Citation Nr: 1738631 Decision Date: 09/13/17 Archive Date: 09/22/17 DOCKET NO. 13-33 504 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for a left knee disability. 2. Entitlement to service connection for allergies. REPRESENTATION Veteran represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD Steven D. Najarian, Associate Counsel INTRODUCTION The Veteran served on active duty in the Marine Corps from July 1993 to July 1997 and in the Army from December 1997 to December 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Veteran requested a videoconference hearing of the Board. See VA Form 9 of November 2013. In January 2017, the Veteran was notified that a videoconference hearing at the RO had been scheduled for March 7, 2017. The Veteran failed to report to the March 2017 hearing and has not requested a new hearing. Therefore his request for a Board hearing is considered withdrawn. See 38 C.F.R. §§ 20.702(d), 20.704(d) (2016). The paperless record of Virtual VA and the Veterans Benefits Management System (VBMS) has been reviewed. The issue entitlement to service connection for allergies is addressed in the REMAND portion below and is REMANDED to the agency of original jurisdiction (AOJ). FINDING OF FACT A left knee disability is not shown at any time since the Veteran's claim was filed. CONCLUSION OF LAW A left knee disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). A letter sent to the Veteran in August 2011 satisfied VA's duty to notify. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate the claim. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c), (d) (2016). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim and will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. See 38 C.F.R. § 3.159(c)(4) (West 2016). The evidence of record includes service treatment records, private treatment records, and statements of the Veteran. The Veteran states that he has not received treatment from a VA medical facility. See Veteran's claim of July 2011. VA has not afforded the Veteran a VA medical examination relating to the left knee. VA must provide a VA medical examination or opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. See 38 U.S.C.A. § 5103A(d)(2) (West 2014), 38 C.F.R. § 3.159(c)(4)(i) (2016). There is a low threshold for the third factor. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). As discussed below, there is no competent evidence of a current disability or persistent or recurrent symptoms of a disability, nor evidence establishing an injury during service. Accordingly, a VA medical examination or opinion as to the Veteran's left knee is not warranted. See 38 U.S.C.A. § 5103A(a)(2) (West 2014); Bardwell v. Shinseki, 24 Vet. App. 36, 39-40 (2010). No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. See Smith v. Gober, 14 Vet. App. 227 (2000). The Veteran has not raised any issue with respect to the duties to notify and assist. The Board is not required to search the record to address procedural arguments that a veteran has not raised. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016) (applying Scott to the duty to assist). Service Connection In general, service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease that was incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2016). There must be: (1) a present disability; (2) an 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, the so-called "nexus" requirement. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d) (2016). For a veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases, including arthritis, if the disability is manifest to a compensable degree within one year of discharge from service. See 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2016). Where the condition noted during service is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned, service connection may be established by a continuity of symptomatology after discharge. See 38 C.F.R. § 3.303(b) (2016). The presumption relating to a continuity of symptomatology can be used only in cases involving conditions recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The claimant bears the evidentiary burden of establishing all elements of a service-connection claim, including the nexus requirement. See 38 U.S.C.A. § 5107(a) (West 2014); Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). The Board must give the claimant the benefit of the doubt as to any issue material to the claim when there is an approximate balance of positive and negative evidence. See 38 U.S.C.A. § 5107(b) (West 2014). For a claim to be denied on the merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Left knee disability The Veteran seeks service connection for a left knee disorder. See Veteran's claim of July 2011. The Veteran has not been diagnosed with a current disability by a medical professional. Other than stating on his claim form that his left knee condition had its onset in 1993, the Veteran has provided no context or information concerning the manifestations of a left knee disability. See Veteran's claim of July 2011. A private treatment record of December 2002 notes a workplace injury to the left knee in December 2002, some nine years before the Veteran filed his service-connection claim. The Veteran has not provided medical records associated with a current left knee disability or sufficient information to enable VA to request any such records. The Veteran is competent to report his experienced symptoms. See Layno v. Brown, 6 Vet. App. 465 (1994). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) a layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence, the lack of contemporaneous medical evidence can be considered and weighed against lay statements. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). When considering whether lay evidence is competent, the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). While the Veteran believes he has a disability of the left knee, he is not competent to diagnose disability of this type, and no Jandreau exception applies. He has not reported any symptomology, and no clinical record notes left-knee complaints or pathology. Entitlement to VA disability compensation for service-connected disease or injury requires a current disability. See 38 U.S.C.A. §§ 1110, 1131 (West 2014); Degmetich v. Brown, 104 F. 3d 1328 (1997). In the absence of a present disability due to disease or injury, there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Pain alone, without a diagnosed or identifiable underlying malady or condition, does not constitute a disability for which service connection can be granted. See Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Moreover, because the Veteran has not been shown to have arthritis of the left knee, an analysis based on presumed service connection for the chronic disease of arthritis does not apply. See 38 C.F.R. §§ 3.303(b), 3.309(a) (2016). There is also no evidence of an in-service injury to the left knee. The service treatment records note no knee injury. For his separation examinations of April 1997 and July 2000, the Veteran stated that he was in good health and specifically denied current or past swollen or painful joints, arthritis, rheumatism, bursitis, lameness, or a "trick" or locked knee. He answered "no" to the form question as to whether he had suffered from any injury or illness while on active duty for which he did not seek medical care. No left knee symptoms were noted by the clinician in April 1997 or July 2000, and the Veteran was found to be normal with respect to the lower extremities and "spine, other musculoskeletal." See April 1997 separation examination reports of April 1997 and July 2000. VA must give due consideration to all pertinent medical and non-expert evidence in evaluating a claim for disability benefits. See 38 U.S.C.A. § 1154(a) (West 2014); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Here the Veteran has failed to provide any detail as to the nature of an in-service injury and a current disability. To the extent that the Veteran contends that he injured his left knee during service, the contention is at odds with the remainder of the record and therefore unpersuasive. With the required assistance of VA in developing his claim, the Veteran has failed to present competent evidence in support of service connection. See 38 U.S.C.A. § 5107(a) (West 2014); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The claim must be denied as there is no competent evidence of a left knee disability at any time since the Veteran filed his claim, as well as no evidence of an injury during service. The preponderance of the evidence is against the claim, and there is no reasonable doubt to be resolved. See 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. §§ 3.102 (2016). ORDER Service connection for a left knee disability is denied. REMAND The Veteran alleges that he has an allergy disability that is related to asbestos exposure during service. He dates the onset of his allergies to 2009. See Veteran's claim of July 2011. Currently there is no record evidence of a diagnosed allergy, and the Veteran has provided no detail as to the nature and manifestations of his alleged allergies. The Veteran's military occupational specialty was "const equip rep" in the Army and engineer equipment mechanic in the Marine Corps. The Veteran's service treatment records do not indicate treatment or symptoms concerning an allergy. An April 1995 service treatment record notes redness in the right eye of one day's duration. There appeared to be burst red blood vessels in the right top corner of the right eye. The assessments were a possible foreign body in right eye and subconjunctival hemorrhage of the right eye. There was no notation of an allergy symptom. The separation examination reports of April 1997 and July 2000 found the Veteran to be normal with respect to sinusitis, hay fever, asthma, shortness of breath, chronic cough, and ear, nose, and throat trouble. The Veteran reported himself to be in good health and noted no allergy symptoms. In a September record relating to medical clearance for "respirator use/painting," the Veteran answered "yes" to form questions as to whether he worked in confined areas and in the vicinity of irritating fumes, dust, smoke, gases, vapors, or mists. The Veteran denied having had persistent cough, shortness of breath, or any allergies. The record cleared the Veteran with no restrictions for respirator use/painting. There is no specific statutory or regulatory guidance with regard to asbestos-related claims. VA has developed administrative guidelines to analyze an appellant's claim to entitlement to service connection for asbestosis or asbestos-related disabilities. See Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). In 1988, VA issued a circular on asbestos-related diseases that provided guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans Administration, DVB Circular 21-88-8, asbestos-related diseases (May 11, 1988). The information and instructions contained in the DVB circular have since been included in VBA's Adjudication Procedure Manual, M21-1, Part IV, Subpart ii, Chapter 1, Topic 3 (updated August 17, 2017). In addition, an opinion by VA's Office of General Counsel discusses the development of asbestos claims. See VAOPGCPREC 4-2000. The Veteran alleges exposure to asbestos during service and seeks service connection for a specific disability. It does not appear from the record that the RO followed the steps outlined in the M21-1 for attempting to obtain the necessary evidence in support of a substantially complete application based on exposure to asbestos. The M21-1 manual provides that all claims based on asbestos exposure require military personnel records, specific exposure information from the claimant, and medical evidence of the specific diagnosis. See M21-1, IV.ii.1.l.3.c. Given the appellant's contentions and his military occupational specialties, the Board finds that additional development is necessary. See 38 C.F.R. § 19.9(a) (2016). The AOJ should conduct appropriate development, as mandated by the M21-1, to verify any potential exposure to asbestos during the Veteran's service. This includes obtaining military personnel records, sending a development letter to the Veteran requesting additional exposure information, and, when required, determining if asbestos exposure is established on the basis of a review of specific criteria. Accordingly, the case is REMANDED for the following action: 1. Conduct appropriate development, as outlined in the VA Adjudication Procedure Manual M21-1, to verify any potential exposure to asbestos during the Veteran's service. See M21-1, IV.ii.1.l.3. A formal finding must be issued regarding the likelihood that the Veteran was exposed to asbestos during his active service. The finding must include a rationale and be associated with the record. 2. If asbestos exposure is established, and if there is evidence of a current disability sufficient to warrant an examination, follow the M21-1 procedures to schedule the Veteran for a VA examination relating to the claim. See M21-1, Part IV, Subpart ii, 1.l.3.f. 3. Take any appropriate corrective action to ensure that the above development is accomplished to the extent possible, and undertake any further development deemed warranted. 4. Then readjudicate the Veteran's claim. If any benefit remains denied, issue a supplemental statement of the case (SSOC), and give the Veteran and his representative the requisite opportunity to respond. The case should then be returned to the Board, if otherwise in order, for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ KRISTI L. GUNN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs