Citation Nr: 18158977 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 16-16 663 DATE: December 18, 2018 ORDER Service connection for right knee condition is denied. Service connection for heart condition is denied. FINDINGS OF FACT 1. The preponderance of the competent and probative evidence of record is against finding that the Veteran has a current diagnosis of right knee disability. 2. The preponderance of the competent and probative evidence of record is against finding that the Veteran has a current diagnosis of a heart disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a heart condition have not been met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 2008 to August 2010. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a November 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes the RO inadvertently sent the Veteran a letter in September 2018 regarding being scheduled for a hearing with a Veteran Law Judge (VLJ). There is no evidence of record that shows the Veteran has request such a hearing. His April 2016 Form 9 perfecting his appeal, has no annotations selected regarding a hearing. Further, an April 2016 statement from his accredited representative did not request a hearing. As such, the Board finds there is no due process error that requires corrective action. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 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). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements above is through a demonstration of continuity of symptomatology. However, this method may be used only for the chronic diseases listed in 38 C.F.R. § 3.309. Walker v. Shinseki, 708 F.3d 1331, 1336-38 (Fed. Cir. 2013). Regulations provide that service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Further, a disability which is aggravated by a service-connected disorder may be service connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439, 449 (1995); 38 C.F.R. § 3.310(b). In order to establish entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). 1. Entitlement to service connection for right knee condition. The Veteran contends that he has a right knee condition that is related to his active military service. The question for the Board is whether the Veteran has a current disability that began during service or is at least likely as not related to an in-service injury, event, or disease. The Board finds that the competent medical evidence of record weighs against a finding of a current disability. The Board notes there is no entrance examination associated with the file. Service treatment records reveal that the Veteran was treated on active duty in August 2009 when he heard his right knee pop while on a training run. An X-ray of the knee was negative with slight soft tissue swelling seen over the tibial tubercle, no fracture apparent. He was seen again in July 2010 for right knee pain. Another X-ray was performed and compared to the August 2009 X-ray. Once again, the results were objectively normal, noting no evidence for acute bony pathology of the right knee. At discharge, his June 2010 separation examination reflects a normal clinical evaluation of the lower extremities. His accompanying Report of Medical history annotated knee trouble along with swollen and painful joints. In the examiner’s summary section, this report annotates that the Veteran was given a diagnosis of patellar tendonitis and that he wore a knee brace. Based on the foregoing, the Board finds that the competent evidence shows an in-service event/injury to the right knee. In January 2016, the Veteran was afforded a VA examination regarding his right knee condition. He reported medial discomfort when he ran. There were no reported surgeries or injuries. The VA examiner conducted an in-person examination where he conducted range of motion (ROM) testing, repetitive use testing, and muscle strength testing resulting in 5/5 strength. There was no ankylosis or instability noted. It was noted that imaging studies of the knee were performed and did not reveal degenerative or traumatic arthritis or any other significant findings or results. The examiner noted no functional impact, to include on his ability to perform any type of occupational task (such as standing, walking, lifting, sitting, etc.) The examiner concluded there was no current knee disability diagnosis. After reviewing the pertinent lay and medical evidence, the Board finds that the evidence weighs against a finding of a current right knee disability or pain causing functional impairment. In this regard, the Board acknowledges the notation on the report of medical history at separation, but also notes that clinical evaluation at separation was normal. After service and the filing of this claim, VA provided the Veteran with an examination to assist in the adjudication of this issue. Based on the in-person examination, to include physical testing of the knee and imaging studies; the examination report reflects no right knee diagnosis. The Board also notes that the Veteran did not list any knee treatment a VA facility on his July 2014 application for compensation. The Board finds this a factor that tends to weigh against the claim. Based on all these factors, the Board finds that the competent and probative evidence weighs against finding of a current diagnosis of the right knee. As such, the claim for service connection must fail. The Board recognizes the Veteran’s belief that he has a knee condition due to his active service. In this regard, in Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the Federal Circuit determined that 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 (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient is an issue of fact. In this case, the lay evidence is insufficient to establish a diagnosis of a knee condition, as none of the factors set forth above have been satisfied. In sum, as no knee disability is shown, the claim of service connection must be denied. The preponderance of the evidence is against the claim and thus the benefit-of the-doubt rule is not for application. 38 C.F.R. § 3.102. 2. Entitlement to service connection for heart condition. The Veteran contends that he has a heart condition related to his active service. The question for the Board is whether the Veteran has a current disability that began during service or is at least likely as not related to an in-service injury, event, or disease. The Board finds that the competent medical evidence of record weighs against a finding of a current disability, to include functional impairment. As noted above, no entrance examination is associated with the file. The Board will presume the Veteran to have been sound at entrance as there is no evidence to the contrary. Indeed, the United States Court of Appeals for Veteran's Claims (Court) has noted it is presumed that an entrance examination is provided prior to all periods of active duty service. See Quirin v. Shinseki, 22 Vet. App. 390, n.5 (2009) (citing Lee v. Brown, 10 Vet. App. 336, 339 (1997) (holding that the presumption of soundness applies even when the record of a veteran’s entrance examination has been lost or destroyed while in VA custody)). During service the Veteran experienced atypical chest pain. An electrocardiogram (EKG) performed in May 2010 appeared normal. In this regard, the test revealed normal perfusion in the left ventricle, normal cavity size, normal wall motion, and normal left ventricular ejection fraction of 55 percent. At discharge, his June 2010 separation examination report reflects a normal clinical evaluation. However, it reflects, in the summary of defects and diagnoses, that he was experiencing chest pain and was being evaluated by cardiology internal medicine. His accompanying Report of Medical History noted heart trouble. The examiner’s summary section notes that he was being evaluated by cardiology for atypical chest pain and was pending the results of 30-day monitoring and follow up. Based on the foregoing, the Board finds that the competent evidence shows an in-service event, injury, or disease of the heart. In January 2016, the Veteran was afforded a VA examination for his heart. It was noted that he did not get deployed for overseas duty as he developed chest pains while in physical training. It was recorded that he had negative cardiac stress testing at Ft. Hood in 2010. The medical history also reflects that he was evaluated at Presbyterian Hospital in Plano, Texas in 2011 for chest pains (records not available) and did not know what the tests showed, but he was told that did not need any interventions nor medications. Next, he reported that he had experienced no chest pains during the previous three years. Rather, he did report active pulmonary tuberculosis, which he had been undergoing treatment for approximately 9 months. At the time of the examination he did not experience shortness of breath or coughs. Notably, he performed calisthenics daily for an hour without chest discomfort. A physical examination revealed, among other normal or negative findings, a regular rhythm, hearts sounds, and peripheral pulses. The May 2010 echocardiogram was reviewed and incorporated into this report. He METs were 19.2. The report also notes no impact from his heart condition on the Veteran’s ability to work. After the above, the VA examiner concluded that there was no heart disability diagnosis. The rationale was based on the normal EKG in the military and his current lack of cardiac symptomatology, to include lack of chest pains. After reviewing the pertinent lay and medical evidence, the Board finds that the evidence weighs against a finding of a current heart disability or pain causing functional impairment. In this regard, the Board acknowledges the notations on the reports of clinical evaluation and medical history at separation. The Board notes that clinical evaluation of the heart at separation was normal. He noted to be followed up by cardiology pending 30-day results. The record reflects that he was subsequently was given a general (under honorable conditions) discharge on August 4, 2010. The type of separation does not reflect medical reasons. After service and the filing of this claim, VA provided the Veteran with a heart examination to assist in the adjudication of this issue. Based on the in-person examination, to include physical examination of the heart, consideration of his in-service (include the May 2010 echocardiogram) and post-service medical history; the examination report reflects no diagnosis of a heart disability. The Board also notes that the Veteran did not list any heart treatment a VA facility on his July 2014 application for compensation. The Board finds that such is a factor that weighs against the claim. Based on the foregoing factors, the Board finds that the competent and probative evidence weighs against finding of a current diagnosis of the heart disability, to include functional impairment from such a disability. As such, the claim for service connection must fail because the weight of the competent and probative evidence does not demonstrate that the Veteran has been diagnosed with any current heart ailment. In the absence of proof of a current disability, there can be no valid claim for service connection. Without competent evidence of a diagnosed disability, service connection for the disorder cannot be awarded. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (holding that, in the absence of proof of a present disability, there can be no valid claim). The Board recognizes the Veteran’s assertions that he has a heart condition related to his active service. He is credible to report observable symptoms, such as chest pain and/or tightness. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, as a layperson without medical training, the Veteran is not qualified to determine whether he has a diagnosis of a heart condition and to etiologically relate his claimed disability to service or any service-connected disability. The Board notes that cardiac problems are complex due to the intertwined nature of the heart with other body systems. Thus, the Veteran’s assertions that he has a heart condition which was incurred in service or as a result of his service are not competent and afforded no probative weight as the record does not show that the Veteran has the expertise to render opinions about medical matters. In sum, the Veteran does not have a current diagnosis diagnosed heart disability, to include functional impairment. The preponderance of the evidence weighs against a finding for service connection for a heart condition. The benefit-of-the-doubt rule has been considered but the weight of the evidence is against the claim. 38 C.FR. § 3.102. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. M. Williams, Associate Counsel