Citation Nr: 0714647 Decision Date: 05/16/07 Archive Date: 06/01/07 DOCKET NO. 95-22 598 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a right knee disability. ATTORNEY FOR THE BOARD Catherine Cykowski, Associate Counsel INTRODUCTION The veteran served on active duty from July 1968 to July 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 1994 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Board previously remanded this matter in May 1999 and March 2003. FINDING OF FACT There is no competent medical evidence of a nexus between a right knee injury in service and the veteran's current right knee disability. CONCLUSION OF LAW A right knee disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110,1154, 5107 (West 2002); 38 C.F.R. § 3.303 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist On November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002), became law. Regulations implementing the VCAA were then published at 66 Fed. Reg. 45,620, 45,630-32 (August 29, 2001) and are now codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2006). The VCAA and its implementing regulations are applicable to this appeal. The duty to notify under the VCAA requires VA to notify the claimant and the claimant's representative, if any, of the information and medical or lay evidence that is necessary to substantiate the claim. In Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 119-20 (2004), the Court specifically held that the VCAA requires VA to provide notice that informs the claimant of any information and 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. In what can be considered a fourth element of the requisite notice, the Court further held that, under 38 C.F.R. § 3.159(b), VA must request the claimant to provide any evidence in his possession that pertains to the claim. Id. at 120-21. The Court has indicated that notice under the VCAA must be given prior to an initial unfavorable decision by the agency of original jurisdiction. Id. The VCAA and its implementing regulations provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. Under these provisions, VA is required to obtain service medical records and relevant VA healthcare records and must make reasonable efforts to help the veteran obtain other relevant medical records. The duty to assist also requires VA to provide the claimant with a medical examination or a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R § 3.159 (2006). The Court has mandated that VA ensure strict compliance with the provisions of the VCAA. Quartuccio v. Principi, 16 Vet. App. at 183 (2002). In this case, as explained below, VA has strictly complied with the VCAA by providing the veteran adequate notice and assistance with regard to the claims on appeal. Accordingly, the veteran is not prejudiced by the Board's decision to proceed with the disposition of this appeal. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). During the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Dingess/Hartman at 488. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. A. Duty to Notify The Court held in Pelegrini that a VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case, because the November 1994 rating decision preceded the enactment of the VCAA, it was not possible for the RO to provide notification prior to the initial unfavorable rating decision. The RO initially provided the veteran with VCAA notice on his service connection claim in August 2004. The August 2004 letter notified the veteran of the evidence required to substantiate a claim for service connection and explained VA's duty to assist. This letter explained what evidence VA was responsible for obtaining and what evidence VA would assist the veteran in obtaining. This notice advised the veteran to submit any pertinent evidence in his possession. The Board finds that the VCAA notification requirements were satisfied. All the VCAA requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). As noted above, because each of the four content requirements of a VCAA notice has been satisfied in this case, any error with respect to timing requirements is harmless error. B. Duty to Assist The RO made reasonable efforts to assist the veteran with the development of this claim. The evidence in this case includes service medical records and available post-service records of treatment for the claimed condition. The RO also made reasonable efforts to assist the veteran with a VA examination as required by § 3.159(c)(4). The veteran had a VA examination in 1998. That examination did not contain sufficient information to decide the claim. The RO subsequently made several attempts to obtain a VA examination for the veteran; however, he was unable to report for a VA examination due to incarceration. The duty to assist incarcerated veterans requires VA to tailor its assistance to meet the peculiar circumstances of confinement, as such individuals are entitled to the same care and consideration given to their fellow veterans. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); Bolton v. Brown, 8 Vet. App. 185, 191 (1995). The Board finds that the RO made reasonable efforts to assist the veteran and that the duty to assist has been satisfied to the extent possible, given the circumstances of this case. II. Analysis of Claim The veteran seeks service connection for a right knee disability. The veteran contends that his current right knee disability is related to a right knee injury that was noted during his active duty service. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in active service. 38 U.S.C.A. §§ 1110. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease 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). Personnel records show that the veteran served as a rifleman in Vietnam. In the case of any veteran who has engaged in combat with the enemy in active service during a period of war, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, condition or hardships of such service, even though there is no official record of such incurrence or aggravation. Every reasonable doubt shall be resolved in favor of the veteran. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2006). Generally, to prevail on a claim of service connection on the merits, there must be medical evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet. App. 341, 346 (1999). A determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1 (1999). The presumption afforded under 38 U.S.CA. § 1154(b) addresses only the question of whether a particular disease or injury occurred in service and does not address the question of either current disability or nexus to service, both of which generally require competent medical evidence. Thus, this provision does not presumptively establish service connection for a combat veteran; rather, it relaxes the evidentiary requirements for determining what happened in service. See Brock v. Brown, 10 Vet. App. 155, 162 (1997). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Post-service medical records reflect a current diagnosis of residual of right medical meniscus injury and right knee pain. Medical records dated from 1991 reflect ongoing complaints of right knee pain and a current diagnosis of residual of right medial meniscus injury. The veteran served on active duty from July 1968 to July 1969. Service medical records reflect that the veteran was seen in January 1969 and March 1969 with complaints of right knee pain. A March 1969 entry in the service medical records notes a diagnostic impression of possible tear of the lateral collateral ligament. No knee conditions were noted during the July 1969 separation examination. The veteran had a VA examination in April 1998. The VA physician rendered a diagnosis of residual of right medial meniscus injury. The examiner did not state an opinion as to whether the veteran's right knee injury is related to service. In this case, there is no medical evidence establishing a nexus between the right knee injury in service and the veteran's current knee disability. As noted above, the veteran has been unable to report for several scheduled VA examinations. While post-service private medical records note the veteran's reported history of right knee injury during service, these records do not contain any medical opinions relating the veteran's current disability to the right knee injury that was diagnosed during service. The Court has held that a bare transcription of lay history, unenhanced by additional comment by the transcriber, does not constitute competent medical evidence merely because the transcriber is a health care professional. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Thus, the notations in the post-service treatment records regarding a history of in- service injury are not sufficient to establish the nexus required for a grant of service connection. The Board concludes that there is a preponderance of the evidence against the veteran's claim for service connection for a right knee disability. As the evidence is not in relative equipoise, the veteran may not be afforded the benefit of the doubt. Rather, as there is preponderance of the evidence against the veteran's service connection claim, it must be denied. ORDER Service connection for a right knee disability is denied. ____________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs