Citation Nr: 0734101 Decision Date: 10/30/07 Archive Date: 11/07/07 DOCKET NO. 06-28 159A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a right knee disability, to include arthritis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert L. Grant, Associate Counsel INTRODUCTION The veteran had active duty service from August 1967 to May 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision of the VA Regional Office (VARO) in St. Petersburg, Florida which denied entitlement to the benefit sought. FINDINGS OF FACT 1. VA has made all reasonable efforts to assist the veteran in the development of his claims and notified him of the information and evidence necessary to substantiate the claims addressed in this decision. 2. The competent medical evidence of record does not establish a link between any current right knee disability and the veteran's active service. CONCLUSION OF LAW Service connection for a right knee disability, to include arthritis, is not warranted. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The enactment of the VCAA, codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002), significantly changed the law prior to the pendency of this claim. VA has issued final regulations to implement these statutory changes. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). The VCAA provisions include an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits, and they redefine the obligations of VA with respect to the duty to assist the veteran with the claim. a. Duty to Notify VA has a duty to notify the veteran of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. The Board concludes that the September 2005 pre-adjudicative letter sent to the veteran by the RO adequately apprised him of the information and evidence needed to substantiate the claim. The RO thus complied with VCAA's notification requirements. In order to meet the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must: (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. Sanders v. Nicholson, 487 F.3d 881, 886 (Fed. Cir. 2007) (outlining VCAA notice requirements); Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (same). Additionally, during the pendency of this appeal, on March 3, 2006, the U.S.Court of Appeals for Veterans Claims (Court) issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484, 486 (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. Id., at 486. This notice must also inform the veteran that a disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id. The September 2005 letter from the RO satisfies these mandates. It informed the veteran about the type of evidence needed to support his claim, namely, proof of: (a) an injury in military service or disease that began in or was made worse during military service, or an event in service causing injury or disease; (b) a current physical or mental disability; and (c) a relationship between the current disability and an injury, disease or event in service. This correspondence clearly disclosed VA's duty to obtain certain evidence for the veteran, such as medical records, employment records and records held by any Federal agency, provided the veteran gave consent and supplied enough information to enable their attainment. It made clear that although VA could assist the veteran in obtaining these records, he carried the ultimate burden of ensuring that VA received all such records. This letter additionally apprised the veteran that VA would schedule a medical examination or obtain a medical opinion for him if the RO determined such to be necessary to make a decision on the claim. It also specifically asked the veteran to provide VA with any other supporting evidence or information and to indicate whether or not he had any such additional evidence. The Board finds that the veteran was effectively informed to submit all relevant evidence in his possession, and that he received notice of the evidence needed to substantiate his claim, the avenues by which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. See Beverly, 19 Vet. App. at 403; see also Mayfield v. Nicholson, 19 Vet. App. 103, 109-12 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). With respect to the Dingess requirements, in May 2007 the veteran was provided with notice of what type of information and evidence was needed to substantiate the claim, as well as notice of the type of evidence necessary to establish an increased rating or effective date for the rating. The Board finds that any defect with respect to the timing of the VCAA notice letters was harmless error. Although the complete notice was not provided to the appellant until after the initial adjudication, the case is herein denied, thereby rendering moot the matters of disability rating and effective date. The content of the notice provided to the appellant fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The appellant been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his claim. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal. b. Duty to Assist VA also has a duty to assist the veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim"). This duty includes assisting the veteran in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant). VA informed the veteran of its duty to assist in obtaining records and supportive evidence, and the veteran in fact did receive a January 2006 VA examination, which was thorough in nature and adequate for the purposes of deciding this claim. The Board finds that the medical evidence of record is sufficient to resolve this appeal, and the VA has no further duty to provide an examination or opinion. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Based on the foregoing, the Board finds that the VA fulfilled its VCAA duties to notify and to assist the veteran, and thus, no additional assistance or notification was required. The veteran has suffered no prejudice that would warrant a remand, and his procedural rights have not been abridged. Bernard v. Brown, 4 Vet. App. 384 (1993). Pertinent Laws and Regulations Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. 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 injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In addition, certain chronic diseases, including arthritis, may be presumed to have been incurred during service if they first become manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In order for service connection to be granted, there must be competent evidence showing: (1) the existence of a current disability; (2) in service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and a disease or injury incurred or aggravated during active service. Coburn v. Nicholson, 19 Vet. App. 427 (2006); Disabled American Veterans v. Secretary of Veterans Affairs, 419 F.3d 1317, 1318 (Fed. Cir. 2005); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). If the veteran fails to demonstrate any one element, denial of service connection will result. Disabled Am. Veterans, supra; Coburn, supra. Although the veteran is competent to testify as to his inservice experiences and symptoms, where the determinative issue involves a question of medical diagnosis or causation, only individuals possessing specialized medical training and knowledge are competent to render such an opinion. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997). Thus, any lay personal opinion that the disability at issue began in service or that it is otherwise related to service is not a sufficient basis for awarding service connection. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis The Board has thoroughly reviewed all the evidence in the veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail the evidence submitted by the veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). A thorough review of the veteran's service medical records indicates that the veteran reported right knee pain after playing football in October of 1969. Examination revealed a small effusion and pain on external rotation. An orthopedic consultation was ordered. During that consultation, x-rays were conducted and physician notes indicated "no orthopedic pathology." In February of 1970 the veteran returned with right knee pain and was prescribed ACE bandages. The service medical records show no right knee treatment after this date. The veteran underwent a physical examination prior to separation from the military in May of 1971. That physical revealed no abnormalities of the right knee. A review of the veteran's post-military service medical records indicates that the veteran sought treatment in September 1972 for pain in the right knee incurred after an injury at work. The veteran was diagnosed with a rupture of the lateral meniscus and had right knee surgery. VA conducted a joints examination of the veteran's right knee in January 2006. The veteran's claims file and medical records were reviewed in conjunction with the physical examination. The examiner stated "The patient's right knee condition is less likely than not related to military service. The patient's medical records indicated that he tore his meniscus in a job related injury. The torn meniscus and subsequent surgery are the likely etiology of the patient developing degenerative joint disease." A hearing was held before the undersigned in June 2007. The veteran testified to injuring his right knee while playing intramural softball in 1969. The veteran testified that he went to the corpsman on the ship, was given some compresses and told that it was probably just a strain. He claimed that he was instructed not to worry about it. The veteran denied that x-rays or other studies were conducted. In this case, the only medical opinion on the issue of causation before the Board is that of the VA examiner who opined that it was less likely than not that the veteran's current degenerative joint disease was related to military service. The examiner went on to offer the opinion that medical records it was more likely that the veteran's 1972 torn meniscus and resultant surgery was the cause of degenerative joint disease of the right knee. No medical evidence has been provided which contradicts this opinion. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) [the Board is prohibited from exercising its own independent judgment to resolve medical questions]. The representative of the veteran argued that the VA examination of January 2006 was not conducted by a specialist in orthopedics. (Transcript, p. 7). Although this statement is accurate, the veteran has not identified any evidence that rebuts the VA examiner's presumed competency. Hilkert v. West, 12 Vet. App. 145, 151 (1999) (holding that "the Board implicitly accept[s] ... competency by accepting and relying upon the conclusions in [a medical] opinion" and that "[a] appellant bears the burden of persuasion on appeals [sic] to this Court to show that such reliance was in error."). The appellant simply implies, without citing to any supporting medical evidence, that a medical doctor with board certification in occupational medicine is not competent to offer an opinion regarding causation. Such a conclusory and wholly unsupported statement cannot overcome the presumption of competency. The veteran and his representative have not submitted any contrary medical evidence to the January 2006 opinion. There is nothing in the examination report that would indicate that either the physician's assistant or the physician is incompetent to render a medical opinion. Based upon the above factors, the Board finds that a preponderance of the evidence is against a finding of service connection for disability of the right knee, to include arthritis. ORDER Entitlement to service connection for disability of the right knee is denied. ____________________________________________ M. Sabulsky Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs