Citation Nr: 0708833 Decision Date: 03/26/07 Archive Date: 04/09/07 DOCKET NO. 05-23 411 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for residuals of a right knee injury. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The veteran had active service from September 1984 to March 1994. He served in Southwest Asia from January to May 1991 and from March to August 1993. This matter comes before the Board of Veterans' Appeals (Board) from an April 2005 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The veteran was scheduled for a travel board hearing in December 2005 but in November 2005 he cancelled that hearing. He did not request that the hearing be rescheduled. See 38 C.F.R. § 20.704(d) (2006). FINDING OF FACT Any right knee injury sustained by the veteran in service was acute and transitory, and resolved without chronic residual disability. CONCLUSION OF LAW Residuals of a right knee injury were not incurred in or aggravated during service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2006). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. But, VA is not required to provide a predecisional adjudication of what evidence is needed to grant a claim because "the duty to notify deals with evidence gathering, not analysis of already gathered evidence" nor is VA required to provide notice "upon receipt of every piece of evidence or information." Locklear v. Nicholson, 20 Vet. App. 410, 415 (2006). Duty to Notify 38 U.S.C.A. § 5103(a) requires that VA notify a claimant of the information and evidence needed to substantiate a claim, which information and evidence VA will obtain, and which the claimant is expected to provide. VA must request any evidence in a claimant's possession that pertains to the claim. 38 C.F.R. § 3.159. The VCAA notice was intended to be provided before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, a timing defect may be cured by compliance with proper remedial measures which are the issuance of a compliant VCAA notice followed by readjudication (by either a rating decision or a Statement of the Case (SOC) or Supplemental SOC (SSOC)), thereby providing a claimant a meaningful opportunity to participate in the claim processing. Prickett v. Nicholson, 20 Vet. App. 370, 376-77 (2006) (citing Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473, 492 (2006) and Pelegrini v. Principi, 18 Vet. App. 112, 122-24 (2004)). The veteran was provided with pre-adjudication VCAA notice by letter, dated in February 2005. He was notified of the evidence needed to substantiate a claim of service connection, namely, evidence of an injury, disease, or event causing an injury or disease during service; evidence of current disability; and evidence of a relationship between the current disability and the injury, disease, or event causing an injury or disease during service. The VCAA notice requirements apply to all five elements of a service connection claim which are: 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Here, the VCAA notice did not cite the law and regulations governing effective dates or increased ratings. If a service connection claim is denied, the rating and effective date matters are moot but if granted this matter would be initially addressed by the RO. The same is true with respect to the assignment of any disability rating following a grant of service connection. Also, after VCAA notice is given as to an original service connection claim, further VCAA notice of "downstream" issues, e.g., an initial rating or effective date, is not required. See VAOPGCPREC 8-2003 (Dec. 22, 2003). So, the Board finds no prejudice to the veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Further, because the claim for service connection is denied, there is no possibility that downstream rating or effective date issues will be raised. So, there is no prejudice to the veteran in this regard. As for content of the VCAA notice, the documents substantially comply with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence), of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); and, of Pelegrini, supra (38 C.F.R. § 3.159 notice). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claims. In this case not all of the veteran's service medical records (SMRs) are available. He has been made aware of this and has been forwarded copies of the available SMRs. Also, his VA treatment records are on file. There is no indication that he has received postservice private clinical treatment for right knee disability. Lastly, because there is no evidence that his current right knee disability is of service origin and the evidence indicates that it is of postservice origin, no VA nexus examination has been provided. Generally see McLendon v. Nicholson, 20 Vet. App. 70, 81 - 83 (2006) (as amended August 7, 2006); see also 38 U.S.C. § 5103A(d)(2) (West 2002) and 38 C.F.R. § 3.159(c)(4)(i) (2006). As there is no indication of the existence of additional evidence to substantiate the claims, the Board concludes that there has been compliance with the VCAA notice and duty-to- assist provisions. REASONS AND BASES FOR FINDING AND CONCLUSION Legal Criteria For service connection to be granted for any disability, it is required that the facts, as shown by the evidence, establish that a particular injury or disease resulting in chronic disability was incurred in service, or, if pre- existing service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the noted inservice condition is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303. Also, certain chronic diseases, 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. Service connection is also possible for any disease initially diagnosed after discharge from service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires that there be (1) medical evidence of a 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 inservice disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Background The veteran's DD 214 confirms that he twice served in Southwest Asia. Much of the veteran's SMRs are unavailable, only those in 1993 and 1994 are on file. An additional search revealed no SMRs. The veteran maintains that he hyper-extended his right on one occasion during his tour of military service. He has not provided details concerning the nature or severity of this injury. The available SMRs are negative regarding his right knee. The veteran has not indicated that any physicians had stated that any current right knee disability was due to an inservice injury or is otherwise of service origin. VA outpatient treatment (VAOPT) records from show that in January 2005 the veteran reported having had right knee pain for more than one year. He denied having had right knee injury or trauma. In February 2005 the diagnosis was right knee arthralgia. Also in that month, he reported having had right knee problems while incarcerated in a penitentiary and thought he might have injured it while getting in and out of high bunks. Reportedly, he had had a hyperextension of that while during military service in 1985. His knee had not been X-rayed and he had only taken aspirin for it in the past. In March 2005 an X-ray of his right tibia and fibula revealed mild calcified periosteal reaction on the medial upper tibia shaft, the etiology and clinical significance of which were uncertain. The X-ray was otherwise normal. In March 2005 he again complained of right knee pain and the diagnosis was right knee arthralgia. Analysis Where the SMRs are unavailable, VA has a heightened duty to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The veteran's DD 214 confirms that he twice served overseas during the Persian Gulf Conflict. While most of the SMRs are not available, he has not indicated that he either sought or received right knee treatment during active service. Moreover, the postservice VAOPT records noted that he allegedly had a right knee hyperextension in 1985, which predates the Persian Gulf Conflict and, so, there is no possibility that a right knee disability could have been incurred in combat. The medical evidence shows that since 2005 the veteran has had right knee pain, diagnosed as arthralgia. This establishes that he has a current disability. Even assuming, in light of the absence of most of his SMRs, without conceding, that he had a right knee hyperextension in 1985, during service, when he first complained of right knee pain in 2005 he indicated that it had existed for only more than one year. He did not indicate that it was of many years duration and shortly after his initial complaint, he related to a possible postservice injury during incarceration which was apparently from December 2001 until November 2004. The Board observes that the veteran made no mention of a right knee condition when he submitted his initial claim for VA compensation benefits in March 1994. Further, no complaints, findings, or other references to a right knee disorder were noted when the veteran was accorded a VA examination in November 1995. So, even if he had a right knee injury during service, the evidence does not suggest that it was anything other than acute and transitory. On the question of the medical nexus, the only supporting evidence is the veteran's apparent belief that there is a nexus between his inservice right knee injury and current right knee symptoms. This assertion, however, is unsupported by medical evidence and does not account for the lapse of a number of years after service without medical complaint. Evidence of a prolonged period without medical complaint can be considered along with the availability of other medical records and other relevant facts. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Where as here, the determinative issue involves medical causation or a medical diagnosis, competent medical evidence of a nexus or relationship between the post-service diagnosis and service is required to support the claim. The veteran is a lay person and, so, is not competent to render a medical opinion as to the required nexus, which is essentially a medical determination. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). For this reason, the Board rejects the veteran's personal opinion as favorable evidence of a nexus between the events in service and the current skin symptoms. In sum, there is no competent medical nexus evidence of a nexus between the veteran's current right knee arthralgia and his military service. As the Board may consider only competent medical evidence to support its findings, and for the reasons expressed, there is no competent medical evidence favorable to the claim of service connection for residuals of a right knee injury as to the required nexus element, the preponderance of the evidence is against the claim, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER Service connection for residuals of a right knee injury is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs