Citation Nr: 0004399 Decision Date: 02/18/00 Archive Date: 02/23/00 DOCKET NO. 97-23 782 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for bilateral knee pain. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Gallagher, Counsel INTRODUCTION The veteran served on active duty from June 1950 to January 1955. This matter comes before the Board of Veterans' Appeals (Board) from a December 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied service connection for bilateral knee pain. The Board notes that the veteran also perfected an appeal to the Board of the denial of a waiver of overpayment of nonservice-connected pension benefits. However, before the case was sent to the Board, the RO granted the waiver and notified the veteran of this action in a May 1997 letter. Therefore, this claim is no longer before the Board on appeal. FINDINGS OF FACT 1. The veteran was seen on one occasion in service in August 1954 for complaints of right knee pain and "locking" with swelling for three days; examination revealed no swelling and an apparently stable joint. 2. The veteran was diagnosed with degenerative joint disease of the knees in 1988. 3. No medical evidence has been presented or secured to render plausible a claim that current degenerative joint disease of the knees or other disability manifested by bilateral knee pain is the result of a disease or injury incurred in active service including a complaint of right knee pain in August 1954. CONCLUSION OF LAW The claim for service connection for bilateral knee pain is not well grounded, and therefore there is no statutory duty to assist the appellant in developing facts pertinent to this claim. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION In general, establishing service connection for a disability requires the existence of a current disability and a relationship or connection between that disability and a disease or injury incurred in service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1999); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Alternatively, under 38 C.F.R. § 3.303(b), service connection may be awarded for a "chronic" condition when (1) a chronic disease manifests itself in service and is identified as such in service (or within the presumption period under 38 C.F.R. § 3.307) and the veteran presently has the same condition; or (2) a disease manifests itself during service (or during the presumptive period) but is not identified until later, there is a showing of continuity of symptomatology after discharge, and medical evidence relates the symptomatology to the veteran's present condition. Rose v. West, 11 Vet. App. 169, 171 (1998); see Savage v. Gober, 10 Vet. App. 488, 495-98 (1997). To establish a well grounded claim for service connection, a claimant has the burden to submit competent evidence to support each element of the claim, e.g., for direct service connection, the existence of a current disability; an injury sustained or disease contracted in service; and a link or nexus between the two. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Alternatively, the third Caluza element can be satisfied under 38 CFR 3.303(b) by evidence of continuity of symptomatology and medical or, in certain circumstances, lay evidence of a nexus between the present disability and the symptomatology. See Savage, 10 Vet. App. at 495. Evidence submitted in support of a claim "must . . . be accepted as true for the purpose of determining whether the claim is well grounded . . . [except] when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion." King v. Brown, 5 Vet. App. 19, 21 (1993). Generally, the Board should consider only the evidence that is or may be favorable to the claim in deciding whether a claim is well grounded. See Arms v. West, 12 Vet. App. 188, 195 (1999) (noting that generally "only the evidence in support of the claim is to be considered and generally a presumption of credibility attaches to that evidence in order to decide whether or not any VA claimant has sustained the claimant's burden of submitting a well-grounded claim under section 5107(a)") (emphasis in original). In this case, service medical records reflect that the veteran was seen on one occasion in service in August 1954 for complaints of right knee pain and "locking" with swelling for three days. He stated that he had been injured three years earlier when a horse fell on him. Examination revealed no swelling and an apparently stable joint, and the veteran was furnished with an Ace bandage. The veteran has stated that he hurt his knees when he was hit by a car in service. Service medical records reflect that the veteran was hit by a car in October 1952 but no complaints or findings pertaining to that accident are relevant to an injury of the knees. On a December 1983 VA neurologic examination, the veteran complained of "leg weakness", referring to some unsteadiness on his feet and difficulty getting around. The examiner diagnosed mild cerebellar ataxia of unknown case. On a December 1988 VA examination, the examiner diagnosed degenerative joint disease of the knees, noting that the veteran had pain in both knees for several years which had been gradually progressing and was associated with weakness of the knee joints, popping and grinding sensations, and occasional swelling of the knees. The examiner noted that these symptoms had required the veteran to start wearing knee braces. The examiner noted that his symptoms were progressive and that he had given no history of knee trauma. A December 1988 VA x-ray report pertaining to the knees reflected normal findings. On a VA examination conducted in April 1990, the examiner noted that a history of bilateral knee pain which was worse with bad weather and activity. The veteran reported no specific trauma or history of injury. He reported occasional swelling. On physical examination, the examiner noted range of motion in both knees from 0 to 120 degrees. There was no effusion and no instability to varus, valgus or AP stress. There was mild to moderate patellofemoral crepitation and no impingement sign. The diagnosis was bilateral knee pain. More recent VA outpatient treatment reports, dated from 1997 to 1999, reflect complaints of knee pain and diagnoses of degenerative joint disease, abnormal gait, and functional gait disorder. No medical evidence has been presented or secured to render plausible a claim that current degenerative joint disease of the knees or other disability manifested by bilateral knee pain is the result of a disease or injury incurred in active service, including a complaint of right knee pain in August 1954. Because there is no evidence linking any current diagnosis to a disease or injury incurred in service, the Board concludes that the claim for service connection for bilateral knee pain is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). Although the RO did not specifically state that it denied the claim for service connection for bilateral knee pain on the basis that it was not well grounded, the Board concludes that the appellant is not prejudiced by the Board's denial of the claim on this basis because, in assuming that the claim was well grounded, the RO accorded the appellant greater consideration than the claim warranted under the circumstances. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993); see Edenfield v. Brown, 8 Vet. App 384 (1995) (en banc) (when the Board decision disallowed a claim on the merits where the Court finds the claim to be not well grounded, the appropriate remedy is to affirm, rather than vacate, the Board's decision, on the basis of nonprejudicial error); VAOPGCPREC 16-92 at 7-10 (July 24, 1992). Where a claim is not well grounded, VA does not have a statutory duty to assist a claimant in developing facts pertinent to the claim, but VA may be obligated under 38 U.S.C.A. § 5103(a) to advise a claimant of evidence needed to complete his application. This obligation depends on the particular facts of the case and the extent to which the Secretary has advised the claimant of the evidence necessary to be submitted with a VA benefits claim. Robinette v. Brown, 8 Vet. App. 69, 78 (1995). Here, unlike the situation in Robinette, the appellant has not put the VA on notice of the existence of any specific, particular piece of evidence that, if submitted, could make the claim for service connection for bilateral knee pain well grounded. See also Epps v. Brown, 9 Vet. App. 341 (1996). Accordingly, the Board concludes that VA did not fail to meet its obligations under 38 U.S.C.A. § 5103(a) (West 1991). ORDER BETTINA S. CALLAWAY Member, Board of Veterans' Appeals