Citation Nr: 1306990 Decision Date: 02/28/13 Archive Date: 03/01/13 DOCKET NO. 10-34 755 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a left ankle/leg disability. 2. Entitlement to service connection for a bilateral wrist disability. 3. Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The Veteran served on active duty from April 1954 to April 1956. This appeal to the Board of Veterans' Appeals (Board) arises from a January 2010 rating decision of the Muskogee, Oklahoma Regional Office (RO) of the Department of Veterans' Affairs (VA), which denied service connection for left leg/ankle disability, bilateral wrist disability, low back disability, hearing loss and tinnitus. In January 2012, a Board videoconference hearing was held before the undersigned Acting Veteran's Law Judge; a transcript of the hearing is of record. In February 2012, the case was remanded to the RO, via the Appeals Management Center (AMC) for further development. In a January 2013 rating decision, the RO granted service connection for hearing loss and tinnitus. Consequently, these claims are no longer on appeal. 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 Veteran's current left ankle/leg disability is not shown to be related to service, including any auto accident therein. 2. The Veteran's current bilateral wrist disability is not shown to be related to service, including any auto accident therein. 3. The Veteran's current low back disability is not shown to be related to service, including any auto accident therein. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left ankle/leg disability are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). 2. The criteria for entitlement to service connection for a bilateral wrist disability are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). 3. The criteria for entitlement to service connection for a low back disability are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the Veteran 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. See 38 C.F.R. § 3.159(b)(1). A November 2009 letter explained the evidence necessary to substantiate the claims and VA and the Veteran's respective responsibilities for obtaining evidence. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, the letter explained how a disability rating is determined and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). This letter was provided to the Veteran prior to the initial adjudication of his claims, pursuant to Pelegrini v. Principi, 18 Vet. App. 112 (2004). With regard to the duty to assist, the claims file contains VA treatment records, private treatment records, Social Security Administration (SSA) records, the reports of VA examinations and the assertions of the Veteran and his representative, including the transcript of the January 2012 Board hearing. In the February 2012 remand, the Board specifically instructed the RO/AMC to contact the National Personnel Records Center (NPRC) to make an additional search for service treatment records; to obtain available SSA records; to obtain outstanding VA treatment records and to afford the Veteran with VA examinations for the leg, wrists and low back. The Board finds that the RO adequately complied with all of these remand instructions. In regard to the additional search for the service treatment records, the Board notes that as these records have been found to be fire-related, VA is under a heightened duty to assist the Veteran in locating evidence that might support his assertion that he suffered back, wrist and ankle/leg injuries in service. In this regard, the RO initially advised him in the November 2009 letter of potential alternative sources of evidence, along with providing him with VA Form NA 13055, Request for Information Needed to Reconstruct Medical Data, allowing him to identify medical treatment he received in service in conjunction with his claimed disabilities. Also after the Veteran returned Form NA 13055, noting treatment in August 1954, the RO initially attempted to obtain records of such treatment. Additionally, pursuant to the February 2012 remand, the RO/AMC made a specific follow-up request for such treatment to Code MO5. In response, the NPRC informed the RO/AMC that the Veteran's complete unit of assignment at the time of the treatment was required in order to conduct this additional search. Subsequently, in a September 2012 letter, the RO/AMC asked the Veteran to provide this complete unit of assignment information. The Veteran did not provide a response, however. Then, in an October 2012 memorandum, the RO/AMC made a formal finding that the service treatment records were unavailable, noting the Veteran's non-response and that a complete review of the claims file had not resulted in discovery of the needed unit information. There is no indication that there are any other alternative sources from which records of treatment in service for the Veteran's asserted injuries could be obtained. Accordingly, the Board finds that VA has met its heightened duty to assist. The Board has found nothing to suggest that there is any outstanding available evidence with respect to the Veteran's claim. No further action is required to comply with the duties to notify and assist the Veteran in developing the facts pertinent to his claim. Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). That an injury incurred in service alone is not enough. There must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). In order to establish service connection for a claimed disorder, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). 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. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Certain listed, chronic disabilities, including arthritis (i.e. degenerative joint disease), are presumed to have been incurred in service if they become manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). During a July 1980 private medical examination, the Veteran reported that he had been a driver of a Volkswagen Bug when his car was rear-ended as the lead car in a three car pile-up. With impact he was jerked about. He initially went home and within the next few hours he noticed pain and stiffness in his low back, neck and upper back. These symptoms continued and he sought medical attention. The Veteran reported that he had been in good health previously and denied prior similar injuries or complaints in any of the injured areas. He noted that he had injured his right knee a year before the accident and still had some aching in the knee. Current X-rays showed a moderate amount of degenerative changes of the lower dorsal and the lumbar spine with mild narrowing of the disc spaces in the lower lumbar spine at L4-L5, L5-S1. The diagnosis was strain and sprain in the muscles and ligaments of the cervical, dorsal and lumbosacral spine with degenerative arthritis of the lower dorsal and lumbar spine and discogenic changes in the lower lumbar spine. July 1980 electromyogram testing produced a diagnostic impression of EMG findings suggestive of bilateral S1-S2 nerve root irritation, mild, acute, right greater than left. An August 1980 private orthopedic consultation indicates that the Veteran, a construction worker, was seen with complaints of neck and low back pain resulting from the March 1980 accident. The Veteran also reported a prior injury to his right knee in 1979 when it was struck by a hammer and that he continued to have right knee pain and giving way without episodes of locking. The rest of his past medical history was noted to be "noncontributory." The diagnoses were back sprain with right sciatica and right S1 radiculitis, knee sprain due to industrial trauma and neck sprain due to automotive trauma. In a November 1980 supplemental report, the private physician noted that the Veteran had sustained painful, severe and disabling musculoligamentous injuries to the entire spine as a result of the previously described car accident of March 2, 1980. He was having radicular symptoms to the lower extremities and there was concern that he might have a ruptured disc or spinal stenosis. In a February 1981 supplemental report, the private physician indicated that a November 1980 CT scan had shown an L4-5 prominent disc bulge versus herniation and moderate to severe hypertrophic changes involving the L-5 lamina bilaterally, which was consistent with an acquired bony stenosis. The L3-4 and S-1 lamina demonstrated less extensive changes, with mild to moderate hypertrophic changes in the facet joints noted. An April 1981 supplemental report indicates that when the Veteran was seen in March 1981, he had continued to exhibit pain in the lumbosacral spine and right lower extremity. He also had developed some pain in his knees and stiffness. In May 1981, the Veteran was also noted to have developed pain to a lesser extent in the left lower extremity. In April 1981, the RO received a claim from the Veteran for compensation or pension based on a low back problem. On the claim form, in response to a question whether he was treated for the claimed back problem during service, the Veteran responded, "N/A" (i.e. "not applicable"). Similarly when asked to list the civilian physicians and hospitals where he had been treated for low back problems before, during or since service, and any military hospitals since discharge, the Veteran responded, "N/A." At a June 1981 VA examination, the Veteran reported that he had been injured in a car accident in March 1980. He stated that he was not able to bend and that his legs bothered him. He could not sit or sleep well. Physical examination showed reduced range of motion in the low back. The diagnosis was herniated lumbosacral nucleus pulposus (by history) and mild degenerative joint disease of the lumbosacral spine. An August 1981 SSA disability transmittal shows that the Veteran's vocational background was construction worker and that he was found not to be disabled for SSA purposes due to a chronic low back strain. During a July 1982 VA examination, the Veteran complained of stiffness of the neck and loss of movement of the neck and low back with pain in the neck and low back. The pertinent diagnostic impressions were status post injury to the back, degenerative arthritis of the lumbosacral spine, sensory neuropathy of the entire left side of the body, right sciatic neuritis and left sciatic irritation. During a June 1986 Social Services orthopedic examination, it was noted that the Veteran was primarily seen for lower back pain. It was also noted that the Veteran had been involved in the auto accident earlier in the 1980s. The diagnosis was osteoarthritis of the lumbosacral spine involving the hip joints and the sacroiliac joints. An August 1986 SSA disability transmittal shows that the Veteran's primary diagnosis was osteoarthritis of the lumbosacral spine and hip joints. It was noted that the Veteran's claim for disability had initially been allowed beginning March 20, 1980 based on a determination that he had a herniated lumbosacral disc with radiculopathy and pain that precluded performance of past work and any other work even at the light or sedentary level. It was again noted that he had had residuals of a back injury he suffered in the automobile accident in the early 1980s. Forward bending of the back was mildly reduced and there was generalized diminution of sensation of the right lower extremity. SSA found that as the Veteran currently only had pain and limitation of motion with a sensory disturbance of the right leg, his medical condition had improved and he was no longer disabled by SSA standards. An April 1990 medical examination done for Social Security Administration (SSA) purposes shows that the Veteran reported that he was in an auto accident in 1980 and had lower back pain and neck pain since that time. The diagnoses were minimal degenerative arthritis of the cervical spine and mild degenerative arthritis of the lumbar spine. In October 2009, the Veteran filed the instant claims for service connection for back injury, leg injury and bilateral wrist injury. VA treatment records from 2009 to 2012 show that the Veteran had suffered a left lateral malleolar fracture for which he underwent a left illiofemoral bypass in December 2009. He was provided with subsequent physical therapy for this left ankle problem. In a February 2010 statement, the Veteran alleged that his claimed disabilities of the wrists, leg and back were the result of a car accident he suffered while on active duty at Fort Meyers, Virginia. On a February 2010 VA NA Form 13055, the Veteran asserted that the car accident in service occurred in approximately August 1954. He noted that he was treated following the accident at the hospital at Fort Meyer. In a March 2010 letter, the Stafford County Sheriff's Office indicated that it did not have a record of an accident involving the Veteran as their records did not go back to 1954. In a separate March 2010 letter, the Stafford Department of Motor Vehicles indicated that it did not have any information concerning an accident record from 1954. In a March 2010 statement, a fellow serviceman of the Veteran indicated that he was a passenger in the car involved in the accident in August 1954. He reported that the Veteran was driving the car at the time and that the accident occurred on [redacted] in [redacted], Virginia. As a result of the accident, the fellow service-member was injured and unconscious and was transported to Mary Washington Hospital in Fredericksburg, Virginia. The fellow service member noted that this hospital no longer existed as a new hospital had built to replace it and that records from 1954 had been destroyed. During the January 2012 Board hearing, the Veteran testified that he was involved in an auto accident in the summer of 1954 where he injured his left leg, bilateral wrist and back. After the accident, he was treated at the emergency room in Fredericksburg. Then, he went back to the post. At the emergency room, he was bandaged for his bruises and stabilized. A boot was put on his leg, which he had to wear about 6 weeks. The Veteran indicated that an X-ray had shown a fracture. He indicated that he had also fractured his wrists and that splints had been placed on them, which he also had to wear for 6 weeks. He received treatment every other day for the wrists and the leg. He was given stretching exercises to do and received physical therapy in the form of heat and electrical stimulation. The Veteran also reported that his back was simply found to be strained or bruised. The treatment he received for this was just heat and hot pads. After six weeks, he was put on light duty because he was getting close to his separation date. He remained on light duty until his separation date. During this period, he worked in the commissary. The Veteran indicated that he currently felt pain in the wrists, back and leg during cold weather. During an April 2012 VA examination, the Veteran was diagnosed with degenerative joint disease of the lumbar spine, degenerative arthritis of the bilateral wrists and degenerative arthritis of the left ankle. The lumbar spine disability was characterized by low back pain with some reduced motion resulting in limitations in standing, sitting, walking and lifting. The wrist disability was characterized by less movement than normal and pain on movement resulting in limitation in those activities that would require repetitive flexion/extension such as painting, typing or writing and limitation in safely lifting more than 10 pounds. The left ankle disability was characterized by less movement than normal and pain on movement resulting in limitation in occupational functions that required prolonged walking, standing or squatting. X-rays of the ankle showed degenerative or traumatic arthritis with no other significant findings. The examiner noted that the Veteran reported that he suffered injury to his low back, bilateral wrists and left ankle during the initial 1954 auto accident. The examiner indicated that though the Veteran was injured in August 1954, he was able to continue to serve on active duty until April 1956 albeit on light duty. Following discharge, he continued to work at physically demanding jobs, including farming and construction. A review of the outpatient medical records did not show any documented wrist complaints by the Veteran. The left ankle problem had first been documented in 2009 after a fracture of the distal tibia and fibula. An X-ray of the low back in 1981 following the 1980 motor vehicle accident showed mild osteophyte formation with a diagnosis of minimal degenerative change. Taking this information into consideration, the examiner found that the Veteran's bilateral wrist disability, low back disability and left ankle disability were less likely than not related to the August 1954 automobile accident as reported by the Veteran. The examiner reasoned that the Veteran had remained on active duty for an additional one year and eight months following the car accident. Following discharge there was no medical evidence in the claims file indicating complaints, treatment or limitations caused by injuries to the low back, wrists or left ankle. The Veteran reported working on a farm and in construction following military discharge, which were both physically demanding jobs. There was no documentation of low back problems until 1980 following a motor vehicle accident, which well established a low back injury. This was 24 years after military discharge in 1956. Also, there was no mention of a prior back injury or prior motor vehicle accident in the multiple notes associated with the 1980 motor vehicle accident. Moreover, in 1981 an X-ray documented minimal degenerative changes of the lumbar spine. For a significant back injury to have occurred in 1954, one would have expected more significant X-ray changes in 1981. The Veteran has reported that he suffered an auto accident in service, which involved injury to his back, wrists and ankle. He is competent to make such a report. The evidence does not show any residual disability resulting from the reported accident, however. In this regard, the earliest medical evidence of record of any back wrist or ankle/leg problems is from 1980, approximately 26 years after service, and the earliest evidence of any wrist or ankle problems is from much, much later. A lengthy interval of time between service and initial post service manifestation of a "disability" for which service connection is sought is, of itself, a factor against a finding that the disability was incurred or aggravated in service. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Also, the April 2012 VA examiner, after reviewing the claims file and examining the Veteran, specifically found that it was less likely than not that the Veteran's current low back, bilateral wrist and left ankle disabilities are related to service. The examiner supported this opinion with a specific, reasoned rationale. In particular, the examiner noted that the Veteran had remained on active duty for an additional one year and eight months following the car accident in service; that following the time of discharge, there was no medical evidence in the claims file indicating complaints, treatment or limitations caused by in-service injuries to the low back, wrists or left ankle; that there was no documentation of low back problems until 1980 following a motor vehicle accident, with subsequent medical reports well establishing a low back injury from this latter accident and not showing any history of prior injury; that the Veteran reported working on a farm and in construction following military discharge, which were both physically demanding jobs; and that for a significant back injury to have occurred in 1954, one would have expected more significant X-ray findings 27 years later than the "minimal degenerative changes" found in 1981. There is no evidence to the contrary (i.e. medical evidence tending to indicate that the Veteran's current back, wrist and ankle disabilities are related to his military service). Additionally, inasmuch as the Veteran is alleging continuity of back, wrist and ankle/leg symptomatology since service, the Board does not find this allegation credible. Notably, private medical records subsequent to the Veteran's 1980 auto accident do not show any history of any prior injuries to the back, wrists, legs or ankle, nor do they show any history of an earlier auto accident. To the contrary, the Veteran, during the July 1980 private medical examination, specifically reported that he had been in good health prior to his 1980 auto accident, specifically denied prior similar injuries, and specifically noted that he had suffered an injury to the right knee a year before the accident and still had some aching in the knee. Additionally, on his April 1981 claim form, the Veteran only identified a current back problem and did not report any problems with his wrists or low back. Moreover, when asked whether he had had any prior medical treatment for the low back, including treatment in service, the Veteran replied, "NA" (meaning "not applicable"). The Board presumes that if the Veteran had continued to have back, wrist and leg/ankle problems since the alleged accident in service, he would have informed medical personnel of this in 1980, rather than indicating that he was generally in good health before the 1980 accident except for the right knee problem. The Board also presumes that the Veteran would have reported these ongoing medical problems dating since service on his April 1981 VA claim form. Given that these reports of medical history from 1980 and 1981 are much more contemporaneous to the alleged 1954 injury than his October 2009 claims for service connection, and given that they were made against his interest in receiving service connected compensation for back, wrist and left leg/ankle disability, the Board credits them over a much more recent assertion of continuity of wrist, back and leg/ankle symptomatology since service. Thus, it was wholly appropriate for the April 2012 VA examiner to consider this earlier history when formulating his etiological opinions. The Board also notes that although the Veteran initially claimed service connection for a left leg disability, during the April 2012 VA examination, he clarified that he injured his left ankle rather than his leg in the accident during service. Given this explicit clarification by the Veteran, it was appropriate for the VA examiner to provide an opinion as to whether the Veteran's current left ankle disability is related to service and not provide an opinion as to whether any left leg disability is related to service. Additionally, there is no medical evidence tending to indicate any relationship between any left leg disability and service. The Veteran has been shown to have lower extremity neurological impairment beginning as early as 1979. The neurological impairment has been shown to be secondary to low back disability (which as explained above is not shown to be related to service), however. There is also no credible lay evidence suggesting a relationship between any current left leg disability and military service. In this regard, as alluded to above, an assertion that the Veteran has had continuity of leg symptomatology since service is not deemed credible. Further, there are no lay assertions of record of such continuity from any other source. Although the Veteran contends that his current low back, bilateral wrist and left ankle/leg disability is related to service, as a layperson, his opinion concerning the likely etiology of these orthopedic disabilities is entitled to less probative weight than the well-reasoned findings of the April 2012 VA examiner. See e.g. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Consequently, given that chronic low back, wrist or left ankle/leg disability was not established until many, many years after service and given that the weight of the evidence is clearly against a finding that any of these disabilities are related to service, the Board must conclude that the preponderance of the evidence is against a finding of service connection on either a direct or presumptive basis. Thus, all of the claims must be denied. ORDER Service connection for a left ankle/leg disability is denied. Service connection for a bilateral wrist condition is denied. Service connection for a low back condition is denied. ____________________________________________ KELLI KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs