Citation Nr: 1100167 Decision Date: 01/03/11 Archive Date: 01/11/11 DOCKET NO. 07-37 275 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for residuals of a right foot injury. 3. Entitlement to service connection for right knee disorder, including patellofemoral syndrome. REPRESENTATION Appellant represented by: American Red Cross WITNESSES AT HEARING ON APPEAL The Veteran (Appellant) and spouse ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION The Veteran, who is the Appellant, had active duty service from March 1983 to September 1986 with subsequent Reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, that denied service connection for the low back, right foot, and right knee. The Veteran testified at a Board hearing at the VA Central Office in February 2010 before the undersigned Acting Veterans Law Judge. A copy of the transcript of that hearing has been associated with the record on appeal. The Board reopened the issue of service connection for right knee patellofemoral syndrome and then remanded all three service connection issues for further development in May 2010. The issue of service connection for a right 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 Veteran did not sustain a low back injury in service. 2. The Veteran did not sustain a right foot injury in service. CONCLUSIONS OF LAW 1. A low back disability was not incurred in or aggravated by the Veteran's active service, to include active duty for training, and is not otherwise related to service. 38 U.S.C.A. §§ 101, 106, 1112, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.6, 3.102, 3.103, 3.159, 3.303, 3.304, 3.306, 3.307, 3.309 (2010). 2. A right foot disability was not incurred in or aggravated by the Veteran's active service, to include active duty for training, and is not otherwise related to service. 38 U.S.C.A. §§ 101, 106, 1112, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.6, 3.102, 3.103, 3.159, 3.303, 3.304, 3.306, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a) (2010), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The record shows that through a VCAA letter dated August 2006 the Veteran was informed of the information and evidence necessary to substantiate the claims for service connection. The Veteran was also advised of the types of evidence VA would assist in obtaining, as well as the Veteran's own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet.App. 183 (2002); Charles v. Principi, 16 Vet.App. 370 (2002). The United States Court of Appeals for Veterans Claims decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. The VCAA letter to the appellant was provided in August 2006 prior to the initial unfavorable decision in November 2006. Further, the notice requirements apply to all five elements of a service connection claim: 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). In this case, the August 2006 letter gave notice of the types of evidence necessary to establish a disability rating and effective date for the disabilities on appeal. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. § 3.103(c)(2) (2010) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the Board personal hearing, the Acting Veterans Law Judge (AVLJ) noted the elements of the claim that were lacking to substantiate the claims for service connection, specifically indicating that the Veteran needed to provide evidence that she currently had back, right knee, and right foot disabilities that were related to service. The representative and the AVLJ asked questions to ascertain the extent of any in-service event or injury and whether the Veteran's current disabilities were related to the in-service incident. They also asked questions to draw out the current state of the Veteran's disabilities. Additionally, no pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative. Moreover, neither the Veteran nor her representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through her testimony, demonstrated that she had actual knowledge of the elements necessary to substantiate her claims for service connection. The Veteran's representative and the AVLJ asked questions to draw out the Veteran's contentions regarding any in-service event or injury and any relationship between the current disability and any such event. Therefore, the Board finds that, consistent with Bryant, the AVLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). The Board also finds that there has been substantial compliance with the VCAA assistance provisions. The record in this case includes service treatment records, private treatment records, VA examination reports, and lay evidence. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c). No additional pertinent evidence has been identified by the claimant. The Veteran was afforded VA examinations in April 2002, October 2006, and June 2010. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Given that the claims file was reviewed by the examiners and the examination reports set forth detailed examination findings in a manner which allows for informed appellate review under applicable VA laws and regulations, the Board finds the examinations to be sufficient. Thus, the Board finds that further examination is not necessary. For all the foregoing reasons, the Board concludes that VA's duties to the claimant have been fulfilled with respect to the issues on appeal. Service Connection Laws and Regulations The issues before the Board involve claims of service connection for a low back, right foot, and right knee disorders. Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also 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). The term "veteran" is defined in 38 U.S.C.A. § 101(2) as "a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable." The term "active military, naval, or air service" includes active duty, and "any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty." 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a); see Biggins v. Derwinski, 1 Vet. App. 474, 477-478 (1991). Active duty for training (ADT) is defined, in part, as "full- time duty in the Armed Forces performed by Reserves for training purposes." 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). The term inactive duty training (IADT) is defined, in part, as duty, other than full-time duty, under sections 316, 502, 503, 504, or 505 of title 32 [U. S. Code] or the prior corresponding provisions of law. 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d). Thus, with respect to the Veteran's reserve service, service connection may only be granted for disability resulting from disease or injury incurred or aggravated while performing ADT, or an injury incurred or aggravated while performing IADT. 38 U.S.C.A. §§ 101(24), 106, 1110; 38 C.F.R. §§ 3.6, 3.303, 3.304. Certain evidentiary presumptions, such as the presumption of sound condition at entrance to service, the presumption of aggravation during service of preexisting diseases or injuries which undergo an increase in severity during service, and the presumption of service incurrence for certain diseases which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service, are provided by law to assist Veterans in establishing service connection for a disability or disabilities. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304(b), 3.306, 3.307, 3.309. The advantages of these evidentiary presumptions do not extend to those who claim service connection based on a period of ADT or IADT. Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (noting that the Board did not err in not applying presumptions of sound condition and aggravation to appellant's claim where he served only on ADT and had not established any service-connected disabilities from that period); McManaway v. West, 13 Vet. App. 60, 67 (citing Paulson, 7 Vet. App. at 469-70, for the proposition that, if a claim relates to period of active duty for training, a disability must have manifested itself during that period; otherwise, the period does not qualify as active service, and claimant does not achieve veteran status). The Board is to consider all lay and medical evidence as it pertains to the issues. 38 U.S.C.A. § 7104(a) ("decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record"); 38 U.S.C.A. § 5107(b) (VA "shall consider all information and lay and medical evidence of record in a case"); 38 C.F.R. § 3.303(a) (service connection claims "must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence"). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to report symptoms that she experiences at any time because this requires only personal knowledge as it comes through the senses. Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation). The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). Service Connection for Right Foot and Low Back Disorders The Veteran contends that she injured her back, right foot, and right knee while on active duty for training in April or May 2005. She testified that all of her current symptoms began during ADT when she fell down a hill, and have continued since that time. (The issue of service connection for a right knee disability is addressed in the remand portion below.) In addition, in January 2006 statement, the Veteran attempted to recall that about eight months earlier in May 2005 her back had popped and was injured while she was taking the physical fitness test, and that she was treated for this in sick call. As part of the current VA disability compensation claims, in recent statements and sworn testimony, the Veteran has asserted that her symptoms of a low back disability and right foot disability began in April 2005 and/or May 2005 and have been continuous since those claimed incidents. In this case, after a review of all the lay and medical evidence, the Board finds that the weight of the evidence demonstrates that the Veteran did not sustain a low back or right foot injury in service, including in April 2005 when she stepped in a hole and injured the right knee and in May 2005. The Board finds that the Veteran's more recently-reported history of falling down a hill and injuring her back and foot in April 2005 is inconsistent with the statements provided during treatment in April 2005, when she reported stepping in a hole during a night navigation course and injuring the right knee. The Board also finds that the Veteran's claim of a low back injury, symptoms, and treatment in May 2005, first reported in January 2006 statement several months after the claimed injury, is inconsistent with her other contention of back injury in April 2005, and is inconsistent with the other evidence of record, including the Veteran's prior histories and both the pre-service and service treatment record evidence. The April 2005 and May 2005 service treatment entry reflects no reports of low back or right foot injury, complaints, findings, diagnosis, or treatment. While the Veteran now asserts that disorders of the low back and right foot began in service in April 2005, the more contemporaneous in-service medical history she gave at the time of the incident in April 2005 reflects only reports of right knee injury, with no mention of low back or right foot injury, and complaints of right anterior knee pain, without any complaints of low back or right foot symptoms. The April 2005 in-service history of the injury and resulting symptoms, which do not include injury or symptoms of low back or right foot, is more contemporaneous, and includes both lay reporting of injury and symptoms as well as clinical findings, so is of more probative value than the Veteran's more recent assertions made years after service separation that now include claims of in-service low back and right foot injury and complaints. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding a Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements asserting different etiology); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board decision giving higher probative value to a contemporaneous letter the veteran wrote during treatment than to his subsequent assertion years later). Medical records dating back to July 2000 show complaints of low back pain. The Board notes that these complaints were not related to anything that occurred in service and began five years prior to the April 2005 incident. Specifically, a June 2002 medical record noted that the Veteran fell 1.5 years prior. Such histories of non-service-related low back injury and preexisting low back pain reported by the Veteran for treatment purposes are of more probative value than the more recent assertions and histories given for VA disability compensation purposes. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Additionally, the Veteran did not claim that symptoms of her low back and right foot disorders began during the April 2005 or May 2005 claimed incidents until just before she filed her current VA disability compensation claim. In the January 2006 reports, the Veteran wrote that she fell down a hill and injured her back and foot, in contrast with the treatment records that show she stepped in a hole. In fact, the Veteran did not fill out the statement of medical examination and duty status until January 2006, about nine months after the purported April 2005 back and right foot injuries, and about eight months after the purported May 2005 back injury, immediately prior to claiming for VA compensation in April 2006. In the January 2006 statement pertaining to April 2005 incident, the Veteran stated that due to the time lapse she was unable to recall whether the claimed April 2005 injuries happened in Land Navigation or Rifle Bayonet Training. Notably also, in the January 2006 statement, the Veteran only mentioned a foot and ankle injury, and did not mention a low back injury. The histories she provided at that time reflect uncertainty in her mind as to which type of training she was participating in. Such statements made based on recollection and for VA disability compensation purposes are of lesser probative value than the Veteran previous and more contemporaneous in-service histories and her previous statements made for treatment purposes, which do not include any history of low back or right foot injury in service or chronic symptoms of these claimed disorders in service. See Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration a veteran's statements, it may consider whether self-interest may be a factor in making such statements). The Veteran's statements made as part of the compensation claim and recent testimony regarding the claimed April and May 2005 incidents are inconsistent with the Veteran's statements made at the time of the injury, is inconsistent with medical evidence showing prior medical treatment for the low back complaints. Her January 2006 report noting an injury to the right foot in April 2005 is also inconsistent with the April 2005 complaints only of right knee pain and treatment received at the time of the incident, at which time the Veteran did not report injury to the low back or right foot, nor complained of low back or right foot symptoms. These inconsistencies in the record weigh against the Veteran's credibility as to the assertion of onset of low back and right foot disability during active duty training and continuity of symptomatology since service. See Madden v. Gober, 125 F.3d 1477, 1481 (Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (upholding Board's finding that a veteran was not credible because lay evidence about a wound in service was internally inconsistent with other lay statements that he had not received any wounds in service). The Board has weighed the Veteran's statements as to continuity of symptomatology and finds her current recollections and statements made in connection with a claim for VA compensation benefits to be of lesser probative value than her previous more contemporaneous in-service history and findings at the time of the injury, her previous statements made for treatment purposes, and her own previous histories of the incident and the resulting disabilities. For these reasons, the Board finds that the Veteran is not credible and the weight of the lay and medical evidence is against a finding of continuity of symptoms since the April 2005 incident. Additionally, the Board notes the conflicting medical nexus opinions of record. The June 2010 VA examination opined that it is less likely than not that the Veteran's conditions could be related to her reported injury on land navigation. A December 2006 private medical opinion noted that, to a reasonable degree of medical probability, per the patient's history, the injuries are almost a certainty related to the injury that the patient described on May 5, 2005 while training, active duty. The Board finds the VA examination more probative than the December 2006 opinion because it was based on a more accurate history that, while listing the Veteran's reports of claimed back and right foot injury in 2005, an inaccurate fact, the VA examiner's opinion did not rely on such inaccurate fact as the basis for the opinion rendered. On the other hand, the private examiner did not review the Veteran's medical records, but rather relied on the Veteran's inaccurate history of in-service low back and right foot injury and symptoms, including the inaccurate fact of having fallen down a hill (rather than the accurate fact of having stepped in a hole) and twisting the back and right foot (rather than the accurate fact of just injuring the right knee). It is apparent that the medical opinion relating the Veteran's current disabilities to service is based entirely on the inaccurate medical history of in-service low back and right foot injury and symptoms. The Veteran's current allegations and the December 2006 private medical opinion are inconsistent with the credible facts, as well as the clinical records. The Board is not bound to accept medical opinions that are based on history supplied by a veteran, where that history is unsupported by the medical evidence or based upon an inaccurate factual background. Black v. Brown, 5 Vet. App. 177 (1993); Swann v. Brown, 5 Vet. App. 229 (1993); Reonal v. Brown, 5 Vet. App. 458, 460- 61 (1993). The Board may reject a medical opinion that is based on facts provided by the appellant that have been found to be inaccurate or because other facts present in the record contradict the facts provided by the appellant that formed the basis for the opinion. See Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005). As such, the Board finds the December 2006 nexus opinion to be less probative than the June 2010 negative nexus opinion. Based on the credible evidence of record, the Board finds that a preponderance of the evidence is against granting service connection for a low back disability or a right foot disability. As the preponderance of the evidence is against the claims, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for a low back disorder is denied. Service connection for a right foot disorder is denied. REMAND The Board finds that further development is still necessary to make a decision on the merits regarding the Veteran's claim for service connection for right knee disability. The Board notes that the Veteran was diagnosed with patellofemoral pain syndrome prior to the April 2005 injury. Specifically, the record contains a statement from a private physician dated November 1993 that associated her right knee patellofemoral syndrome with mild malalignment of the lower extremities. Due to the fact that her disability pre-existed the April 2005 in-service incident, the question of service connection becomes one of aggravation. The June 2010 VA examination report reflects no current disability of the right knee, but failed to comment on the numerous other medical records showing a diagnosis of a right knee disability. The June 2010 VA examination also failed to offer an opinion on the question of aggravation of preexisting right knee disability in service in April 2005. As such, the Board finds that another VA examination of the right knee is warranted, with specific opinions regarding aggravation of any current right knee disability. Accordingly, the issue of service connection for right knee disorder, including patellofemoral syndrome, is REMANDED for the following action: 1. The Veteran should be afforded a VA joints (orthopaedic) examination to ascertain the nature and etiology of any current right knee disability. The relevant documents in the claims file should be made available to and reviewed by the examiner in connection with the examination. Any tests deemed medically advisable, including current x- rays, should be accomplished. The examiner should clearly respond to the following: a) The examiner should diagnose any current right knee disability. In doing so, the examiner should specifically address the November 1993 diagnosis of patellofemoral pain syndrome, the April 2002 diagnosis of bilateral knee arthralgia and chondromalacia patella, the February 2010 diagnosis of mild chondrosis, and the March 2010 diagnosis of patellofemoral instability recalcitrant to rehabilitation and bracing. b) For each current right knee disability identified, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or higher degree of probability) that any pre-existing right knee disability was permanently worsened in severity by the April 2005 incident during which the Veteran stepped in a hole and experienced knee pain. A complete rationale should be given for any opinion provided. 2. After completion of the above and any other development the RO/AMC should deem necessary, the RO/AMC should review the expanded record and determine if the claim for service connection for right knee disorder may be granted on any basis. The Veteran and her representative should be furnished an appropriate supplemental statement of the case, and should be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if otherwise in order. 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). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim. See 38 C.F.R. § 3.655 (2010). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ J. Parker Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs