Citation Nr: 1007358 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 04-30 439 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for peptic ulcer disease. 3. Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Schroader, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1975 to August 1995. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2002 rating decision of the Department of Veteran's Affairs (VA) regional office (RO) located in St. Petersburg, Florida that denied the Veteran's claims for service connection for a low back disability, peptic ulcer disease, and a right knee disability. In April 2004, the Veteran testified at a personal hearing before a Decision Review Officer (DRO), and a transcript of the hearing has been associated with the claims file. In August 2004, the Veteran requested a Travel Board hearing, which was scheduled for August 2006. The Veteran failed to appear, and his request for such hearing is considered withdrawn. In July 2007, and again in May 2009, the Board remanded the above claims for further development. Such development is complete and the issues are now before the Board for decision. FINDINGS OF FACT 1. The preponderance of the credible and probative evidence of record is against finding that the Veteran's low back disability is etiologically related to a disease, injury, or event in service. 2. The preponderance of the credible and probative evidence of record is against finding that the Veteran's peptic ulcer disease is etiologically related to a disease, injury, or event in service. 3. There is an approximate balance of positive and negative evidence as to whether the Veteran's right knee disability is related to service. CONCLUSIONS OF LAW 1. A low back disability was not incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.307, 3.309 (2009). 2. Peptic ulcer disease was not incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.307, 3.309 (2009). 3. Resolving reasonable doubt in favor of the Veteran, service connection for a right knee disability is warranted. See 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.307, 3.309(a) (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) With regard to the Veteran's claims for service connection for a low back disability, peptic ulcer disease, and a right knee disability, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5102, 5103(a), 5103A, 5106 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.326(a) (2009). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is generally required to "notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided . . . that is necessary to substantiate the claim." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2009). As part of that notice, VA must "indicate which portion of that information and evidence, if any, is to be provided by the claimant and which portion, if any, the Secretary . . will attempt to obtain on behalf of the claimant." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2009). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Board finds that a letter dated July 2002, as well as subsequent letters dated June 2003 and January 2006, fully satisfied the notice requirements of the VCAA with respect to the Veteran's claims. The Board also concludes that VA's duty to assist has been satisfied. All relevant VA treatment records and private treatment records identified by the Veteran have been associated with the claims file. The Board acknowledges that the Veteran's service treatment records have not been located and are presumed lost or destroyed. The Board finds, however, that pursuant to the Board's July 2007 remand, the RO went beyond making a reasonable attempt to obtain the Veteran's service treatment records, which attempts are all well documented in the claims file. The Board further finds that such records have been shown to be unavailable, and that further attempts to obtain them would be futile. VA's duty to assist also includes the duty to provide a VA examination when the record lacks evidence to decide a veteran's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established in-service event, injury, or disease, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See 38 C.F.R. § 3.159(c)(4) (2009); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In May 2009, the Board remanded all three claims to the AMC so that the Veteran could be provided with VA examinations. The AMC complied with the Board's instructions by scheduling multiple examinations and mailing written notice to the Veteran, but the Veteran failed to appear for the exams. The Board notes that "the duty to assist is not always a one-way street," and that the Veteran has an obligation to assist in the development of his claim. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board further notes that it is the duty of a claimant to report for a scheduled examination, and when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, his claim will be rated based on the evidence of record. 38 C.F.R. § 3.655(b) (2009). In light of the fact that the AMC scheduled the examinations pursuant to the Board's remand and provided the Veteran with notice thereof, the duty to assist has been satisfied to the extent possible under the circumstances. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Service connection may be established for a disability resulting from personal injury suffered or a disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. 38 C.F.R. § 3.303(b) (2009). If there is no showing of a resulting chronic disability during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. Id. Service connection may also be granted for any injury or disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2009). In order to establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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) (2009). At the outset of this case, the Board again notes that the Veteran's service treatment records have not been located despite several attempts made by the RO (including pursuant to the July 2007 Board remand). Under such circumstances, the Board recognizes that there is a heightened obligation to assist the Veteran in the development of the case, a heightened obligation to explain findings and conclusions, and a heightened duty to consider carefully the benefit of the doubt rule. See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005) (citing O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). A. Low Back Disability The Veteran served on active duty in the United States Army from August 1975 to August 1995. The Veteran testified at an April 2004 DRO hearing that he injured his low back in service in 1978 due to a 20-foot fall in assault school at Fort Campbell, Kentucky. See Hearing Transcript at 3. A July 2001 VA treatment record reflects that the Veteran complained of back pain and that he was scheduled for an x- ray. A July 2001 VA radiological report reflects an impression of degenerative disc disease at L4-L5 and L5 to S1. Clearly, the Veteran has a current low back disability. The Board must now address whether the Veteran's low back disability is related to service. As noted above, the Veteran's service treatment records have not been located despite several attempts made by the RO. The first medical evidence of record regarding the Veteran's back condition is a May 2001 VA treatment record reflecting complaints of back pain by the Veteran. The Veteran reported that his back pain started 20 years prior due to an injury. Between May 2001 and October 2007, the Veteran continued to be followed for back pain at the VAMC, although no positive or negative findings of a back condition are noted in the records despite two orthopedic consultations. Specifically, a January 2002 VA nursing telephone contact record reflects that the Veteran called complaining of back pain. The Veteran was advised to follow-up with the orthopedic clinic. A March 2002 VA orthopedic consultation note reflects that the Veteran complained of knee pain (darvocet was reported as ineffective) and was diagnosed with a knee condition, but no complaints of any back problems were noted, nor was any low back diagnosis recorded. An April 2002 VA nursing note reflects that, again, the Veteran called complaining of back pain, and that he was instructed to follow-up with the orthopedic clinic. A March 2007 VA treatment record reflects that the Veteran has not been to the VAMC for three years and that he reported that he had not received care elsewhere. He complained of a right knee condition, but did not make any complaints about his back condition. An April 2007 VA orthopedic consultation report likewise notes that the Veteran had not been seen since March 2002. The report reflects that, again, the Veteran complained of right knee problems, but no mention was made of any back problems. Following the Board's remand, the Veteran failed to report for scheduled VA examination. As such, the claim must be decided on the evidence of record. See 38 C.F.R. § 3.655 (2009). Having reviewed that record, the Board finds that the preponderance of the preponderance of the evidence is against finding that the Veteran's low back disability is related to service or that any such back disability manifested within one year of the Veteran's separation from service (as arthritis is a chronic disability listed in 38 C.F.R. § 3.309). See 38 C.F.R. § 3.307 (2009). The Board has considered the Veteran's lay contention that his low back disability, to include degenerative disc disease, began in service in 1978 as a result of a fall. In this regard, the Board acknowledges that the Veteran is competent to report the onset of symptoms capable of lay observation, for example, falling and experiencing back pain. To this extent, his assertions of continuity of symptomatology are entitled to probative weight. However, even when a veteran is asserting continuity of symptomatology after service, there still must be medical evidence relating a current disability to that symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-98 (1997). Thus, although he may be competent to describe experiencing back pain for twenty years, he is not competent to offer an opinion on a matter clearly requiring medical expertise, such as linking a current diagnosis of degenerative disc disease disability to that symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). The Board is cognizant that the Veteran has reported having been specifically told in the past, apparently in service, that he had degenerative disc disease. Pursuant to Jandreau, a lay person can relate what they have been told by a doctor in the past. Nevertheless, such reports about what a physician told him or her, i.e., "hearsay medical evidence," cannot constitute medical evidence, as "the connection between what a physician said and the layman's account of what he purportedly said, filtered as it was through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute 'medical' evidence." See Robinette v. Brown, 8 Vet. App. 69, 77 (1995). While the Board is sympathetic to the fact that his service treatment records were lost, through no fault of the Veteran, the fact remains that the first competent evidence of a back disability is dated approximately six years after his separation from service. As noted, the Veteran reported a 20 year history of problems at that time, but he also reported a significant increase in symptoms over the past 18 months. As discussed, he may be competent to describe experiencing back pain for twenty years, but he is not competent to offer an opinion on a matter clearly requiring medical expertise, such as linking the current diagnosis of degenerative disc disease disability to that symptomatology. The Board finds that this is particularly so in a case such as this, in which the Veteran reported an increase in symptoms during the 18-month period preceding the earliest documented diagnosis of degenerative disc disease. In summary, the greater weight of competent and probative evidence does not show that the Veteran's low back disability is related to service or that any such disability manifested within one year of the Veteran's separation from service. 38 C.F.R. §§ 3.307, 3.309. There is not an approximate balance of negative and positive evidence on the merits. See Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2009). B. Peptic Ulcer The Veteran testified at the April 2004 DRO hearing that he was first diagnosed with having duodenal ulcers in 1989 at a naval hospital in Jacksonville, Florida, but he reported that his symptoms first began while he was stationed in Berlin, Germany in 1987 due to stress. He testified that he spent one week at the naval hospital in 1989, and that an endoscopy was performed at that time. February 1999 private hospitalization records reflect that the Veteran was hospitalized for complaints of chest pain and vomiting coffee ground material. He was diagnosed with peptic ulcer disease. VA treatment records dated May 2001 to October 2007 reflect that the Veteran continued to be followed for his peptic ulcers. Clearly, the Veteran currently has peptic ulcer disease. The Board must now address whether the Veteran's peptic ulcer disease is related to service. As noted above, the Veteran's service treatment records have not been located despite several attempts made by the RO. The above February 1999 private hospital records are the first medical evidence of record regarding the Veteran's peptic ulcer disease. He reported a history of epigrastic burning pain for the last six months, usually daily and occurring about an hour or two after his meals. He also reported nausea and vomiting with coffee ground material, which he indicated had happened on several occasions. The records reflect that the Veteran reported that he was diagnosed in 1978 with a duodenal ulcer. A May 2001 VA treatment record reflects that he reported having been diagnosed with ulcers in 1997. The Veteran had presented complaining of experiencing heartburn and vomiting brown material. A past medical history of peptic ulcer disease was recorded, but no current diagnosis. The Veteran was prescribed Zantac, and June and July 2001 VA treatment records reflect that the Veteran reported that his condition had improved. In March 2002, the Veteran reported experiencing no gastrointestinal complaints since he began taking Zantac. A March 2007 VA treatment record reflects that he Veteran had not presented for three years. The record specifically notes that the Veteran denied being treated elsewhere, that he denied taking any medications except for some Advil for his right knee pain, and that he did not have any gastrointestinal complaints. No diagnosis of any ulcers was recorded. As noted above, the Veteran was scheduled for VA examination, but he failed to report. As such, the claim must be decided on the evidence of record. See 38 C.F.R. § 3.655 (2009). Having reviewed the record, the Board finds that the preponderance of the competent evidence of record fails to establish that the Veteran's peptic ulcer disease is related to service or that any such disability manifested within one year of the Veteran's separation from service (as peptic ulcers are a chronic disability listed in 38 C.F.R. § 3.309). See 38 C.F.R. § 3.307 (2009). As explained in the May 2009 Remand, the Board finds that the Veteran is competent to report his medical history and to describe the gastric symptoms he experienced and the treatment he received during service. Furthermore, the Board also notes that the term 'ulcer' is common enough to be readily understood and not subject to misinterpretation the way that more specialized diagnoses may be. However, it must also be considered that the Veteran reported to one physician that the onset was in service in 1978, and later to another that the onset was post-service in 1997. On another occasion, he dated the onset of his symptoms to 1987. Furthermore, even when he reported a history of having been diagnosed in 1978, he also indicated to on the same occasion that his current symptoms had only been present for six months. It must again be noted that the Board attempted to clarify the etiology of the claimed disability by providing him the opportunity to appear for a VA examination. As noted, the Court has held that the duty to assist is not a one-way street, and that the Veteran has an obligation to assist in the development of his claim. See Wood, supra. The Board believes that his failure to report for a VA examination is a factor that can be weighed in evaluating his credibility. Given the conflicting statements of record as to his past history, and his failure to report for VA examination to clarify the etiology of his disability, the Board concludes that his own statements regarding his past history are not credible. As there is no competent medical evidence otherwise suggesting that his current disability is related to service, the Board finds that the preponderance of the evidence is against finding that the Veteran's peptic ulcer disease is related to service or that any such disability manifested within one year of the Veteran's separation from service. 38 C.F.R. §§ 3.307, 3.309. There is not an approximate balance of negative and positive evidence on the merits. See Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2009). C. Right Knee Disability The Veteran testified at the April 2004 DRO hearing that he injured his right knee while playing flag football in service in March 1995 at Fort Stewart, Georgia. He testified that he went to the Winn Army Hospital and was treated with ice. The next day, he described that he went back to the hospital for further evaluation by an orthopedist and that he was told that an MRI (performed in a mobile tractor unit from another base in Georgia) revealed that he had torn cartilage in his right knee. The Veteran further testified that in April 1995, arthroscopic surgery was performed on his right knee at the Winn Army Hospital, and that he was given crutches and pain medication and was told to "stay off it." See Hearing Transcript, 15-16. An October 2007 VA treatment record reflects that the Veteran was diagnosed with right knee pain status post partial meniscectomy. More recently, an April 2009 private MRI report reflects an impression of chondromalacia versus occult medial meniscus tear. Clearly, the Veteran has a current right knee disability. The Board must now address whether the Veteran's right knee disability is related to service. As noted above, the Veteran's service treatment records have not been located despite several attempts made by the RO. The first medical evidence of record regarding the Veteran's right knee condition is a February 1999 private hospital record in which a physician noted the Veteran's reported history of having surgery on his right knee in 1995 due to a torn meniscus. The next medical evidence of record is an August 2001 VA orthopedic surgery consultation record that reflects a history of "arthroscopic medial (partial?) meniscectomy in April 1995." The surgeon ordered an MRI of the Veteran's right knee. An October 2001 radiological report (MRI) includes the following notation: "Today's exam shows post surgical changes compatible with patient's clinical history of meniscectomy involving his posterior lateral meniscus." The report reflects impressions of degenerative changes involving the lateral and patellar compartments, moderate loss of cartilage laterally, and abnormal globular signal involving the anterior and posterior horns of the lateral meniscus, as well as a bakers cyst and synovial cyst. A March 2002 VA orthopedic follow up note reflects "has DJD and abnormal signals in posterior horn of both menisci. Has had medial meniscectomy." An April 2007 VA orthopedic consultation report reflects that the Veteran returned for a follow-up appointment complaining of right knee pain. Again, the surgeon noted a history of "partial medial meniscectomy prior to his first visit." Full range of motion, no effusion, and no crepitation were noted. The report reflects that the Veteran was ordered to return after x-rays had been taken. As noted above, the first medical evidence of record of a right knee condition is dated February 1999, about four years post service (and 3 1/2 years prior to the filing of his claim for service connection), which record reflects that the Veteran reported a history of a 1995 right knee meniscectomy. As discussed, the Veteran failed to report for a VA examination, which the Board believes is a factor that can be considered in weighing the credibility of his statements. However, the Board also notes that, generally, statements made for the purpose of medical diagnosis or treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive a proper diagnosis or treatment. See White v. Illinois, 502 U.S. 346, 356, 112 S.Ct. 736 (1992). In this case, the Veteran reported having a April 1995 meniscectomy to the VA orthopedic surgeon in August 2001, and the October 2001 radiological findings were specifically noted as being entirely consistent with the Veteran's reported history. Unlike the history noted during treatment with respect to his claimed peptic ulcer disease, the Board notes that there is nothing in the claims file that contradicts the Veteran's reported history of having undergone surgery in 1995 or suggests that he incurred a post-service right knee injury. In light of the above, the Board finds that the Veteran's lay history combined with the above medical evidence of record is sufficient to place the evidence in equipoise as to whether or not the Veteran's claimed right knee disability had its onset in service, particularly in light of the radiologist's opinion regarding the credibility of the history of the Veteran. Therefore, having resolved doubt in favor of the Veteran, the Board will grant the Veteran's claim of service connection for a right knee disability. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2009). ORDER Entitlement to service connection for a low back disability is denied. Entitlement to service connection for a peptic ulcer is denied. Entitlement to service connection for a right knee disability is granted. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs