Citation Nr: 0725897 Decision Date: 08/20/07 Archive Date: 08/29/07 DOCKET NO. 05-36 375 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Hallie E. Brokowsky INTRODUCTION The veteran had active service from April 1965 to June 1965. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a January 2005 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Phoenix, Arizona. FINDING OF FACT There is no competent medical nexus evidence of record indicating the veteran's right knee disorder is causally or etiologically related to his military service. CONCLUSION OF LAW A right knee disorder was not incurred or aggravated during active service. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113, 5103A, 5107(b), 5108 (West 2005); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306, 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 August 2004 and December 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, a March 2006 letter 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 private post-service treatment. Additionally, the claims file contains the veteran's own statements in support of his claim, including a transcript of the veteran's testimony at a hearing before the undersigned Veterans Law Judge (VLJ). 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 right knee disorder was present prior to service. The record discloses that the veteran's induction examination in April 1965 noted that the veteran had prominence of the tibial tuberosity, bilateral, which was nontender. His associated Report of Medical History indicated that the veteran had apparent Osgood- Schlatter's disease, without residuals. A subsequent x-ray report, several days later, indicated that the veteran had a history right leg pain and that x-rays showed segmentation of the tibial tubercle which, when correlated with the physical findings, resulted in a diagnosis of Osgood-Schlatter's disease. 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 a 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). As the veteran's right knee disorder, with prominence of the tibial tuberosity, was clearly noted at the veteran's entrance into service, the Board concludes, accordingly, that the presumption of soundness at entrance does not attach. In order for service connection to be established for a right knee disorder, it must now be determined whether the record establishes that the pre- existing right knee disorder underwent increase in severity beyond the normal progression of the disability during service. The veteran's service medical records show that the veteran complained of right knee pain on several occasions in May 1965. His service medical records show that the veteran complained of pain at the right anterior knee and over the tibial tubercle Treatment notes indicate that the veteran reported a history of right knee pain of the tibial tubercle at age 13, and the veteran further indicated that he had intermittent recurrence of his symptoms with exercise since that time. This is probatively significant and given a lot of weight and credibility because this was at a time contemporaneous to the alleged incident in question. See, e.g., Struck v. Brown, 9 Vet. App. 145, 155-56 (1996). The final diagnosis was osteochondrosis of the right knee, existed prior to service, not incurred or aggravated during service. In view of the foregoing, the Board finds that, with regard to a right knee disorder, the service medical records document that the veteran was diagnosed with Osgood- Schlatter's disease upon entrance to service, and treated for complaints of related right knee pain during his service. See Jensen v. Brown, 19 F.3d 1413 (Fed. Cir. 1994) and Hunt v. Derwinski, 1 Vet. App. 292 (1991) (temporary or intermittent flare-ups during service of a preexisting injury or disease are insufficient to be considered aggravation in service unless the underlying condition, as contrasted to symptoms, is worsened). However, there is no objective evidence of continuance of symptomatology during the years following the veteran's discharge from service so as to establish chronic aggravation. According to private treatment records from P. S., M.D., the veteran was not treated again for his right knee until February 1989, nearly 24 years after his service in the military had concluded. See Savage, supra (requiring medical evidence of chronicity and continuity of symptomatology). Likewise, at that time, the veteran reported a history of a right knee injury while playing football in high school, as well as a 1974 injury to the right knee in a motorcycle accident. See 38 C.F.R. § 3.303(b) (subsequent, isolated manifestations of a chronic disorder are not service connected where they are clearly attributable to intercurrent causes). In short, there currently is no persuasive medical nexus evidence of record indicating the veteran's current right knee disorder was incurred or aggravated during or as a result of his service in the military. See Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) ("In order for service connection for a particular disability to be granted, a claimant must establish he or she has that disability and that there is 'a relationship between the disability and an injury or disease incurred in service or some other manifestation of the disability during service.'" Citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). The only evidence portending that the veteran's right knee disorder is in any way related to his service in the military comes from him personally. And 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 Service connection for a right knee disability is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs