Citation Nr: 1013577 Decision Date: 04/09/10 Archive Date: 04/29/10 DOCKET NO. 08-26 294 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a cervical spine disability. 2. Entitlement to service connection for a bilateral hip disability. 3. Entitlement to service connection for a bilateral knee disability. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD Jared Haynie, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1978 to October 1981. This appeal comes before the Board of Veterans' Appeals (Board) from an October 2007 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The issue of service connection for a bilateral knee disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The evidence does not show that the Veteran incurred an injury to his cervical spine during service or that cervical spine arthritis was diagnosed within a year following service. 2. The evidence does not show that the Veteran is currently diagnosed with a disability of one or both hips; and the evidence does not show that the Veteran incurred an injury to one or both hips during service or that arthritis of the hips was diagnosed within a year following service. CONCLUSIONS OF LAW 1. The Veteran's cervical spine was not incurred or aggravated during service. 38 U.S.C.A. §§ 1131, 5103, 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2009). 2. The Veteran's disability, if any, of one or both hips was not incurred or aggravated during service. 38 U.S.C.A §§ 1131, 5103, 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veteran and his representative contend that the Veteran is entitled to service connection for disabilities of the cervical spine and bilateral hips. Initially, the Board notes that VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 C.F.R. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has satisfied its duties to notify the Veteran. In a March 2007 letter, VA informed the Veteran of the evidence VA had received to date, the evidence VA was responsible for obtaining, how the Veteran could help VA going forward, and what the evidence must show to support his claims. The same letter also explained how disability ratings and effective dates are assigned. VA also has a duty to assist a claimant in the development of the claim. This duty includes (1) assisting the claimant in the procurement of service treatment records and other pertinent records and (2) providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (holding that when the Board addresses a question that has not been addressed first by the RO, it must consider whether the claimant was given adequate notice, and if not, whether the claimant was prejudiced thereby). In this case, the Veteran's service treatment records, VA treatment records, and pertinent private treatment records have been associated with the claims file. The Veteran did not undergo a VA examination regarding his claims for disabilities of the cervical spine and bilateral hips. The Board finds that in this case no examination is necessary. VA's duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on the claim. An examination or opinion is necessary to make a decision on a claim if (1) the record contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; (2) the evidence establishes that an event, injury, or disease occurred during service, or that certain diseases manifested during the applicable presumptive period; and (3) the evidence indicates that the disability or symptoms may be associated with the claimant's active service, but does not contain sufficient medical evidence for VA to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The third element above establishes a low threshold, requiring only that the evidence "indicate" that there "may" be a nexus between the current disability or symptoms and the veteran's service. McLendon v. Nicholson, 20 Vet. App. 79, 84 (2006) (pointing to, as examples of such evidence, medical evidence that is too equivocal to support a decision on the merits, and credible evidence of continuity of symptomatology). In this case, no examination is necessary to adjudicate the claims for service connection for disabilities of the cervical spine and bilateral hips because the evidence does not satisfy the second element discussed above (in-service injury). Although the Veteran alleges that he injured his cervical spine and bilateral hips during service when he fell off a tank (falling thirteen feet), his service treatment records do not confirm the occurrence of this injury. Although service treatment records show that the Veteran was treated for a number of ailments during service, they do not show a single complaint of neck or hip pain or any other condition related to the cervical spine or hips. Moreover, the Board notes that a medical examination would serve no useful purpose in this case because one of the required elements to establish service connection (discussed in more detail below) is an in-service disease or injury. Because that element is lacking here, there is no possibility that the Veteran's service-connection claims for disabilities of the cervical spine and bilateral hips could be substantiated merely by virtue of a medical examination. Accordingly, the Board finds that the Veteran was not prejudiced by the lack of a VA examination. In sum, VA has fulfilled its duty to assist in every respect. II. Service Connection The Veteran contends he is entitled to service connection for disabilities of the cervical spine and bilateral hips. Specifically, he contends that during service he fell off a tank (falling thirteen feet) and injured, among other things, his cervical spine and hips; and that ever since that incident, he has had problems with his cervical spine and hips. 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. § 1131; 38 C.F.R. § 3.303. Generally, to establish service connection, a veteran must show evidence of a current disability, evidence of in-service incurrence or aggravation of a disease or injury, and evidence of a nexus between the claimed in-service disease or injury and the present disability. 38 U.S.C.A. §§ 1131, 5107(a); 38 C.F.R. § 3.303; Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). 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. Service connection may also be granted for chronic disorders, such as arthritis, when manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. 38 C.F.R. § 3.303(d). A. Cervical Spine Disability The Veteran contends he is entitled to service connection for a cervical spine disability. The service treatment records are void of any complaints of, treatment for, or diagnoses of cervical spine disabilities or other problems related to the cervical spine. Turning to the post-service medical evidence, the Board notes that the Veteran underwent a magnetic resonance image (MRI) of the cervical spine in September 2005. (There is no medical evidence in the file that predates September 2005 and that relates to a condition of the cervical spine.) The MRI showed possible minimal posterior bulging discs at C5-C6 and C6-C7; and probable very mild narrowing of the right neural foramen at C6-C7. A December 2006 VA outpatient consultation report shows that the Veteran presented complaining, among other things, of pain in the cervical spine. No mention was made with respect to a relationship between a cervical spine disability and the Veteran's service. After reviewing all the evidence, the Board is unable to grant the Veteran's claim for service connection for a cervical spine disability. Specifically, the Board finds that the evidence does not show the occurrence of an in- service event, injury, or disease related to the cervical spine. A review of the service treatment records shows that the Veteran was treated for several other ailments, including, on two separate occasions, a low back strain. Because the service records show that the Veteran was willing and able to seek medical attention when necessary, the Board finds that had the Veteran injured his cervical spine (after falling thirteen feet off a tank), more likely than not, he would have sought medical attention (or at least would have mentioned the injury at a future appointment). Accordingly, because the evidence does not show an in-service injury to the cervical spine, or that a current cervical spine disability is otherwise related to service, the Board is unable to grant the Veteran's claim for service connection for a cervical spine disability. B. Bilateral Hip Disability The Veteran contends he is entitled to service connection for a bilateral hip disability. The service treatment records are void of any complaints of, treatment for, or diagnoses of a bilateral hip disability or other problems related to the hips. There is no post-service medical evidence of a disability or condition that affects either hip. After evaluating all the evidence, the Board finds that, given the absence of medical evidence during service, and further given the absence of evidence of a current diagnosis pertaining to the hips, it is less likely than not that the Veteran suffered an in-service injury to either hip that is causally related to any disability, if any, he currently experiences. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("In the absence of proof of a present disability there can be no valid claim."). Because the evidence does not support a finding of an in-service injury to one or both hips-or a presently diagnosed disability affecting one or both hips-the Board is unable to grant the claim. In arriving at the above conclusions, the Board has considered the doctrine of reasonable doubt, but finds that the preponderance of the evidence is against a finding of entitlement to service connection; the claims are therefore denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102, 3.312; Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990) (if the Board rules against a veteran in a case where there are "two permissible views" of the evidence, the Board must provide an "adequate statement of [its] reasons or bases" in support of its determination that the veteran is not entitled to the benefit of the doubt) (internal quotations omitted). ORDER Entitlement to service connection for a disability of the cervical spine is denied. Entitlement to service connection for a disability of the bilateral hips is denied. REMAND Additional development is needed prior to further disposition of the claim for service connection for a bilateral knee disability. The service treatment records show that the Veteran was treated for his knees on two occasions during service. In October 1979, he was treated for a bruise of the left knee. The Veteran reported that his knee was injured when he hit it with a hammer. There was tenderness over the lateral aspect of the knee, but no discoloration, swelling, effusion, or crepitus. An X-ray of the left knee showed no significant abnormalities. In December 1979, he was treated for pain in both knees that had been ongoing for four days. There was grinding in the knees at the patella. There was no swelling or discoloration. The examiner diagnosed the Veteran with chondromalacia (also known as patellofemoral stress syndrome or runner's knee; consisting of anterior knee pain due to irritation of the cartilage on the undersurface of the kneecap). Turning to the post-service medical evidence, the Board notes that the Veteran underwent a VA examination in October 2007. At the examination, the Veteran reported that his right knee was slightly worse than his left knee; that he experienced "occasional" bilateral knee swelling; and that he felt a "sensation of buckling" of both knees on at least a monthly basis. He reported generalized stiffness in the mornings. He had chronic pain with any type of activity, including "any type" of ambulation. He denied any episodes of locking or flare-ups. He reported that he used knee braces for stability. He reported that his knee problems had been "going on for about 6 or 7 years." Physical examination revealed generalized stiffness and pain throughout the knees. Range of motion testing showed extension to 0 degrees bilaterally, and flexion to 130 degrees bilaterally. The Veteran reported "some crepitus and pain" throughout the range of motion, bilaterally. There was no locking, swelling, slippage, or instability. Neither knee showed any change after five non-weightbearing repetitions. An X-ray showed "[e]ssentially normal bilateral knees." The examiner diagnosed the Veteran with bilateral patellofemoral stress pain syndrome. The examiner commented that the Veteran's disability did not render him totally unemployable, although he would have great difficulty performing "any type of laboring job." As to the etiology of the disability, the examiner opined, "I really could not find much information concerning knee problems during active duty. It is more likely that the knee problems are secondary to injuries after active duty as opposed to active duty." The Board has reviewed all the evidence but is unable to make a determination on the claim at this time. Specifically, the Board finds that the claim must be remanded for further clarification of the etiology opinion proffered by the examiner at the October 2007 VA examination. The Board notes that during service, the Veteran was diagnosed with chondromalacia (also known as patellofemoral stress syndrome or runner's knee). The VA examiner made note of this in- service diagnosis in the examiner's review of the Veteran's medical history (although it was incorrectly noted that the in-service diagnosis pertained to only the left knee, when it actually pertained to both knees). Despite having made note of the in-service diagnosis of chondromalacia at the beginning of the examination, the examiner stated (as only rationale provided for the negative etiology opinion) that he or she "really could not find much information concerning knee problems during active duty." The Board finds that this statement may present a contradiction. Given this possible contradiction in the examiner's etiology opinion, and further given the fact that the two diagnoses (from 1979 and 2007, respectively) identify the same disability (chondromalacia or patellofemoral stress syndrome), the Board finds that the claim should be remanded for clarification of the opinion. Accordingly, the case is REMANDED for the following action: 1. Return the claims folder to the same examiner that conducted the October 2007 VA joints examination. Ask the examiner to clarify the etiology opinion regarding the Veteran's bilateral patellofemoral stress syndrome. Specifically, ask the examiner to opine as to the etiology of the Veteran's bilateral patellofemoral stress syndrome, and to explain why it is or is not related to the bilateral chondromalacia (also known as patellofemoral stress syndrome) diagnosed during service in December 1979. If, upon review of the claims folder, the examiner determines that a new examination is necessary to render an adequate opinion, then schedule the Veteran for a new examination with the examiner. The examination report should reflect that the examiner reviewed the claims folder. All opinions expressed by the examiner should be accompanied by a complete rationale, with citation to relevant medical findings and lay statements. Based on a review of the claims folder, the examiner should clarify the October 2007 etiology opinion by providing an opinion and an explanation as to whether it is at least as likely as not that the Veteran's bilateral patellofemoral stress syndrome is causally related to his period of active service. 2. Then, the AMC should readjudicate the claim. If the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response before returning the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. All claims remanded by the Board or by the U.S. Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs