BVA9507744 DOCKET NO. 93-02 923 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for the residuals of a left knee injury. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Associate Counsel INTRODUCTION The veteran served on active duty from November 1970 to November 1974. This appeal arises from a September 1992, rating decision of the New Orleans, Louisiana, regional office (RO). That rating decision denied the veteran's claim of entitlement to service connection for residuals of a left knee injury. A hearing was held in August 1993 at New Orleans, Louisiana, before me, Jan Donsbach. I am the Board of Veterans' Appeals (Board) member rendering this decision and was designated by the Chairman to conduct that hearing pursuant to 38 U.S.C.A. § 7102(b) (West 1991). In May 1994, the Board remanded the case to obtain additional evidence and to afford the veteran a VA examination. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he is entitled to service connection for residuals of a left knee injury. He contends that he was on light duty at the time of his discharge from service and that he continues to have left knee symptoms which he considers to be related to his inservice left knee injury. His representative requests that all reasonable doubt be resolved in the veteran's favor. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the veteran's claim for service connection for residuals of a left knee injury. FINDINGS OF FACT 1. The RO has obtained all possible relevant evidence necessary for an equitable disposition of the veteran's claim. The veteran has not responded to requests for information from the RO or reported for examination. 2. The veteran's left knee injury in service was acute and transitory and resolved without any residual disability prior to his discharge from service. 3. There is no medical evidence in the record that the veteran has any current residuals of his inservice left knee injury. CONCLUSION OF LAW A chronic left knee disability was not incurred in or aggravated by active military service. 38 U.S.C.A §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.655(b) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim is well-grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, the veteran has presented a claim which is plausible. All relevant facts have been properly developed given the veteran's failure to cooperate and no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Initially, the Board notes that the veteran was given 60 days after the personal hearing to submit additional medical records. None were submitted. The record also indicates that the RO sent the veteran a letter in July 1994 requesting information concerning the veteran's medical care providers and providing release forms for the veteran to sign and return. The veteran was notified that he had 60 days in which to submit information or his appeal would be sent to the Board for a decision based on the evidence of record. Again, the veteran did not respond. The record also indicates that the veteran was scheduled for a VA examination in November 1994 in conjunction with his claim for service connection for a left knee disability. He failed to report to the examination. The VA Medical Center's November 1994 notice to the RO of the veteran's failure to report to the scheduled VA examination is evidence that the veteran was notified of, but simply failed to report for, that examination. Moreover, the veteran was informed in the Board's May 1994 remand that he would be afforded a VA examination. If the veteran had not received notice of the scheduling of the examination, he would have requested that the RO furnish him with a reason as to why he had not yet been scheduled for the examination. There is no indication in the claims folder that the veteran questioned the status of the scheduling of his VA examination. In addition, at no time, either before or after his failure to report to the examination scheduled in November 1994, did he or his representative offer any explanation as to the reasons for his failure to report. Consequently, the Board concludes that the veteran was informed of the VA examination scheduled in November 1994 and that he simply failed to report. As discussed above, the Board remanded this appeal to obtain additional development of the evidence. Development has been unsuccessful due to the veteran's failure to respond to requests for additional information or to report for examination. "The duty to assist is not always a one-way street. If a veteran wishes 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." Wood v. Derwinski, 1 Vet.App. 190, 193 (1991). According to the applicable regulations, when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be adjudicated based on the evidence of record. 38 C.F.R. § 3.655(b) (1994). Because the veteran failed to report to the VA examination scheduled in conjunction with his claim for service connection for residuals of a left knee injury, this issue must be decided based on the evidence currently of record. For service connection to be granted, the law requires that there be a disability and that the disability result from disease or injury incurred in or aggravated by military service. 38 U.S.C.A. § 1110 (West 1991). Furthermore, the regulations provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1994). The service medical records demonstrate that the veteran was treated for complaints of left knee pain in November 1970, August 1973, and March 1974. At the treatment given in March 1974, the attending physician diagnosed chondromalacia of the left patella. The service medical records also contain an entry of treatment for right knee pain in October 1973. The veteran contended at his August 1993 personal hearing that he was never treated for a right knee problem in service and that the entry should have indicated treatment for left knee pain. In any event, the separation examination conducted in October 1974 demonstrated that the veteran's lower extremities were normal and no injury involving the left knee was noted. The veteran also testified that he was on "light duty" at the time of his discharge because of a hemorrhoid problem, not in connection with any knee injury. At the personal hearing, the veteran testified that, after his discharge from service, he continued to experience small aches and pains in his left knee. He also testified that his left leg was reinjured in a truck accident in March 1991. Since the veteran did not cooperate with attempts to obtain private medical reports and did not report for the scheduled VA examination, there is no medical evidence to demonstrate the current extent of any left knee disability that the veteran may have, whether any current left knee disability that the veteran may have is related to the inservice left knee symptoms, or whether the post-service truck accident in March 1991 in any way affected any current left knee condition. Due to the veteran's failure to cooperate with VA attempts to develop further evidence in his claim, the record before the Board contains no medical evidence of any left knee treatments since service. It is not enough to demonstrate that a left knee injury occurred in service. The service separation examination indicated no knee pathology. Without medical evidence of a current left knee disability, service connection may not be established. The veteran has submitted written statements and oral testimony to the effect that he has a chronic left knee disability which began in service. The Board has considered this evidence, however, without supporting medical evidence, the veteran's statements on this subject are not credible or competent to establish medical diagnoses or causation. Espiritu v. Derwinski, 2 Vet.App. 494 (1992). There is no medical evidence supporting the veteran's claim that he has a current chronic left knee disability, much less one that is related to his inservice left knee injury which apparently resolved prior to his separation from service. Under these circumstances, the Board must conclude that the preponderance of the evidence is against the veteran's claim of entitlement to service connection for residuals of a left knee injury. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1994). The evidence for and against the claim is not in relative equipoise, therefore no reasonable doubt issue is raised. 38 U.S.C.A. § 5107(b)(West 1991); 38 C.F.R. § 3.102 (1994). ORDER Service connection for residuals of a left knee injury is denied. JAN DONSBACH Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.