addressed all VCAA notice elements for service connection claims and was issued prior to the initial RO decision in this matter. 38 C.F.R. § 3.159(b)(1); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). Accordingly, no further development is required with respect to the duty to notify. VA's duty to assist the Veteran in the development of the claim includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination, including a March 2015 addendum medical opinion that complied with the Board's most recent remand order, in that the examiner accepted the Veteran's assertion of an in-service injury and pain for purposes of the opinion. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board also instructed the Agency of Original Jurisdiction (AOJ) to obtain all outstanding service personnel records for the Veteran's active Air Force and Army service and his service in the Reserves, and, if such records were unavailable, to make a finding as to whether further attempts to obtain such records would be futile, and notify the Veteran that the records are unavailable. In this regard, while the AOJ failed to make a formal finding that such records were unavailable, there is no basis for finding that the Veteran was prejudiced by this error. The AOJ made two efforts to obtain the relevant Army and Air Force records, and notified the Veteran both of the attempts to obtain the records, and that he should attempt to provide the records himself. The Veteran did not respond, and has not identified any missing records that may be relevant to his claim. Furthermore, the Board is conceding an in-service injury, but ultimately denying the Veteran's claim based on a finding that there is no competent evidence relating his current arthritis diagnosis to service; x-rays of the knee included only normal findings for many years post-service, and there is no suggestion that the potentially missing personnel records have any relevance to the medical question at issue. The AOJ has substantially complied with the Board's remand directives, and, as stated, the Veteran is not prejudiced by the AOJ's failure. Id. The Veteran's statements in support of the claim are of record, including testimony provided at a November 2011 Travel Board hearing before the undersigned. The Board hearing focused on the elements necessary to substantiate his service connection claim and the Veteran, through his testimony and his representative's statements, demonstrated that he had actual knowledge of the elements necessary to substantiate the claim for benefits. As such, the Board finds that, consistent with Bryant v. Shinseki, 23 Vet. App. 488 (2010), the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) (2015). Importantly, the Board acknowledges, as discussed in the Introduction, that the Veteran was represented by the incorrect representative at his November 2011 hearing (that is, he was represented by his former representative, DAV, rather than his current representative, VFW). At that time, the Veteran did not indicate to the Board that he was not represented by the correct organization at the hearing. Furthermore, he was asked at the conclusion of his testimony whether he had "a fair opportunity to present [his] case today?", a question that the Veteran answered in the affirmative. See Nov. 29, 2011 Transcript (Tr.) at 10. The Board sent the Veteran an October 22, 2014 letter informing him of the discrepancy in the representation. (The letter was originally sent on October 2, 2014, but was returned as undeliverable; as noted in the VBMS eFolder, the letter was re-mailed to his correct address on October 22, 2014). The letter requested that he respond within 30 days as to whether he desired a new hearing with his current representative. The Board did not receive a response to that letter throughout the ensuing 30 days, and ultimately remanded the appeal for development on December 30, 2014, listing VFW as the representative on the remand. Only on February 24, 2015, 126 days after the October 22, 2014 letter, did the Veteran respond, at which time he requested a new hearing with VFW. He provided no reason for the delinquency of the response, and, in light of the December 2014 Board remand, gave no reason as to why he believed a new hearing was necessary to adjudicate his appeal. It is evident that the Board provided the Veteran the opportunity to have a second hearing, with the correct representative, but the Veteran did not respond to that inquiry in a timely fashion. See Wood v. Derwinski, 1 Vet. App. 190, 193 (providing that VA made reasonable attempts to assist a Veteran, and that the Veteran shared in the responsibility to ensure that his claim was adequately developed). It should be clear that, had he responded within the timeframe requested, he would have been provided the second hearing that was on offer. Instead, the Board had already remanded the matter for additional development at the time the request was received. At this point, to schedule another hearing would cause significant additional delay. Further, there is no specific benefit to the Veteran that has been identified which would outweigh the cost of the additional delay. At no point has the Veteran suggested that any aspect of service-connection claim was inadequately discussed at the hearing, or that having VFW present would alter the testimony presented. In sum, there is no evidence of prejudice to the Veteran that outweighs the additional delay, in light of the opportunities presented to him to reschedule the hearing in a timely fashion. Bernard, 4 Vet. App. at 394. Entitlement to Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (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. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Certain chronic diseases, which are listed in 38 C.F.R. § 3.309(a), including arthritis, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. As noted in the Findings of Fact, the Board has determined from review of the record that the Veteran has a right knee disability characterized by arthritis. That finding meets the requirement that the Veteran have a current disability, for purposes of service connection. The Board also finds that the Veteran had an in-service injury; the Veteran's testimony of his time driving military vehicles during Operation Desert Storm is consistent with the time and place of his service, and required strenuous bodily efforts to accomplish tasks such as pushing the brakes, and the Board accepts as fact that the Veteran experienced knee pain as a result of his driving of those vehicles. As such, the Board has determined that the evidence meets the first two criteria for service connection, a current disability and an in-service injury. The remaining questions include (a) whether the disability had its onset within one year of service, see 38 C.F.R. §§ 3.307, 3.309; or (b) whether the current disability is etiologically related to the in-service injury. With respect to the first question, the Board notes that the Veteran was not diagnosed with arthritis until many years after he had separated from service. He relates his disability to his final period of active duty, during Operation Desert Storm. He separated from that period of service in 1991, and states that he has had intermittent pain ever since service. His diagnosis of arthritis, however, came many years later. A December 2003 report noted that x-rays of the right knee during the prior year were negative for arthritis. A March 2004 record from the Veteran's treating physician indicated that he had arthritis of the right knee. Even though the Veteran reported intermittent pain in the knee, that lay testimony is not competent to diagnose arthritis, which requires x-ray evidence. Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011). As more than twelve years had passed between the Veteran's separation and any evidence of arthritis, service connection is not warranted on a presumptive basis. 38 C.F.R. §§ 3.307, 3.309. As to the second remaining question, the Board finds that the evidence concerning whether there is a relationship between the current disability and service weighs against the claim. Initially, the Board acknowledges that there is lay evidence, from both the Veteran (see, e.g., November 2011 hearing testimony) and his daughter, B.E.M (see August 2005 statement), relating the current disability to his in-service injuries. While he is competent to identify knee pain, Layno v. Brown, 6 Vet. App. 465, 470 (1994), and his daughter is competent to describe the Veteran's condition, id., arthritis is not a disease which may be diagnosed merely through lay observation. Kahana, 24 Vet. App. at 434. As such, more than lay evidence is required to relate the disability to service; neither the statements of the Veteran nor of his daughter are competent to provide a medical nexus between his arthritis and his active duty. Id. The medical evidence of record is against a finding that the disability is related to service. A March 2015 medical opinion, from an examiner who had previously examined the Veteran (see June 2013 examination report and opinion; at that time, the examiner's negative opinion failed to clearly acknowledge the Veteran's in-service injury), "accepted as fact that the Veteran had right knee pain after driving during reserve service in July 1990, had right knee pain after walking in the desert and driving military vehicles on desert terrain during his service in Operation Desert Storm, and has had intermittent right knee pain since 1995." That examiner opined that the Veteran's current arthritis disability was "not related to any incident or injury from "walking in the desert and driving military vehicles on desert terrain during his service in Operation Desert Storm", activities which "[do] not lead to development of osteoarthritis." The examiner noted that these activities can cause transient and temporary pain, but are not established risk factors for the development of osteoarthritis. The Board finds that the March 2015 examiner's opinion is probative of the issue, in that it is factually accurate, fully articulate, and based on sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). There are no medical opinions relating the knee disability to any event or injury in service that could be weighed against the March 2015 negative nexus opinion. As such, the Board finds that the preponderance of the evidence weighs against the Veteran's claim for service connection. There is no competent evidence linking the current disability to service, and thus the claim must be denied. 38 C.F.R. § 3.303; Holton, 557 F.3d at 1366. In making this finding, the Board acknowledges the fact that the Veteran served in combat, and thus that the presumptions of 38 U.S.C.A § 1154(b) apply. That law does not provide a basis to grant service connection in this instance, however. Although § 1154(b) lowers the evidentiary burden for establishing the presence of a disease or injury in service, it does not negate the need for medical evidence of a nexus between a current disability and active service. See Libertine v. Brown, 9 Vet. App. 521, 524 (1996); Caluza v. Brown, 7 Vet. App. 498, 507 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). A Veteran must still generally establish the claim by competent medical evidence tending to show a current disability and a nexus between that disability and those service events. See Gregory v. Brown, 8 Vet. App. 563, 567 (1996). Thus, § 1154(b) cannot be used to overcome the evidence that weighs against a finding of a relationship between the current disability and the in-service injury. ORDER Entitlement to service connection for a right knee disability is denied. ____________________________________________ Laura H. Eskenazi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs