Citation Nr: 0000860 Decision Date: 01/11/00 Archive Date: 01/27/00 DOCKET NO. 98-12 337 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a right knee condition. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W. Sampson, Associate Counsel INTRODUCTION The veteran's active military service extended from June 1983 to June 1986 and from January 1991 to August 1991. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a September 1997 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama which, in part, denied service connection for a right knee condition. This case was previously before the Board in August 1999 when it was remanded for a hearing as requested by the veteran. In October 1999, a hearing was held before Bettina S. Callaway, who is the Board member making this decision and who was designated by the Chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 1991 & Supp. 1999). FINDINGS OF FACT 1. There is no competent evidence of current disability of the right knee. 2. The veteran has not presented a plausible claim for service connection for a right knee condition. CONCLUSION OF LAW The appellant has not presented a well-grounded claim for service connection for a right knee condition, and therefore there is no statutory duty to assist the appellant in developing facts pertinent to this claim. 38 U.S.C.A. §§ 101(16), 1131, 5107(a) (West 1991); 38 C.F.R. § 3.303(b) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Preliminary Matters The veteran was originally denied service connection for impairment of the knees and back strain in an October 1996 rating decision. In the September 1997 rating decision on appeal, the RO continued the denials of service connection for a right knee condition and back strain, and granted service connection for a left knee disorder at 10 percent disabling. In July 1999 written arguments to the Board, the veteran's accredited representative argues that the veteran properly appealed the issue of entitlement to service connection for a back condition from the October 1996 rating decision. He also argues that although the veteran disagreed with the level of disability assigned to his left knee in the September 1997 rating decision, no SOC was ever issued. Appellate review is initiated by a notice of disagreement and completed by a substantive appeal, VA Form 9, filed after a statement of the case is furnished to the appellant. 38 U.S.C.A. § 7105(a) (West 1991); 38 C.F.R. § 20.200 (1999). The notice of disagreement (NOD) must be filed within one year from the date of mailing of the notice of the determination. 38 U.S.C.A. § 7105(b)(1)(West 1991); 38 C.F.R. § 20.302(a)(1999). Once a timely NOD is filed, the RO is required to "take such development or review such action as it deems proper" of the RO determinations with which the claimant disagrees, and if the benefits sought are not granted or the NOD withdrawn, the RO must issue a statement of the case (SOC). See 38 U.S.C.A. § 7105(d)(1). The SOC must contain a summary of the pertinent evidence, citation of pertinent laws and regulations, a decision on each issue, and reasons and bases for the decisions, including a discussion of how the laws affected the decision. See 38 U.S.C.A. § 7105(d)(A)-(C). The substantive appeal must be filed within 60 days from the date the SOC is mailed, or within the remainder of the one-year period from the date of mailing of the notice of determination, whichever occurs later. 38 U.S.C.A. § 7105(d)(3) (West 1991); 38 C.F.R. § 20.302(b)(1999). The NOD and substantive appeal must be filed with the VA office from which the claimant received notice of the determination being appealed, i.e., the agency of original jurisdiction (AOJ). 38 C.F.R. § 20.300. In the absence of a properly perfected appeal, the Board is without jurisdiction to determine the merits of an issue. 38 U.S.C.A. §§ 7105, 7108; Roy v. Brown, 5 Vet. App. 554 (1993). In this case, with the RO's notice to the veteran of the October 1996 and September 1997 rating decisions, the veteran was informed that he could appeal by filing an NOD in writing, "telling this office that you wish to appeal." In February 1998, the veteran requested that his service- connected disability be increased, and that his right knee was giving him problems and should be rated "conjunct" to the left knee. This was treated by the RO as a claim for an increase. In March 1998, he wrote the RO stating, "I disagree with VA that my [right] knee is not service connected. It is [and] at any rate it is worse because of my [left] knee." This was accepted as an NOD with the September 1997 rating decision. An SOC was issued in March 1998 on the issue of entitlement to service connection for a right knee condition. In March 1998, the veteran telephoned the RO to inquire why his claim for an increase in "left leg" was not part of the SOC. In May 1998, the RO issued a rating decision confirming and continuing the 10 percent evaluation for his service-connected left knee disability. In June 1998, he wrote stating: "I wish to file a notice of disagreement with [VA] rating decision dated [May 1998]." Although an SOC was issued on this issue, the veteran failed to file any substantive appeal within the prescribed period. The veteran's representative specifically argues that with regard to the denial of service connection for a back disorder, the veteran filed an NOD on March 17, 1997. The document referenced by the representative states that he had been denied service connection for impairment of the knees and back strain because of failure to report for examination. He wished to reschedule and continue his claim. The Board finds no support for the contention that this represents an NOD. There is nothing that can be construed as a disagreement with a rating decision, but merely a wish to continue the claim. With regard to the left knee, the representative contends that in a February 1998 statement, the veteran "voiced disagreement with the 10 percent evaluation assigned." Again, the Board can find no support for the argument that this represents a disagreement. The veteran states plainly his request that his service-connected disability be increased because of a second operation he was going to have. There is nothing that can be construed as disagreement with the level of disability assigned in the September 1997 rating decision. Further support for this is found in a June 1998 letter to the RO wherein the veteran stated unambiguously that he wished to file a notice of disagreement with a rating decision dated May 1998. The documents referenced by the representative are plain on their face with regard to the veteran's intentions and without ambiguity. The only issue properly before the Board at this time is entitlement to service connection for a right knee condition. Service Connection and the Requirement of Submitting a Well Grounded Claim Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 101(16), 1131 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1999). The law provides that "a person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a) (West 1991). Establishing a well grounded claim for service connection for a particular disability requires more than an allegation that the disability had its onset in service or is service-connected; it requires evidence relevant to the requirements for service connection and of sufficient weight to make the claim plausible and capable of substantiation. See Franko v. Brown, 4 Vet. App. 502, 505 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, 610 (1992); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The three elements of a "well grounded" claim are: (1) evidence of a current disability as provided by a medical diagnosis; (2) evidence of incurrence or aggravation of a disease or injury in service as provided by either lay or medical evidence, as the situation dictates; and, (3) a nexus, or link, between the inservice disease or injury and the current disability as provided by competent medical evidence. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1997); see also 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). Alternatively, the third Caluza element can be satisfied under 38 CFR 3.303(b) (1999) 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 v. Gober, 10 Vet. App. 488, 495 (1997). Generally, competent medical evidence is required to meet each of the three elements. However, for the second element the kind of evidence needed to make a claim well grounded depends upon the types of issues presented by a claim. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). For some factual issues, such as the occurrence of an injury, competent lay evidence may be sufficient. However, where the claim involves issues of medical fact, such as medical causation or medical diagnoses, competent medical evidence is required. Id. at 93. Lay evidence is also acceptable to show incurrence in service if the veteran was engaged in combat and the evidence is consistent with the circumstances, conditions and hardships of such service, even though there is no official record of such incurrence. 38 U.S.C.A. § 1154 (West 1991); 38 C.F.R. § 3.304(d) (1999). Service connection may also be granted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (1999). A claim for secondary service connection, like all claims, must be well grounded. 38 U.S.C.A. § 5107(a); Proscelle v. Derwinski, 2 Vet. App. 629, 633 (1992). Similar to the Caluza analysis above, the veteran must provide evidence of (1) a current disability, and (2) a link or nexus between the current disability and a service connected disability, as shown by competent lay or medical evidence as the situation warrants. See Locher v. Brown, 9 Vet. App. 535 (1997), Reiber v. Brown, 7 Vet. App. 513, 516 (1995). In this regard, the Board also notes that the veteran may be compensated for an increase in a nonservice-connected disability which is the proximate cause of a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). Where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is plausible or possible is required. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The Board finds that medical evidence is needed to provide a link between any current diagnosis of a right knee disorder and his service-connected left knee disability. Factual Background The service medical records show several treatments for complaints of knee pain. In February 1986, the veteran was treated for complaints of knee pain "on and off" for several months. On examination, he had pain on palpation, but no edema or redness. He had full range of motion with slight discomfort. The assessment was of "possible arthritic pain." In October 1990, and again in March 1991 he sustained injuries to his left knee which was diagnosed as "internal derangement." In April 1991, he again complained of pain in the knees, worse on the left than the right, and decreasing since his return from the Persian Gulf. The diagnosis was sprain of both knees. A hospitalization report, also dated in April 1991 shows a diagnosis of bilateral retropatellar pain syndrome. There is no discharge examination in the claims file. Although the RO contacted the National Personnel Records Center and the Bureau of Naval Personnel, no additional service medical records were available. Following service, private medical records from Dr. E. Dyas, M.D., show treatment in February 1993 for problems with the veteran's left knee only. Private medical records from Dr. M. McDaniel, M.D., also show treatment for pain in his left knee, but no treatment for the right knee. In February 1997, the veteran had a left lateral meniscectomy on his left knee. Records of his treatment from Dr. R. McGinley, M.D., were associated with the claims file and show treatment from January to March 1997 for his left knee only. In May 1997, the veteran was provided a VA compensation and pension examination of his joints. Examination of the right knee was unremarkable and noted to be "essentially asymptomatic," although the examiner stated that he thought the veteran would have problems with his right knee with prolonged periods of weight bearing as well as repetitive squatting, stooping or having to go up and down stairs or steps. X-ray examination of the right knee was "normal." Another VA examination of the joints was performed in March 1998. The veteran complained of intermittent pain and swelling of the right knee. He stated that he had recently been seen by a private physician and was told he may have some cartilage damage. He was recently started on indomethacin for his right knee problems. The diagnosis was "[r]ecurrent pain and swelling of the right knee by history - examination unremarkable at his time." X-ray examination was "normal." The examiner added that he did not think there was a reasonable, medical probability that his right knee was secondary to his left knee. Private medical records from E. Dyas, M.D., show complaints of pain and swelling in the right knee in February 1998. He was noted to have effusion and was tender at the medial joint line although it is unclear from the record whether this was actually his left knee. X-rays were noted to be "okay," and he was placed on Indocin. In March 1998, the veteran underwent a second complete lateral meniscectomy of the left knee. In August 1998, private records were received from D. Ellis, M.D. These show treatment from February 1998 to July 1998 primarily for his left knee and back, although these also show complaints of right knee pain. In October 1999, the veteran provided testimony in a personal hearing. He testified that he originally injured his right knee slipping on some steps to a catwalk while on active duty in 1985 and that during his service in the Persian Gulf, he had frequent swelling and pain in both his knees. Currently, he described his right knee as slipping and popping on him. He also testified that he had been prescribed a brace by his private doctor. Analysis and Conclusion The veteran has not presented a well grounded claim for service connection for a right knee condition because there is no competent evidence that he has any disability. Although there is ample evidence of complaints of problems with his right knee contained in the medical records, there is no diagnosis of any disability. The May 1997 and March 1998 VA examinations found his right knee to be "essentially asymptomatic" and "unremarkable" respectively with normal X-ray examinations at both times. Private medical records show treatment primarily for his left knee and back, with occasional complaints of pain for his right knee but no actual diagnosis. Although the veteran indicated in his March 1998 VA examination that he had been told by his private doctor that he may have some cartilage damage, it has been held that a statement from a veteran as to what a doctor told him is insufficient to establish a medical diagnosis. Warren v. Brown, 6 Vet. App. 4 (1993), See also Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Actual records of his treatment from several private physicians fail to show any diagnosis of disability of the right knee. The Board notes that the March 1998 VA examination resulted in a diagnosis of "[r]ecurrent pain and swelling of the right knee by history." The Court has determined that a bare transcription of a lay history is not transformed into competent medical evidence merely because the transcriber happens to be a medical professional. LeShore v. Brown, 8 Vet. App. 406 (1995). Furthermore, actual examination of the veteran was noted to be "unremarkable." Without medical evidence of disability, the only evidence that the veteran has a right knee disability are his own statements. The veteran's statements and sworn testimony are not competent evidence to diagnose his condition. Medical diagnosis and causation involve questions that are beyond the range of common experience and common knowledge and require the special knowledge and experience of a trained physician. Because he is not a physician, the veteran is not competent to make a determination that he has any disability of the right knee. See Espiritu, 2 Vet. App. at 495; Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Additionally, there is no medical evidence of any link between his service-connected left knee disability and his right knee, or any evidence of aggravation of his nonservice connected right knee by his left knee. The Board notes that the examiner in the March 1998 VA examination specifically stated that there was no reasonable medical probability that his right knee was secondary to his left knee. Finally, with no evidence of current right knee disability, the provisions of Allen v. Brown, 7 Vet. App. 439, 448 (1995) regarding the possibility of an increase in the veteran's nonservice connected right knee condition caused by his service- connected left knee disability need not be considered. The veteran does not meet the first element required for his claim to be well grounded. See Caluza, 7 Vet. App. at 506. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. § 1110, 1131 (West 1991); see Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that Secretary's and Court's interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed); see also Caluza v. Brown, 7 Vet. App. 498, 505 (1995); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v Derwinski, 2 Vet. App. 141, 143 (1992). The Board has thoroughly reviewed the claims file, but finds no evidence of a plausible claim for a right knee condition. Since the veteran has not met his burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded, it must be denied. See Boeck v. Brown, 6 Vet. App. 14, 17 (1993) (if a claim is not well-grounded, the Board does not have jurisdiction to adjudicate it). Absent the submission and establishment of a well-grounded claim, the United States Court of Appeals for Veterans Claims has held that the Secretary cannot undertake to assist a veteran in developing facts pertinent to his or her claim. Morton v. West, 11 Vet. App. 174 (1999). However, 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 veteran has not put the VA on notice of the existence of any specific, particular piece of evidence that, if submitted, could make his claim for a right knee condition 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). Regulations affording the appellant the benefit of the doubt, as provided by 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.102, do not apply where the appellant has not submitted a well- grounded claim. Holmes v. Brown, 10 Vet. App. 38 (1997). ORDER Because it is not well grounded, the veteran's claim for service connection for a right knee condition is denied. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals