Citation Nr: 1122003 Decision Date: 06/07/11 Archive Date: 06/20/11 DOCKET NO. 10-25 554 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for a bilateral knee disability, to include bilateral patellofemoral degenerative joint disease. 2. Entitlement to service connection for a bilateral ankle disability, to include bilateral ankle strains and arthritis. 3. Entitlement to service connection for a low back disability, to include degenerative disc disease of the lumbar spine. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Elizabeth Jalley, Counsel INTRODUCTION The Veteran served on active duty from March 1968 to March 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The issue of entitlement to service connection for a low back 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 exhibit a bilateral knee disability in service, arthritis of the bilateral knees was not exhibited within one year of separation from service, and a bilateral knee disability is not etiologically related to any injury or disease during the Veteran's active service. 2. The Veteran did not exhibit a bilateral ankle disability in service, arthritis of the bilateral ankles was not exhibited within one year of separation from service, and a bilateral ankle disability is not etiologically related to any injury or disease during the Veteran's active service. CONCLUSIONS OF LAW 1. A bilateral knee disability, to include bilateral patellofemoral degenerative joint disease, was not incurred in or aggravated by active service and may not be presumed to have been caused or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2010). 2. A bilateral ankle disability, to include bilateral ankle strains and arthritis, was not incurred in or aggravated by active service and may not be presumed to have been caused or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Preliminary Matters The Veterans Claims Assistance Act of 2000 (VCAA), Public Law No. 106-475, 114 Stat. 2096 (2000), substantially amended the provisions of chapter 51 of title 38 of the United States Code, concerning the notice and assistance to be afforded to claimants in substantiating their claims. VCAA § 3(a), 114 Stat. 2096, 2096-97 (2000) (now codified as amended at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2010)). In addition, VA published regulations, which were created for the purpose of implementing many of the provisions of VCAA. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (now codified, in pertinent part, at 38 C.F.R. § 3.159 (2010)). The notice requirements of the VCAA require VA to notify the veteran of any evidence that is necessary to substantiate a claim, as well as the evidence VA will attempt to obtain and which evidence the veteran is responsible for providing. Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). The VCAA notice requirements, however, may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Dingess, supra; Pelegrini, supra. The Board finds that the notification requirements of VCAA have been satisfied in this case. In this regard, the Board notes an evidentiary development letter dated in July 2008 in which the RO advised the appellant of the evidence needed to substantiate his claims. This letter advised the Veteran of his and VA's responsibilities under VCAA, to include what evidence should be provided by him and what evidence should be provided by VA. This letter also advised the Veteran as to the type of evidence needed to substantiate both the disability rating and effective date elements of his claims, pursuant to the Court's holding in Dingess, supra. The Board further finds that the duty to assist requirements of VCAA have also been satisfied in this case. 38 U.S.C.A. §§ 5103 and 5103A. Specifically, the Board finds that all obtainable evidence identified by the Veteran relative to the issues on appeal has been obtained and associated with the claims folder. In particular, the Board notes that the RO obtained the Veteran's service treatment records. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in initial service connection claims, the VA must provide a VA medical examination where there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. In the case at hand, the Veteran underwent a VA examination in December 2008. The Board finds that this opinion is adequate for the purpose of determining the claims decided herein. The examination report reflects that the examiner reviewed the claims folder. During the examination, the examiner elicited from the Veteran his history of complaints and symptoms and provided clinical findings detailing the examination results. The examiner also provided diagnoses and etiology opinions and explained the reasons and bases for her opinions. For these reasons, the Board concludes that the December 2008 VA examination report in this case provides an adequate basis for a decision. The evidence of record provides sufficient information to adequately evaluate the claims. Therefore, no further assistance to the Veteran with the development of evidence is required, nor is there notice delay or deficiency resulting in any prejudice to the Veteran. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). II. Service Connection The Veteran has claimed entitlement to disabilities of the bilateral knees and bilateral ankles. He essentially attributes these disabilities to injuries suffered as a parachutist in service. The Veteran has reported that he made approximately 30 parachute jumps in service. In general, applicable laws and regulations state that service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That a condition or injury occurred in service alone is not enough; there must be disability resulting from that condition or injury. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for chronic disabilities, such as arthritis, if such are shown to have been manifested to a compensable degree within one year after the veteran was separated from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In February 2010, the Veteran submitted a statement in support of his claims. In this statement, he described how he injured his knees and ankles in service. He reported having performed 32 jumps in service and noted that he had a bad landing on one jump and dislocated his jaw. He described performing search and destroy duties in Vietnam, reporting they would go out on ambush 15 days and return for 3 days, then go out another 15 days and return for 3 days. The Veteran attributed his current knee problems to these ambushes. He reported that his unit would set traps and push back into the brush and wait. At these times, they could not walk, so he had to crawl on his knees. He described having to carry a 50 to 100 pound supply pack on his back when they went out on ambushes. He also noted that the jumping with the extra weight in the jungles and rice patties took its toll on his ankles. The Veteran's March 1971 separation examination report notes no pertinent abnormalities, and his records do not otherwise reflect that he complained of or sought treatment for his knees or ankles in service. Unlike with the back claim, which will be discussed in detail below, the Veteran himself has not asserted that he suffered a specific injury to his knees or his ankles in service. Rather, he asserts that his current knee and ankle disabilities are the result of the repeated micro-traumas that he suffered while performing his parachute jumps. In Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996), the United States Court of Appeals for the Federal Circuit held that under 38 U.S.C.A. § 1154(b), a combat Veteran's assertions of an event during combat are to be presumed if consistent with the time, place and circumstances of such service. In the case at hand, the Veteran's service personnel records reflect that he served in Vietnam and received a Combat Infantry Badge (CIB), and his description of his in-service duties is consistent with the circumstances, hardships, or conditions of his combat service. Thus, under 38 U.S.C.A. § 1154(b) (West 2002), the Veteran's description of his parachutist and ambush duties is presumed credible. The Board notes, however, that the Veteran has not actually claimed that he sustained a specific injury to his knees and elbows in service, or at least that he noticed any specific injury. Instead, he asserted in his February 2010 statement that "I feel that the jumps, running and the time in Vietnam the way we operated have had its toll on my knees, back and ankles." A March 2011 statement from the Veteran's representative asserts that service connection should be established "based on ... the consideration of the veteran's stresses to the joints in question while under combat and other particularly strenuous conditions such as 30 jumps as a paratrooper...." This statement cites the on-line medical resource UpToDate for the premise that "'in most patients, the initiating mechanism [of osteoarthritis] is damage to the normal articular cartilage by physical forces, which can be either single events of micro-trauma or repeated micro-traumas.'" The representative asserted that it appears the examiner was looking for a single event and had not considered that the Veteran's current disabilities may be linked to repeated in-service micro-traumas. Thus, the Board finds that the Veteran has not provided lay evidence of in-service ankle and knee injuries. To the extent that the Veteran is asserting that repeated in-service micro-traumas from his duties as a parachutist and on ambushes may have led to his current knee and ankle disabilities, the Board notes that a lay person may be competent to offer testimony on certain medical matters, such as describing symptoms observable to the naked eye, or even diagnosing simple conditions such as a dislocated shoulder. 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). However, as a lay people, neither the Veteran nor his representative is competent to offer testimony on a complex medical question such as linking the Veteran's current knee and ankle disabilities to his duties as a parachutist and on ambushes almost 40 years prior to the date of his claim. Such a question requires medical evidence from an individual who possesses the necessary education, training, and expertise to render such an opinion. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The only competent medical opinion on this question appears in the December 2008 VA examination report. This report notes that the Veteran had 30 jumps as a paratrooper from 1969 to 1971. It notes that the Veteran landed hard in jump school and hit the back of his head and tore ligaments in his jaw. His current knee and ankle complaints were of stiffness, difficulty on stairs or getting up from a crouched position, or aching knees when he gets up from his recliner. No x-rays were performed on his knees or ankles in service. The Veteran's claims file was reviewed and a thorough physical examination was conducted. The VA examiner diagnosed mild patellofemoral degenerative joint disease of the bilateral knees and bilateral ankle strain. The VA examiner found that the Veteran's ankle and knee disabilities were less likely than not due to any event while in service but were more due to the body's aging process, gravity, bone density, and weight bearing. The examiner also noted that the Veteran did not mention any complaints of any ankle or knee severe injuries while in service. She also noted that the Veteran has not had any treatments on his knees or ankles at all. She noted that his March 1971 separation examination report was negative for any complaints and that he had reported his physical condition had not changed. His ankle and knee complaints are of aching and difficulty getting up from a seated position. The examiner stated that these complaints are most likely due to the aging process and not due to any event while in service with no chronic medical visits or follow up on these conditions in over 37 years since the Veteran's separation from service. The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, his knowledge and skill in analyzing the data, and his medical conclusion. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Board finds the February 2010 VA examination report and opinion to be highly probative to resolving the issues of entitlement to service connection for disabilities of the bilateral knees and ankles. This report contains a description of the Veteran's pertinent medical history. The examiner's discussion references the specific facts of the Veteran's case, including his service treatment records. The examiner explains her opinion through citation to the facts of the Veteran's case and pertinent medical principles. The Board thus finds that the VA examiner has provided adequate rationale to render her opinion highly probative to the question at hand. The Board notes that, in a March 2011 statement, the Veteran's representative argued that the December 2008 VA examination report is inadequate because "It appears ... the examiner was looking for a single event and not considering that this veteran had 30 jumps as a paratrooper, as well as, the rigors of performing duties in a combat zone in Viet Nam. Repeated micro-traumas may have an impact on a medical opinion that the veteran's ... degenerative joint disease may be the accumulation of repeated traumas." The Board does not agree with the representative's conclusion, however, that the VA examiner was only looking for a single event and did not consider the repeated strain that was caused by the 30 parachute jumps. The Board notes that the examiner expressly noted the Veteran's in-service duties, including the parachute jumps, and cannot presume that the examiner did not consider the cumulative effect that 30 parachute jumps would have on the Veteran's knees and ankles. The Board further notes that the examiner cited the absence of subsequent knee and ankle treatment as one factor in her opinion. Furthermore, the Board notes that the VA examiner has offered other explanations (the body's aging process, gravity, bone density, and weight bearing) for the Veteran's current knee and ankle disabilities. Based on the above, the Board finds that the December 2008 VA examination report remains highly probative to the question at hand. In short, the Board finds that entitlement to service connection for a bilateral knee disability and a bilateral ankle disability is not warranted, either on a direct or presumptive basis. The Board has considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against these claims, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, entitlement to service connection for a bilateral knee disability and a bilateral ankle disability is not warranted. ORDER Entitlement to service connection for a bilateral knee disability, to include bilateral patellofemoral degenerative joint disease, is denied. Entitlement to service connection for a bilateral ankle disability, to include bilateral ankle strains and arthritis, is denied. REMAND The Veteran has also claimed entitlement to a low back disability, which he essentially contends originated during his military service. The Veteran's March 1971 separation examination report notes no abnormality of the spine and musculoskeletal system, and his service treatment records do not otherwise reflect that he complained of or sought treatment for his low back in service. In his February 2010 statement, the Veteran described how he injured his low back in service. He reported having performed 32 jumps in service and noted that he had a bad landing on one jump and dislocated his jaw. He described performing search and destroy duties in Vietnam, reporting they would go out on ambush 15 days and return for 3 days, then go out another 15 days and return for 3 days. With regard to his low back claim, the Veteran reported that he injured his back moving a locker at Fort Bragg in late 1969 and injured it again in Vietnam because he had to carry his 50 to 100 pound supply pack on his back. He reported that he had an x-ray in Vietnam and was told it was a pinched nerve. The Veteran reported that, for about four years after his return from Vietnam, his back would go out at least twice a month and that his symptoms would last four or five days. His back now goes out less often, but he still tires easily. In short, the Veteran reported a specific in-service injury to his low back. While the initial injury may have occurred at Fort Bragg, the Veteran has clearly asserted that he injured his back during combat duties while in Vietnam. The Board further finds that the reported low back injury is consistent with the time, place and circumstances of his Vietnam service. The December 2008 VA examination report found the Veteran's low back disability was less likely than not due to any event while in service but was more due to the body's aging process, gravity, bone density, and weight bearing. The examiner also noted that the Veteran did not mention any complaints of a low back severe injury while in service. She also noted that the Veteran has not had any treatments on his lower back, other than a back x-ray in service. She noted that his March 1971 separation examination was negative for any complaints and that he had reported his physical condition had not changed. The examiner further noted that she could not locate the Veteran's report of his back going out at Fort Bragg and in the jungle in Vietnam, nor did he submit any private records regarding his back going out in the last five to ten years. The Veteran's only current low back complaint is stiffness with lifting. The examiner stated that his complaints are most likely due to the aging process and not due to any event while in service with no chronic medical visits or follow up on these conditions in over 37 years since the Veteran's separation from service. The Board finds that a new opinion is necessary before this claim may be properly resolved. First, unlike the knee and ankle disabilities, the Veteran does recall a specific in-service injury of his low back. Second, the Board notes that, given the Veteran's combat status, he is presumed to have injured his low back in Vietnam as described above. The Board believes that this is significant given that the lack of medical evidence of an in-service low back disability was apparently an important factor in the December 2008 VA examiner's rationale. The Board further notes that a positive etiology opinion was rendered for the Veteran's cervical spine disability based on evidence of an in-service neck injury, despite a similar lack of evidence of post-service medical treatment for the neck. Thus, the presumption of an in-service low back injury may be important to the resolution of the low back claim. Therefore, the Board finds it necessary to obtain a new medical opinion based on the presumption that the Veteran injured his low back in service. Accordingly, the case is REMANDED for the following action: 1. The Veteran's claims file should again be sent to the December 2008 VA examiner for clarification of the question asked below. If the prior examiner is not available, the claims folder should be sent to another examiner for review. If the examiner finds that a new VA examination is necessary in order to answer the following question, the Veteran should be scheduled for a new VA examination. If a new examination is necessary, the claims folders must be thoroughly reviewed by the examiner in connection with the examination, and a complete history should be elicited directly from the Veteran. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. The examiner should identify any current low back disability and should express an opinion as to whether it is at least as likely as not (a 50 percent probability or more) that any such disability had its onset in service, was aggravated by service, or is otherwise related to any incident of service. The examiner is to presume that the Veteran sustained a low back injury in Vietnam as described by the Veteran. Any opinion expressed must be accompanied by a complete rationale. 2. After the development requested above has been completed, again review the record. If any benefit sought on appeal remains denied, the appellant and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs