Citation Nr: 0714602 Decision Date: 05/16/07 Archive Date: 06/01/07 DOCKET NO. 02-20 237 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Hallie E. Brokowsky INTRODUCTION The veteran had active service from May 1970 to April 1972. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a March 2002 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Chicago, Illinois. This case was previously before the Board in October 2004, wherein the veteran's claim was remanded to ensure due process and for additional development of the record. The case has been returned to the Board for appellate consideration. FINDING OF FACT Left knee arthritis was initially demonstrated years after service, and there is no competent medical nexus evidence of record indicating the veteran has a left knee disability that is causally or etiologically related to his military service. CONCLUSION OF LAW A left knee disability, arthritis, was not incurred in, or aggravated by, active service, and may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (West 2005); 38 C.F.R. §§ 3.1, 3.102, 3.159, 3.301, 3.303, 3.304, 3.307, 3.309 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2006). Notice Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2005); 38 C.F.R. § 3.159(b) (2006); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform 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; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005); rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman holds that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, 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. Upon receipt of an application for "service connection," therefore, the Department of Veterans Affairs (VA) is required 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. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In the present case, VA satisfied its duty to notify by means of October 2001 and November 2004 letters from the agency of original jurisdiction (AOJ) to the appellant. The letters informed the appellant of what evidence was required to substantiate his claim for service connection and of his and VA's respective duties for obtaining evidence, as well as requested that the veteran submit any additional evidence in his possession pertaining to his claim. In addition, the April 2006 supplemental statement of the case (SSOC) explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of service connection, in compliance with Dingess/Hartman. Nevertheless, because the instant decision denies the veteran's claim for service connection, no disability rating or effective date will be assigned. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the U.S. Court of Appeals for Veterans Claims held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 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 the present case, the unfavorable AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. 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. Duty to Assist With regard to the duty to assist, the claims file contains the veteran's service medical records, and reports of VA post-service treatment and VA examinations. Additionally, the claims file contains the veteran's own statements in support of his claim. The Board has carefully reviewed such statements and perused the medical records for references to additional treatment reports not of record for the time period at issue, but has found nothing to suggest that there is any outstanding evidence with respect to the veteran's claim. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the veteran in developing the facts pertinent to his claim. Essentially, all available evidence that could substantiate the claim has been obtained. There is no indication in the file that there are additional relevant records that have not yet been obtained. Legal Criteria A veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection also is permissible for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases will be presumed to have been incurred or aggravated in service if manifested to a compensable degree within one year after service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by probative evidence to the contrary. If there is no evidence of a chronic condition during service, or during an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim. See 38 C.F.R. § 3.303(b). Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. See Savage v. Gober, 10 Vet. App. 488, 495-498 (1997). A veteran is considered to be in sound health when examined, accepted, and enrolled for service - except as to defects, infirmities, or disorders noted at the time of his entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior to service, and was not aggravated by such service. See 38 U.S.C.A. § 1111. In a precedent opinion, VAOPGCPREC 3-2003 (July 16, 2003), VA's General Counsel discussed the requirements for rebutting the presumption of sound condition when entering the military under 38 U.S.C. § 1111 and 38 C.F.R. § 3.304. The General Counsel held that, to rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The veteran claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. The provisions of 38 C.F.R. § 3.304(b) were amended effective May 4, 2005 (See 70 Fed. Reg. 23029 (May 4, 2005)) and are now consistent with 38 U.S.C.A. § 1111. VA's General Counsel went on to hold that the provisions of 38 C.F.R. § 3.306(b), providing that aggravation may not be conceded unless the pre-existing condition increased in severity during service, are not inconsistent with 38 U.S.C. § 1111. Section 3.306(b) properly implements 38 U.S.C. § 1153, which provides that a pre-existing injury or disease will be presumed to have been aggravated in service in cases where there was an increase in disability during service. The requirement of an increase in disability in 38 C.F.R. § 3.306(b) applies only to determinations concerning the presumption of aggravation under 38 U.S.C. § 1153 and does not apply to determinations concerning the presumption of sound condition under 38 U.S.C. § 1111. 38 U.S.C. § 1111 requires VA to bear the burden of showing the absence of aggravation. Congenital or developmental defects, refractive error of the eye, personality disorders and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303(c). Analysis The initial question is whether a left knee disorder was present prior to service. The record discloses that the veteran completed a report of medical history in conjunction with his induction examination in May 1970. The veteran indicated that he had, or had had, a history of "trick" or locked knee, as well as swollen or painful joints. A physician noted that his left knee was bruised and that the veteran reported he occasionally had water on the knee. Clinical evaluation of the lower extremities was normal. In Crowe v. Brown, 7 Vet. App. 238 (1994), the Court indicated that the presumption of soundness attaches only where there has been an induction medical examination, and where a disability for which service connection is sought was not detected at the time of such examination. The Court noted that the regulation provides expressly that the term "noted" denotes only such conditions as are recorded in examination reports, and that history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions. 38 C.F.R. § 3.304(b)(1) (2006). The Board concludes, accordingly, that the presumption of soundness at entrance attaches. This presumption is not rebutted by clear and unmistakable evidence of record that the veteran had a left knee disability prior to service that was not aggravated by service. The service medical records show that the veteran complained of a swollen and tender left knee in June 1970, after twisting his knee two days earlier. Physical examination showed moderate swelling and tenderness, without laxity of the ligaments. X-rays were normal. A cast was applied for a week, after which, there was no swelling or effusion, but mild anterior-posterior laxity. The Board further notes that the veteran did not make any complaints related to his left knee thereafter during service. Additionally, clinical examination for separation from service, in April 1972, did not demonstrate any left knee problems. The veteran reported that he was in "excellent" condition. This is probatively significant and given a lot of weight and credibility because this was at a time contemporaneous to the alleged incidents in question. See, e.g., Struck v. Brown, 9 Vet. App. 145, 155-56 (1996). In view of the foregoing, the Board finds that the service medical records, at most, document only that the veteran experienced an acute episode of left knee symptoms due to a twisting injury during service. Consistent with the finding of an acute episode of left knee symptoms during service, there is no objective evidence of continuance of symptomatology during the years following the veteran's discharge from service so as to establish chronicity. See Savage, supra (requiring medical evidence of chronicity and continuity of symptomatology). In this regard, it is noted that a September 1984 VA hospitalization summary indicates that the veteran reported a history of left knee surgery in 1970 secondary to a football injury, but that his left knee was asymptomatic. In November and December 1990, the veteran reported a history of a left knee injury and cast during his military service, but did not complain of any left knee symptoms. Furthermore, the Board points out that the veteran has not submitted any evidence of treatment for a left knee disorder since his military service. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street. If a veteran wants help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."). Arthritis of the left knee was demonstrated on X-ray examination in March 2002, decades after service. In the absence of demonstration of continuity of symptomatology, this is too remote from service to be reasonably related to service. This is also clearly beyond the one year period for presumptive service connection. Moreover, on VA examination in February 2002, it was noted that the veteran had arthritis in both knees, albeit the left greater than the right. While the February 2002 VA examiner noted a history of left knee injury and infection, no nexus opinion was proffered in this regard. In this regard, it is significant to note that the February 2002 VA examiner noted that the veteran reported a left knee infection in 1978 or 1979 following back surgery. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (evidence that is simply information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute competent medical evidence to establish entitlement to service connection). See also Wood v. Derwinski, 1 Vet. App. 190, 192 (1991) (the Board is not required to accept unsubstantiated or ambiguous medical opinions as to the origin of the veteran's disorder). The only evidence portending that the veteran's left knee disability is in any way related to his service in the military comes from him personally. As a layman, he simply does not have the necessary medical training and/or expertise to determine the cause of this condition. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). See, too, Savage v. Gober 10 Vet. App. at 495-498, indicating that, even in situations of continuity of symptomatology after service, there still must be medical evidence relating the current condition at issue to that symptomatology. Id. Because of this, his allegations, alone, have no probative value without medical evidence substantiating them. While an accurate determination of etiology is not a condition precedent to granting service connection, nor is definite etiology or obvious etiology, there must at least be a sufficiently definitive opinion on etiology to rise above the level of pure equivocality. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Winsett v. West, 11 Vet. App. 420, 424 (1998). Here, there is not, mostly evidence against the claim, so this claim must be denied because the preponderance of the evidence is unfavorable. See 38 C.F.R. § 3.102. ORDER Entitlement to service connection for a left knee disability is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs