Citation Nr: 1300642 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 07-10 082A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for a left knee disorder, to include as secondary to a low back disorder. 3. Entitlement to service connection for a right knee disorder, to include as secondary to a low back disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD David S. Ames, Counsel INTRODUCTION The Veteran served on active duty from August 1967 to August 1969. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office in Montgomery, Alabama (RO). This case was remanded by the Board in December 2010 for additional development. FINDINGS OF FACT 1. The preponderance of the competent and credible evidence of record demonstrates that the Veteran's currently diagnosed back disorder is not related to military service. 2. The preponderance of the competent evidence of record shows that the Veteran's currently diagnosed left knee disorder is not related to military service or to a service-connected disability. 3. The preponderance of the competent evidence of record shows that the Veteran's currently diagnosed right knee disorder is not related to military service or to a service-connected disability. CONCLUSIONS OF LAW 1. A low back disorder was not incurred in, or aggravated by, active military service. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 2. A left knee disorder was not incurred in, or aggravated by, active military service, nor is it proximately due to, or aggravated by, a service-connected disability. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). 3. A right knee disorder was not incurred in, or aggravated by, active military service, nor is it proximately due to, or aggravated by, a service-connected disability. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the Veteran is harmless because of the thorough and informative notices provided throughout the adjudication and because the Veteran had a meaningful opportunity to participate effectively in the processing of the claims with an adjudication of the claims by the RO subsequent to receipt of the required notice. The record does not show prejudice to the Veteran, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in letters dated in June 2005, May 2006, and January 2011. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). While the Veteran did not receive a VCAA letter with respect to secondary service connection, the Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claims on both a direct and secondary basis. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the Veteran and had satisfied that duty prior to the adjudication in the January 2012 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the Veteran of any evidence that could not be obtained. The Veteran has not referred to any additional, unobtained, relevant, available evidence. A VA examination which is sufficient for adjudication purposes was provided to the Veteran in connection with his low back claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006), Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). While a VA examination has not been accorded the Veteran with respect to his left and right knee claims, such an examination is not required as there is no competent evidence of record that indicates that the Veteran's currently diagnosed left and right knee disorders are related to military service or to a service-connected disability. 38 C.F.R. § 3.159(c)(4). Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Generally, 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. § 1110; 38 C.F.R. § 3.303(a). In addition, 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). Service connection may be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by a service connected disability or (b) aggravated by a service connected disability. Id.; Allen v. Brown, 7 Vet. App. 439, 488 (1995) (en banc). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Low Back The Veteran's service treatment records show that in July 1969 the Veteran reported being in an automobile accident and receiving whiplash to his neck, with associated neck pain. On x-ray examination, the Veteran's cervical spine was normal. On an August 1969 separation report of medical history, the Veteran denied having, or ever having had, back trouble of any kind. On clinical evaluation, the Veteran's spine was normal. After separation from service, in a June 1994 private medical report, the Veteran stated that he had injured himself on May 5, 1994, when he fell off a fork lift. He reported that he was told that he had a compression fracture of L4 and L5 and complained of continuous pain which radiated into his legs. The report stated that magnetic resonance imaging (MRI) of the Veteran's back showed mild spinal stenosis at L2, L4, and L5. After physical examination, the impression was persistent back pain and lumbar radiculopathy. The medical evidence of record shows that a low back disorder has been consistently diagnosed since June 1994. In a March 1996 private medical report, the Veteran complained of severe back pain which began on Friday and had gotten progressively worse. In an April 1996 private medical report, the Veteran reported that he thought he had injured his back sometime in the recent past and that the pain had gradually gotten worse. In a second April 1996 private medical report, the Veteran reported that he had previously hurt his low back, after which his back was doing well, until he stepped into a hole and re-injured it. In a March 1997 private medical report, the Veteran reported that he had undergone two back operations after getting hurt on the job, and continued to experience back trouble. He reported that he was injured in 1994, and that he was a "normal person" before the 1994 back injury. The Veteran reported that he had refrained from work for about eight months following the 1994 injury and then went back to work until he re-injured his back approximately one year before, followed by surgery in June 1996. In a June 1997 private medical report, the Veteran stated that he had sustained a back injury after falling in 1994. In a February 1998 private medical report, the Veteran reported a history of falling in 1994 while on the job. He reported that he slipped while getting out of his truck, after which he experienced low back pain. The Veteran reported that his employer sent him to a hospital the next day for x-rays, which showed three or four cracked discs. He reported that he received treatment for his back symptoms for five to seven months, then went back to work for one week, at which time he re-injured his back while using a shovel, resulting in additional treatment for one to three months. Following this treatment, the Veteran reported that he returned to work as a truck driver for one year before he ran into a pot hole and hurt his back again, after which he underwent back surgery. A June 1998 Social Security Administration disability determination found that the Veteran became disabled on March 23, 1996, with the primary diagnosis of disorders of the back and the secondary diagnosis of degenerative arthritis. A January 2001 private medical addendum stated that the physician was asked to address the question of whether the Veteran's continued medication use related to his injury in 1994. The examiner opined that it did, stating that the Veteran continued to have chronic back pain, had two operations in 1996, had never returned to work, and had intermittently required medication. In a September 2004 private medical report, the Veteran complained of back pain since 1994. He reported that he experienced an on-the-job injury when he fell off of a forklift and landed on his buttock. He reported that he had experienced pain in his lower back since that time. In an August 2005 VA outpatient medical report, the Veteran complained of pain in his lower back since 1996. In a February 2011 VA spine examination report, the Veteran reported that he was struck in the back by a flying object in 1969 while serving in Vietnam. He reported that, following separation from service, he was treated by private physicians and had two back surgeries in 1996. After physical and x-ray examination, the diagnosis was degenerative disc disease and degenerative joint disease of the lumbosacral spine. The examiner stated that an opinion could not be provided as to the relationship between the Veteran's back disorder and service as the claims file was not available for review. Following a review of the claims file, in a February 2011 addendum, the examiner opined that it was less likely as not that the Veteran's back disorder was related to service. The examiner stated that it was more likely as not that the disorder was an ongoing condition caused by his job-related injury which had required two surgical procedures. The preponderance of the competent and credible evidence of record demonstrates that the Veteran's currently diagnosed back disorder is not related to military service. The Veteran's service treatment records are negative for any complaints or diagnosis of a back disorder. While the Veteran has a current diagnosis of a back disorder, there is no evidence of record that a back disorder was diagnosed prior to May 1994, over 24 years after separation from military service. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (ruling that a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability); Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the Veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition). In addition, all of the medical evidence of record relates the Veteran's currently diagnosed back disorder to a post-service injury the Veteran experienced in 1994, as well as subsequent re-injuries. This medical evidence includes numerous private medical reports as well as the addendum to the February 2011 VA spine examination report. Under certain circumstance, lay evidence can be competent and sufficient to establish the etiology or diagnosis of a condition. Davidson v. Shinseki, 581 F.3d 1313 (2009). However, such etiological evidence is only competent to the extent that it relies on observable symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). In this case, the Veteran claims that his back disorder is related to an in-service injury that he experienced in Vietnam in 1969. However, the Veteran's current etiological claim is contradicted by the evidence of record, including his own statements. The Veteran actively denied ever experiencing any back symptoms on separation from service in August 1969. There is no evidence of record that the Veteran ever sought treatment for a back disorder from August 1969 to May 1994. From May 1994 to the date of his claim in June 2005, the Veteran consistently related his low back disorder to his post-service injury in 1994 and subsequent re-injuries. This evidence includes a March 1997 private medical report, in which the Veteran actively reported that he was a "normal person" before the 1994 back injury. Indeed, in an October 2004 application for VA pension, the Veteran specifically stated that his back pain began in 1996. Accordingly, the Board finds the Veteran's lay statements that his current back symptoms began in service and existed continuously after separation from service are not credible. Thus, there is no competent and credible evidence of record that relates the Veteran's currently diagnosed back disorder to military service. As such, service connection for a low back disorder is not warranted. In reaching this decision, the Board considered the doctrine of reasonable doubt. However, as there is no competent and credible evidence that relates the Veteran's currently diagnosed low back disorder to military service, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Bilateral Knees The Veteran's service treatment records are negative for any complaints or diagnosis of a knee disorder. On an August 1969 separation report of medical history, the Veteran denied having, or ever having had, swollen or painful joints, arthritis, joint deformity, lameness, or a trick or locked knee. On clinical evaluation, the Veteran's lower extremities were normal. After separation from military service, in a June 1997 private medical report, the Veteran complained of right knee pain since March 1996. He reported that he experienced a back injury in 1994, but did not have really significant problems with the right knee until about March 1996. Following physical and x-ray examination, the impressions were patellofemoral pain with subluxation; medial meniscal tear, probable; and popliteal cyst. The medical evidence of record shows that a right knee disorder has been consistently diagnosed since June 1997. In a February 1998 private medical report, the Veteran reported that he had torn cartilage in his right knee and had worn a knee brace for approximately one year. Following physical and x-ray examination, the diagnosis was degenerative arthritis of both knees with torn cartilage in the right knee. The medical evidence of record shows that a left knee disorder has been consistently diagnosed since February 1998. In a March 1998 private medical report, the Veteran reported that his left knee pain had developed over the past couple of months. In an August 2005 VA outpatient medical report, the Veteran complained of pain in his knees since 1996. In a May 2009 hearing before the RO, the Veteran reported that he experienced aches and pain during military service, but that his knees did not bother him at that time. He reported that his knees began bothering him after his fall in 1994. The Veteran reported that he believed his knee disorders were secondary to his back injury. The preponderance of the competent evidence of record shows that the Veteran's currently diagnosed left and right knee disorders are not related to military service or to a service-connected disability. The Veteran's service treatment records are negative for any complaints or diagnosis of a knee disorder. While the Veteran has a current diagnosis of left and right knee disorders, there is no evidence of record that a knee disorder was diagnosed prior to June 1997, over 27 years after separation from military service. See Maxson, 230 F.3d 1330; Mense, 1 Vet. App. at 356. In addition, there is no medical evidence of record which relates the Veteran's left or right knee disorders to military service. The Veteran claims that his currently diagnosed left and right knee disorders are secondary to his low back disorder, and there is medical evidence of record which is consistent with such an etiology. However, as discussed above, service connection has been denied for the Veteran's low back disorder. As such, service connection for left and right knee disorders is not warranted even if the disorders are secondary to the Veteran's low back disorder. The Board has also considered the Veteran's lay statements with respect to his left and right knee disorder claims. However, in this case, the Veteran does not claim that he experienced knee symptoms continuously since military service. Instead, the Veteran claims only that he experienced knee pain in service and that knee pain subsequently returned following his injury in 1994. The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating and determining causal connections for orthopedic conditions. See King v. Shinseki, No. 2011-7159 (Fed. Cir. Dec. 5, 2012). Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value. The Veteran's statements therefore do not demonstrate continuity of symptomatology, and are not competent to demonstrate that his currently diagnosed left and right knee disorders are related to an in-service injury or a service-connected disability. See Davidson, 581 F.3d 1313; Barr, 21 Vet. App. at 307. Accordingly, the preponderance of the competent evidence of record shows that the Veteran's currently diagnosed left and right knee disorders are not related to military service or a service-connected disability. As such, service connection for left and right knee disorders is not warranted. In reaching this decision, the Board considered the doctrine of reasonable doubt. However, as there is no competent evidence that relates the Veteran's currently diagnosed left and right knee disorders to military service or to a service-connected disability, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a low back disorder is denied. Service connection for a left knee disorder is denied. Service connection for a right knee disorder is denied. ____________________________________________ M. C. Graham Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs