Citation Nr: 1301682 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 08-28 209 ) 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 disability. 2. Entitlement to service connection for a bilateral knee disability. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD M. H. Stubbs, Counsel INTRODUCTION The Veteran served on active duty from December 1965 to December 1967. The Veteran also served in the Army National Guard through 2004. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 decision rendered by the Houston, Texas, VA RO. The Board notes that the Veteran was scheduled for a hearing before a member of the Board on June 19, 2012. On June 4, 2012, the Veteran's representative submitted a statement on his behalf indicating that he would be unable to appear for his hearing and wished for his appeal to be considered without the benefit of a hearing. As such, the Board will proceed to adjudicate the claims. Additionally, the Board notes that the claims file does not contain a copy of the Veteran's substantive appeal. The Veteran was sent an April 29, 2010, letter informing him that the VA computer system indicates that a VA Form 9 Appeal was received on September 5, 2008. The Veteran was provided 30 days to furnish an enclosed VA Form 9 and informed that, if a VA Form 9 was not received within 30 days, the Veteran's appeal would be closed out. The Veteran did not submit a new substantive appeal in response to this letter. However, the Board has considered the case of Percy v. Shinseki, 23 Vet. App. 37 (2009), wherein the United States Court of Appeals for Veterans Claims (Court) found that 38 U.S.C.A. § 7105 was not intended to foreclose the Board's exercise of jurisdiction over a matter in which a substantive appeal was untimely. Consequently, because the 60-day filing period is not jurisdictional, VA may waive any issue of timeliness in the filing of the substantive appeal, either explicitly or implicitly, and is not required to close an appeal for failure to file a timely substantive appeal. The Court in Percy also went on to determine that any issue concerning the timely filing of the substantive appeal in that particular case was waived by VA, due to the fact that VA treated the Veteran's appeal as if it were timely perfected. Likewise, in this case, the Veteran was issued a supplemental statement of the case (SSOC) in December 2011 with regard to these issues and was scheduled for a Board hearing with regard to these issues in June 2012. Therefore, the Board will construe these claims as being properly appealed and before the Board for adjudication. This appeal was previously before the Board in July 2012. The Board reopened the claims currently on appeal and remanded so that the Veteran could be scheduled for VA examinations, and additional service records could be requested. The case has been returned to the Board for further appellate consideration. The issues of entitlement to service connection for diabetes and hypertension have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The preponderance of the competent medical and other evidence of record reflects that the Veteran's low back disability is not causally related to his service, may not be presumed so, and has not been chronically or continually disabling since his service. 2. The preponderance of the competent medical and other evidence of record reflects that the Veteran's bilateral knee disability is not causally related to his service, may not be presumed so, and has not been chronically or continually disabling since his service. CONCLUSIONS OF LAW 1. Service connection for a low back disability is not warranted. See 38 U.S.C.A. §§ 1110 , 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.655 (2012). 2. Service connection for a bilateral knee disability is not warranted. See 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.655 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The VCAA duty to notify was satisfied in this case by way of a letter dated July 2007 that fully addressed the notice elements and was sent prior to the initial AOJ decision in this matter. The letter informed the Veteran of what information and evidence was required to substantiate the service connection claims on a direct and presumptive basis and of the Veteran's and VA's respective duties for obtaining evidence. The Veteran was also provided with notice of the type of evidence necessary to establish a disability rating and an effective date for the disabilities on appeal. The Veteran has also had representation throughout the duration of the appeal. See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006) (holding that representation by counsel "is a factor that must be considered when determining whether that appellant has been prejudiced by any notice error."). In sum, the Board finds that any deficiency in the notice to the Veteran or the timing of the notice is harmless error. See Bernard, 4 Vet. App. 384, 394 (1993). The Board also finds that all of the relevant facts have been properly developed, and that all available evidence necessary for an equitable resolution of the issues has been obtained. The Veteran's available service treatment and post-service treatment records have been obtained. In this regard, service treatment records (STRs) associated with the claims file are incomplete and efforts to obtain complete copies of these records were unsuccessful. The Veteran was notified of the unavailability of these records in November 2012. If he had such records in his position he was asked to provide them to VA. Likewise, if he knew the location of any outstanding records, he was asked to inform VA. The Veteran did not respond. The Court of Appeals for Veterans Claims (Court) has held that in cases where records once in the hands of the Government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board's analysis of the Veteran's claim has been undertaken with this heightened duty in mind. The Veteran was also afforded VA examinations in connection with the current claims. These examinations evaluated the Veteran's low back and bilateral knee disabilities in conjunction with his prior history and described these disabilities in sufficient detail so the Board's evaluation of them is an informed one. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). As such, VA has complied, to the extent required, with the duty-to- assist requirements. 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c)-(e). Laws and Regulations The Veteran contends that his currently diagnosed low back and bilateral knee disabilities are related to his period of active service. Service connection may be granted for disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease 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 for certain disabilities, including arthritis, may be granted on a presumptive basis if manifested to a compensable degree within one year after separation from service. 38 C.F.R. § 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established, there is no requirement of an evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. See 38 C.F.R. § 3.303(b). When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. See 38 C.F.R. § 3.303(b); see also Savage v. Gober, 10 Vet. App. 488, 495-496 (1997). In Voerth v. West, 13 Vet. App. 117, 120 (1999), the Court stated that in Savage it had clearly held that 38 C.F.R. § 3.303 does not relieve the claimant of his burden of providing a medical nexus. VA law provides that active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of INACDUTRA during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(21), (24); 38 C.F.R. § 3.6(a), (d); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). The Court has held that VA service connection compensation presumptions do not apply with only ACDUTRA or INACDUTRA service. Id. at 477-78. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert, 1 Vet. App. 49, 55-56 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the Veteran. The Board has an obligation to provide reasons and bases supporting this decision, but there is no need to discuss, in detail, all of the evidence submitted by the Veteran on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (finding that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis herein focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Preliminarily, the Board acknowledges that in cases where, as here, the VA was unable to obtain the Veteran's complete National Guard records, the Board has a heightened duty to consider and discuss the evidence of record and supply well-reasoned bases for its decision as a consequence of the missing service records. Washington v. Nicholson, 19 Vet. App. 362, 371 (2005). STRs for the Veteran's period of active service from December 1965 to December 1967 are associated with the claims file, and are negative for a diagnosis of or treatment for a low back disability or a bilateral knee disability and there is no evidence of such within one year after discharge from service. Factual Background and Analysis In May 2007, the Veteran filed his claim to reopen claims of entitlement to service connection for a low back and bilateral knee disabilities. He argued that the current pain and stiffness he felt in his knees was directly related to his work while serving on active duty. He stated his MOS was "Ammunition" and he regularly lifted and carried projectiles weighing 100 lbs or more. He also stated he ran daily with gear weighing up to 60 lbs, and that he believed this adversely affected his knees and back. Along with his claim, the Veteran provided an April 2007 letter from his treating physician. Dr. R.J.L. noted he initially saw the Veteran for an orthopedic evaluation in April 2007. The Veteran related a history of military activity with extensive periods of jumping and running. He also worked as a sheriff deputy, and "recently has had problems with both knees with increased discomfort going upstairs, squatting, stooping and bending." He was diagnosed with bilateral chondromalacia patella, and patella femoral joint space narrowing by x-ray report. Dr. R.J.L. noted that "in all probability a degree of his patellar femoral wear is related to his initial Army-related military activity." In October 2007, Dr. R.J.L. provided an additional letter which reiterated that the Veteran's bilateral chondromalacia patella was related to his military active-duty running. The Veteran sought treatment for chronic low back spasms secondary to degenerative changes of the lumbosacral spine in October 2007. Dr. R.J.L. noted that "these were again felt related to and aggravated by his military activity." Although the Veteran was provided with VA Form 21-4142, "Authorization and Consent to Release Information" along with his July 2007 VCAA notice letter, he did not provide release information for any private treatment providers. While the claims file contains statements from Dr. R.J.L., it does not contain treatment records from Dr. R.J.L. In November 2011, the Veteran was afforded VA examinations of his knees and low back. He was diagnosed with chondromalacia patella and chronic low back pain. The examiner opined that the Veteran's patellofemoral syndrome/chondromalacia patella and lumbar spondylosis were less likely as not related to his active service. The examiner noted that the Veteran's disabilities were common in the general population irrespective of military service, there were no in-service complaints, and the Veteran avoided treatment for his disabilities over the years, including over the counter medication. The examiner noted the Veteran had 25 years of uninterrupted service as a sheriff's deputy. The Board remanded the claims in July 2012, with directives for the AMC to attempt to obtain all of the Veteran's Army National Guard records, and so that the Veteran could be afforded additional VA examinations. The Board noted that the November 2011 VA examinations did not contain a full discussion of all the diagnoses related to his back and knees. The Texas Army National Guard was only able to locate certain records from the Veteran's National Guard service, and provided those records to the VA. In November 2012, the VA notified the Veteran that an attempt to obtain treatment records from the Texas Army National Guard was unsuccessful and requested that he provide any records in his possession. The Veteran did not respond to this request. In November 2012, the Appeals Management Center (AMC) provided a memorandum finding the Texas Army National Guard records unavailable. Although not all of the Veteran's Army National Guard records were obtained, the claims file does contain numerous examinations from his period of active service and his periods of ACDUTRA. Regarding his period of active duty from December 1965 to December 1967, the service treatment records do not contain any complaints of or treatment for knee or back disorders. The Veteran's induction and separation examinations are available and he show normal evaluations of the lower extremities and spine. Additionally available are reports of medical examinations from May 1976, July 1980, July 1984, January 1988, December 1991, May 1996, and April 2001. The Veteran was noted to have a normal evaluation of the lower extremities and spine on all of these examinations. Likewise, the reports of medical history completed by the Veteran himself do not contain complaints of knee or low back problems. Lastly, a report of medical examination from May 2004 noted full active range of motion of the lower extremities and spine, which were also noted to be normal on clinical evaluation. When asked about his medical conditions at the time, the Veteran singularly indicated that he was on medication for hypertension. While serving with the National Guard in July 2001, the Veteran was put on a running profile due to patellofemoral syndrome. His temporary profile expired after one year. The DA Form 3349 does not include a description of the onset or circumstances of the patellofemoral syndrome or if it was related to his ACDUTRA. In October 2012, the Veteran was afforded an additional VA examination. After a review of the claims file, including the Veteran's service treatment records, the examiner opined that his bilateral knee and low back disabilities were less likely than not incurred in or caused by his active service. The examiner noted that the Veteran's Army National Guard records included a medical report from August 1972, which was silent for complaints of a knee or back problem. The examiner noted that this report was completed more than four years after the Veteran's discharge from active service, and was a good indication that he did not yet have knee or back symptoms. The examiner then reviewed the Veteran's National Guard records, and noted that all of the records prior to 2001 were silent for complaints of knee or back symptoms. In 2001, he was placed on a profile for running, but was noted in 2004 to have a normal knee examination. The examiner stated that when looking at the veteran's records in totality it was apparent that he did not have problems with his knees or back until 2007. Prior to the private physician's April 2007 letter there were no records documenting limitations of the knees or back apart from the 2001 patellofemoral syndrome. The examiner opined that the 2001 patellofemoral syndrome was a temporary problem as there were no additional knee complaints for six years. The examiner felt that there was "insurmountable evidence that the Veteran did not have any aggravating or exacerbating events regarding his knee or low back. Current low back and knee [disabilities] are not caused by ore a result of active duty service or Army National Guard service." Initially, the Board notes that the Veteran was not diagnosed with degenerative changes to his knees or back until more than 40 years after discharge from active service. He additionally did not complain of symptoms associated with a knee or back disorder within one year of separation. As such, entitlement to presumptive service connection is not warranted. In assessing the service connection claims based on the available evidence of record, the Board finds that the opinion of the October 2012 VA examiner is more probative than the statements of the Veteran's private physician. Factors for assessing the probative value of a medical opinion are the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-49 (2000). In contrasting these opinions, the Board is cognizant that the United States Court of Appeals for Veterans Claims (Court) has recently stressed that "[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." See generally Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Here, the VA examiner has thoroughly reviewed the Veteran's service treatment records and examined the Veteran prior to providing a negative nexus opinion. The Court in Nieves noted that when evaluating the probative value of a medical opinion, the examiner's review of records from claims file, while important, is not dispositive absent review and consideration of most relevant case facts. Here, however, a review of the service treatment records reveals that the Veteran had a normal evaluation of his knees and back in 2004, along with active full range of motion. Without a review of the service treatment records, the private physician was relying on the medical history provided by the Veteran. The Veteran indicated that his knee and back problems began in the 1960s during his first period of service. A review of the service treatment records would have revealed that the Veteran continuously denied symptoms associated with his knees and back both during service in the 1960s and subsequently. The Board finds the October 2012 VA examiner's nexus opinions to have more probative weight as they are supported by a rationale which includes a discussion of medical records. The private physician does not provide a rationale for his positive nexus opinions. Additionally, the private physician did not discuss the Veteran's 25-year career as a Sheriff's deputy when relating his knee and back problems to his two years of service more than 40 years prior. In adjudicating a claim, the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The Board acknowledges that the Veteran is competent to give evidence about what he experienced. See Layno v. Brown, 6 Vet. App. 465 (1994). Competency of evidence, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). See also Buchanan (The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. If the Board concludes that the lay evidence presented by a veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence.) The Veteran has reported that his knee and back pain began during service in the 1960s, and that over time they have worsened. The Board finds the Veteran's reports of continuity of symptomatology to not be credible. The Veteran's service with the Army National Guard included numerous medical reports and examinations. He was placed on a temporary profile for his knees in 2001, although there is no indication from the record whether the profile was a result of National Guard service or a work-related injury. By 2004, his knees had a full range of motion. Other than the 2001 profile, the Veteran continuously denied a medical history and stated he was in good health. For the foregoing reasons, the claims for service connection for a bilateral knee disability and low back disability must be denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990). ORDER Entitlement to service connection for a low back disability is denied. Entitlement to service connection for a bilateral knee disability is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs