Citation Nr: 1301464 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 09-04 142 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for a bilateral knee disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Tiffany Berry, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1944 to September 1945. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied service connection for a bilateral knee disorder, and found that new and material evidence had not been received to reopen the previously denied low back disorder claim. The Veteran provided testimony at a hearing before the undersigned in January 2012. A transcript of this hearing has been associated with the Veteran's VA claims folder. In April 2012, the Board reopened the Veteran's claim of entitlement to service connection for a low back disorder, and remanded both the back disorder and bilateral knee claims for additional development. All requested development has been completed and the claims are once again before the Board. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran has a low back disorder that is related to active service. 2. The preponderance of the evidence is against a finding that the Veteran has a bilateral knee disorder that is related to active service. CONCLUSIONS OF LAW 1. A low back disorder was not incurred or aggravated in active service, or otherwise related to service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 4.9 (2012). 2. A bilateral knee disorder was not incurred or aggravated in active service, or otherwise related to service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 4.9 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a February 2007 letter advised the Veteran of the evidence and information necessary to substantiate his claims, as well as his and VA's respective responsibilities in obtaining such evidence and information. Additional letters were sent in February 2008 and April 2012, which also included apprising the Veteran on how to establish service connection on a secondary basis. Relevant to the duty to assist, the Veteran's service treatment records as well as post-service VA and private treatment records have been obtained and considered. The Veteran has not identified any additional, outstanding records that have not been requested or obtained relevant to his claims. In this regard, pursuant to the April 2012 Board remand, the Veteran was provided with an opportunity to identify any treatment records pertaining to his claims. However, he has not responded. Therefore, the Board finds that VA's duty to assist has been satisfied in this regard. Additionally, the Veteran was provided VA examinations in May 2012, in accordance with the April 2012 remand directives. The Board finds these examinations and opinions are adequate, as they are predicated on a full reading of the VA medical records in the Veteran's claims file. Additionally, the opinions proffered considered all of the pertinent evidence of record, to include VA and private treatment records, the statements of the Veteran, and a physical examination, and provided a complete rationale for the opinion stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. As indicated previously, in April 2012, the Board remanded the case for additional development. As discussed in the preceding paragraphs, the Veteran was provided with an opportunity to identify any outstanding VA or private treatment records pertaining to his claims and was afforded a VA examination in May 2012 in order to determine the nature and etiologies of his claimed disorders. His claims were readjudicated in a November 2012 supplemental statement of the case. Therefore, the Board finds that the AOJ has substantially complied with the April 2012 remand directives such that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Board is satisfied that VA has provided all assistance required by the VCAA and appellate review may proceed without prejudicing the Veteran. II. Analysis The Veteran claims that he is entitled to service connection for a low back disorder and a bilateral knee disorder under several theories of entitlement. First, he claims he was in a motor vehicle accident in 1942, prior to his active duty, at which time he injured his back. The Veteran states he was given a spinal tap in service, and has suffered from a chronic low back disorder since that time. In the alternative, he claims his low back disorder is due to or aggravated by his bilateral knee disorder. Concerning the bilateral knee disorder, the Veteran states that after he received the spinal tap in service, he was unable to maintain his balance and fell on ice, injuring both knees. Also, the Veteran asserts his bilateral knee disorder is due to or aggravated by his low back disorder. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Hansen v. Principi, 16 Vet. App. 110 (2002); Caluza v. Brown, 7 Vet. App. 498 (1995). Under section 3.310(a) of VA regulations, service connection may also be established on a secondary basis for a disability which is proximately due to or the result of 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) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). In each case where a Veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, and the Veteran's treatment records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002 and Supp. 2011). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d. 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In a claim for service connection, the ultimate credibility or weight to be accorded evidence must be determined as a question of fact. The Board determines whether the weight of the evidence supports the claim, or the weight of the positive evidence in favor of the claim is in relative balance with the weight of the negative evidence against the claim, and the appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other issue, that reasonable doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102 (2012). Here, there were no musculoskeletal defects found on the Veteran's May 1944 induction examination. Treatment records dated in May 1944 note complaints of a post-spinal headache. Treatment records beginning in September 1944 note complaints of back pain, and continue throughout his active service. Treatment records dated in October 1944 note that he injured his back before induction, and that it was worse since "spinal." Also in October 1944, it was noted that he was in an auto wreck in 1942, and that his back hurt him ever since the wreck. References to inadequate personality and "back ache and nervous" were also noted. A service treatment record dated in September 1944 found that there was "some asymmetry of low back due to position patient assumes in walking with right leg partially flexed at the knee." However, his September 1945 discharge examination showed there were no musculoskeletal defects for either the knees or the back. Following service, a February 1947 VA medical examination noted, in pertinent part, that the Veteran dated back trouble to injury in car wreck in 1943. He did not think much of it since "pains him only two days." After he got in the military he claimed they "drawed me up", gave him a spinal shot, and pain in his back came back. On examination, he was found to be well-developed, in no apparent distress, and able to stand erect. The curve of his spine was normal. All motions of the spine were free and easy; no pain on motion; no loss of motion. There was also no tenderness to percussion over the spine. No bony pathology was seen on X-ray study of the lumbar spine. Diagnosis was spinal injury, no evidence of on physical examination. Thereafter, a January 1948 rating decision determined the Veteran's back condition was scoliosis, dorso lumbar junction. The decision stated that the condition was in the nature of a constitutional or developmental abnormality, not a disability within the meaning of the law. The Veteran also complained of back pain and knee pain, as reflected in his VA treatment records in December 2007. In April 2012, the Board remanded these claims for VA examinations to determine the nature and etiology of the low back disorder and bilateral knee disorder. Specifically, regarding the back disorder, the Board requested an opinion as to service connection based on aggravation and consider whether the Veteran's low back disorder pre-existed his active military service, and if so, whether the low back disorder was aggravated during his active military service beyond the natural progression of the disease. Additionally, the examiner was also asked to specifically address whether any of the Veteran's current low back disorders are a congenital defect and/or disease, and if so, whether the congenital defect and/or disease increased in severity during active service beyond the natural progress of the condition and/or was subject to a superimposed injury or disease during service, to include a spinal tap and claimed injury when he purportedly slipped and fell on ice. The Board also notes that VA regulations provide, generally, that congenital or developmental defects are not eligible for service connection as it is not considered a disease or injury for VA compensation purposes. 38 C.F.R. §§ 3.303(c), 4.9 (2012). However, the defect may be service-connected if it is subject to, or aggravated by, a superimposed disease or injury during the active military service, which then results in an additional disability. VAOPGCPREC 82-90 (1990), 56 Fed. Reg. 45,711 (1990); Winn v. Brown, 8 Vet. App. 510 (1996); Natali v. Principi, 375 F.3d 1375 (Fed. Cir. 2004). In May 2012, the requested VA examinations and opinions were obtained. Concerning the back disorder, following a review of the claims file, the VA examiner concluded that the Veteran currently suffers from arthritis in his back, as confirmed by x-ray findings. However, the examiner determined the Veteran did not enter service with a pre-existing low back disorder. Additionally, the examiner again determined that the Veteran's current disorder is not related to any treatment in service as his x-rays do not report any congenital abnormalities, such as scoliosis, and mostly report arthritic changes that would be expected in a person of the Veteran's age. As an initial matter, the Board has considered the aggravation theory of entitlement to service connection as it pertains only to the Veteran's claim for a low back disorder. However, in this case, the Veteran's low back was marked as normal at entry into service and there is no clear and unmistakable evidence that any claimed back disorder pre-existed his military service. This finding was confirmed by the May 2012 VA examiner. Consequently, the Board finds that the presumption of soundness at entry into service is not rebutted by the evidence of record. 38 U.S.C.A. § 1111 (West 2002). Therefore, the Board will now consider the Veteran's claims for entitlement to service connection on a direct basis for both the low back and bilateral knee disorders. First, the May 2012 VA examinations show findings of low back and bilateral knee arthritis. Therefore a current disability is shown. Service treatment records show that the Veteran sought treatment for complaints of pain in his low back on several occasions, and one notation pertaining to his knees. A finding of a nexus between the Veteran's current diagnoses of arthritis and an in-service injury or event is still needed to warrant a grant of service connection. Evidence of diagnoses of these disorders are first shown many years after separation from active service and cannot be presumed to have been incurred during service. The Board also notes that the passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Here, concerning the issue of direct incurrence of a low back disorder, the VA examiner determined there was no evidence a spinal tap was given in service, and the service treatment records did not indicate a medical reason why one would be needed. The examiner stated a spinal tap is performed when a disease of the central nervous system is thought to be happening and is used as a last resort. The Veteran's medical records do not reflect this. As to the question of a superimposed injury, the examiner stated the Veteran's service treatment records do not include a history of a slip and fall on ice, or treatment due to such a fall. Thus, the examiner stated that without "acceptable documentation" of such an event and the non-existent congenital condition, there was no aggravation of the non-existent congenital condition. Therefore, the examiner concluded that the Veteran's current low back disorder is not related to his military service or any treatment he received during service. The Board similarly finds that the currently claimed slip and fall is not credible. The Veteran's service treatment records are replete with entries of the Veteran's contacts with the medical service facilities but nowhere is there reported such an injury. Also, in a November 2007 statement the Veteran indicated that he injured his knees and lower back from lifting heavy military equipment. The Veteran's statements are not reliable, and therefore, cannot be deemed credible. Finally, the examiner stated the Veteran's low back disorder was not caused or aggravated by his bilateral knee disorder because medical records do not indicate a specific abnormality with the Veteran's knees. The current x-rays regarding the Veteran's knees indicate changes that would be expected in a person the Veteran's age and no specific changes to indicate trauma to the knees. As such, medical assumption based on the discharge physical was that his knees did not have any medical problems so, therefore, could not cause or aggravate a non-existent congenital back problem. Concerning the Veteran's bilateral knee disability, the examiner determined that the currently diagnosed disorder is not due to a reported slip and fall in service. The examiner relied on the lack of in-service documentation but, more significantly, on the fact the Veteran did receive treatment in service but there was no indication of an injury. Additionally, the examiner determined the Veteran's current bilateral knee disorder was not caused or aggravated by the low back disorder because the medical records and current x-rays do not show the Veteran has a congenital abnormality and, therefore, could not case the bilateral knee disorder or any aggravation of the disorder. Based on the findings of the May 2012 VA examiner, there is no medical evidence of a nexus (i.e., link) between the Veteran's low back and bilateral knee disorders and his military service, such that service connection for either disability may be established. As such, there is no way the Veteran may establish a nexus between these disorders on a secondary basis. Velez, 11 Vet. App. at 158. See also Wallin, 11 Vet. App. at 512, and McQueen, 13 Vet. App. 237 (competent medical nexus evidence is required to associate any given disorder with a service-connected disability). The Board finds most significant that regardless of the occurrence of any spinal tap or slip and fall in service, the fact remains that the Veteran does not currently have disabilities of the knees and back consistent with exposure to a spinal tap, trauma, or superimposed trauma but rather disabilities consistent with a post-service event-namely, aging. The mere fact of an in-service injury is not enough. There must be chronic disability resulting from such injury which is not shown here. In fact, the only evidence in support of his claims under any theory of entitlement are the Veteran's own statements, including his January 2012 Travel Board hearing testimony. He asserts continuity of symptomatology since service for these disorders as a nexus between his claimed disorders and in-service treatment for back and knee pain. The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995); Gabrielson v. Brown, 7 Vet. App. 36 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter 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 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010); Waters v. Shinseki, 601 F.3d 1274 (2010). In this case, as the Veteran testified to during his January 2012 Travel Board hearing and multiple statements in support of his claims, he is competent to describe his in-service low back and bilateral knee complaints and his current manifestations of these disorders, such as pain, because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). However, the Board accords his statements regarding the etiology of any low back or bilateral knee disorders little probative value as he is not competent to opine on such a complex medical question. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. Jones v. West, 12 Vet. App. 460 (1999). The Veteran has offered only conclusory statements regarding the relationship between his in-service low back and bilateral knee complaints and his current diagnoses of arthritis in both locations. In contrast, the May 2012 examiner took into consideration all the relevant facts in providing opinions, to include the nature of the Veteran's in-service complaints and as well as the current nature of his claimed disorders. Also, the examiner has specialized expertise to address the medical nexus question. Therefore, the Board accords greater probative weight to the May 2012 examiner. To the extent that the Veteran has contended that he has experienced back and bilateral knee symptomatology since his service, what he contends are symptoms due to service have been ruled out by competent and credible medical evidence that his current disabilities are not consistent with the claimed in-service injuries and events. Accordingly, the claims of entitlement to service connection for low back and bilateral knee disorders must be denied. The criteria to establish entitlement to service connection for the claimed disorders have not been established, either through medical evidence or through the Veteran's lay statements. In arriving at the decision to deny the claims, the Board finds that the preponderance of the evidence is against the claims, the claims must be denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED ON NEXT PAGE) ORDER The claim for service connection for a back disorder is denied. The claim for service connection for a bilateral knee disorder is denied. ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs