Citation Nr: 1307330 Decision Date: 03/04/13 Archive Date: 03/11/13 DOCKET NO. 10-47 193A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a neck disorder. 2. Entitlement to service connection for a back disorder. 3. Entitlement to service connection for a left knee disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran had active service from September 1950 to July 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied the claims currently on appeal. In May 2012, the Board found that new and material evidence had been submitted and reopened a claim of entitlement to service connection for a neck disorder. This issue, along with the remaining issues on appeal, was subsequently remanded by the Board for further evidentiary development. In March 2012, the Veteran testified at a hearing before the undersigned at the RO in Muskogee, Oklahoma. A written transcript of this hearing has been prepared and incorporated into the evidence of record. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, the evidence shows that a recurrent lipoma of the neck had its onset during service. 2. The probative evidence of record shows that the Veteran's current lumbar spine disability did not manifest during, or as a result of, active military service. 3. The probative evidence of record shows that the Veteran's left knee disability did not manifest during, or as a result of, active military service. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for a recurrent lipoma of the neck have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 2. The criteria for establishing entitlement to service connection for a low back disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 3. The criteria for establishing entitlement to service connection for a left knee disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). 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 in accordance with 38 C.F.R. § 3.159(b)(1). 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). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Previously, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the failure to provide pre-adjudicative notice of any of the necessary duty to notify elements was presumed to create prejudicial error. Sanders v. Nicholson, 487 F.3d 881 (2007). VA was required to show that that the error did not affect the essential fairness of the adjudication, and that to make such a showing the VA had to demonstrate that the defect was cured by actual knowledge on the claimant's part or that a benefit could not have been awarded as a matter of law. Id. However, the United States Supreme Court (Supreme Court) recently held this framework to be inconsistent with the statutory requirement that the CAVC take "due account of the rule of prejudicial error" under 38 U.S.C.A. § 7261(b)(2). Shinseki v. Sanders, 556 U.S. 396 (2009). In reversing the Federal Circuit's decision, the Supreme Court held that the burden is on the claimant to show that prejudice resulted from the error, rather than on VA to rebut a presumed prejudice. Id. Letters sent to the Veteran in October 2009 and December 2009 addressed all notice elements listed under 3.159(b)(1) and were sent prior to the initial RO decision in this matter. The letters informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content. Adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board that complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). At the outset of this discussion, the Board notes that the Veteran's service medical and personnel records appear to have been destroyed in a fire at the National Personnel Records Center (NPRC) in 1973, and have not been located. Under such circumstances, the United States Court of Appeals for Veterans Claims (Court) has held that there is a heightened obligation on the part of VA to explain findings and conclusions and to consider carefully the benefit of the doubt rule. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Because the Veteran's medical and personnel records remain absent from the file, the Board's analysis has been undertaken with the heightened obligation set forth in Cuevas and O'Hare in mind. It is further noted, however, that the case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). The Veteran received a VA medical examination in June 2012 and November 2012 (which the Board finds adequate), and VA has obtained these records as well as the records of the Veteran's outpatient treatment with VA. Copies of private treatment records have also been obtained and incorporated into the claims file. Significantly, neither the Veteran nor his representative has identified any additional existing evidence that is necessary for fair adjudication of the claim that has not yet been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Additionally, the Board finds there has been substantial compliance with its May 2012 remand directives. The Board notes that the Court has held that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand). The record indicates that the Appeals Management Center (AMC) obtained additional medical records and scheduled the Veteran for a medical examination. The AMC later issued a Supplemental Statement of the Case (SSOC). Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remand. See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders). Relevant Laws and Regulations Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). To establish service connection, there must be: (1) evidence of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996)). Where a veteran has served for 90 days or more during a period of war, or during peacetime service after January 1, 1947, and a chronic disorder, such as arthritis, becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309 (2012). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). Neck Disorder The Veteran contends that he is entitled to service connection for a recurrent growth of his neck. Specifically, the Veteran has described having a knot removed from his neck during active military service. An August 1997 VA treatment record shows that the Veteran complained of an enlarging growth on his neck that had been present for the past 8 months. He reported that he had a "boil" in the same spot during service. The examiner diagnosed cystic growth of the right posterior neck. According to a January 1998 private treatment record, the Veteran had a growth on his neck for the past year that had increased in size recently. This was excised and diagnosed as a lipoma of the nape of the neck. The Veteran was afforded a VA examination of the neck in June 2012. The Veteran reported that he had a place "lanced" on his neck during military service. He also reported a non-cancerous tumor having been removed in 1989. The Veteran reported that all of his neck gets stiff and hurts and that it has for many years. X-rays revealed moderate degenerative changes involving the cervical spine, disk disease at the level of C3-4 and C4-5, arteriosclerosis and levoscoliosis. The examiner opined that it was less likely as not that this was caused by or a result of intraservice events. The examiner noted that there was no service treatment evidence of the claimed condition. The examiner was unable to link the Veteran's reported tissue condition during service to the right neck soft tissue lesion of 1998 without resorting to mere speculation. The examiner explained that there was a lot of time between these two events and there was no way to identify if this was the same location and/or a reoccurrence of the original lesion. The Veteran was most recently afforded a VA examination in November 2012. The examiner noted that the Veteran was suffering from disk disease at the level of C3-4 and C4-5. The Veteran reported that he had a place "lanced" on the right side of his neck while he was in Korea. Subsequently, in 1988 to 1989, he had a non-cancerous tumor removed from this area. He also reported that his neck gets stiff and it has hurt for many years. This pain was not isolated to the area in which he reported having a spot "lanced" during service. Examination, including X-rays, confirmed that the Veteran had moderate degenerative changes involving the cervical spine. The examiner opined that it was less likely than not that this condition was incurred in or caused by military service. The examiner explained that there was degenerative joint disease and degenerative disk disease of the entire spine. As such, it was most likely the natural progression of age and genetic makeup. The Veteran has testified to having a growth of some sort removed from his neck during military service. There is nothing in the record to call into question the credibility of the Veteran's assertion. The Veteran was discharged from active duty in 1952. The record reflects that the Veteran had a lipoma excised from the nape of his neck in 1998 with a reported history of a growth treated in service. The Board observes that this reported history during the course of medical treatment was made many years before the Veteran filed a claim for compensation benefits. The Veteran has also testified to having a growth removed around 1989. The opinion from the June 2012 examiner suggests that because there is no service treatment evidence of the claimed condition, there is no way to identify that the growth was in the same location and/or is a reoccurrence of the original lesion. The Veteran's service treatment records are not available for review through no fault of the Veteran. The Board finds that given the absence of service treatment records and credible statements from the Veteran, reasonable doubt should be resolved in the Veteran's favor and service connection granted for recurrent lipoma of the neck. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Low Back Disability The Veteran also contends that he is entitled to service connection for a low back disability. However, as outlined below, the preponderance of the evidence of record demonstrates that the Veteran's current back disability did not manifest during, or as a result of, active military service. As such, service connection is not warranted. While the Veteran's service treatment records are unavailable for review, post-service evidence demonstrates that the Veteran's current low back disability did not manifest during, or as a result of, active military service. An X-ray of the lumbar spine was taken in August 2007. This revealed dextroscoliosis, severe degenerative disc disease, and prominent hypertrophic changes. An April 2010 private treatment record confirms that the Veteran was suffering from severe degenerative disc disease of the lumbar spine. According to a November 2009 VA outpatient treatment record, the Veteran had been suffering from chronic back pain for the past 20 years. A December 2009 note indicates that the Veteran's low back pain was continuing to worsen. The Veteran was afforded a VA examination of the thoracolumbar spine in June 2012. It was noted that the Veteran had been diagnosed with degenerative disk disease and degenerative joint disease of the lumbosacral spine by X-ray done in 2007. The Veteran reported injuring his back while lifting ammo boxes during active military service. He endorsed back pain since that time. Examination and X-rays revealed straightening of the normal curvature with moderate degenerative changes involving the skeletal structures, multilevel disk disease and atherosclerosis. The examiner opined that it was less likely as not that the Veteran's lumbar spine disability manifested as a result of intraservice events. The examiner explained that the entire spine had degenerative joint disease and degenerative disk disease, so it was most likely the natural progression of age and genetic makeup. There was also no chronic management until later years. The Veteran did various general labor jobs throughout his working career and he had torso trauma post-service. The Veteran was most recently afforded a VA examination in November 2012. The examiner noted that the Veteran was suffering from multilevel disk disease of the thoracolumbar spine. The Veteran reported that this had existed "for many years." The Veteran stated that he strained his back in Korea while lifting ammo boxes into a turret. He indicated that he had experienced back pain since that time. This examiner also opined that it was less likely than not that the Veteran's current thoracolumbar spine disability was incurred in or caused by military service. The examiner explained that there was degenerative joint disease and degenerative disk disease of the entire spine. As such, it was most likely the natural progression of age and genetic makeup. The preponderance of the above evidence demonstrates that the Veteran is not entitled to service connection for a low back disability. The first evidence of record of a low back disability is the Veteran's August 2006 claim seeking service connection. This is more than 50 years after the Veteran's separation from active duty. When considering whether or not to grant a claim for service connection, the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The absence of any evidence of treatment for a back disability tends to suggest that the Veteran had not been suffering from chronic symptomatology for the past 54 years. In addition, the June 2012 VA examiner opined that it was less likely than not that the Veteran's current lumbar spine disability manifested as a result of military service. The examiner explained that there was degeneration of the entire spinal column, suggesting that this condition was due to genetic makeup and the natural aging process. The record contains no other competent or credible evidence linking the Veteran's current lumbar spine disability to military service. As such, service connection is not warranted. The Board recognizes that the Veteran believes his thoracolumbar spine disability is related to his military service. In March 2012, the Veteran testified to injuring his back during active duty while moving ammunition boxes and machine guns. He reported that he fell at this time and injured his back. The Veteran testified that he was diagnosed with a disability of the spine 5 years earlier and that he now suffered from pain on a daily basis. When asked if his back had hurt consistently since the time he got out of service, the Veteran responded that it was worse now than it was 10 years earlier. The Veteran also endorsed chronic back pain since military service during his June 2012 VA examination. The record contains no evidence to suggest that the Veteran did not experience back pain at some point during his military service in the early 1950s. However, the evidence of record does suggest that the Veteran's report of chronic back pain since this time is not reliable, and therefore cannot be deemed credible. In his VA Form 21-526 received in August 2006, the Veteran inserted a question mark in the field asking him when his disability began. The Veteran also reported during VA medical treatment in 2009 that his back pain did not begin until 20 years earlier. This would be approximately 1989, or some 37 years after the Veteran's separation from service. Such vastly differing accounts regarding the onset of the Veteran's back pain greatly calls into question his recent assertion of chronic symptomatology since military service. Since the Board does not find these assertions to be reliable and credible, they fail to demonstrate that service connection is warranted. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to service connection for a low back disability must be denied. Left Knee Disability Finally, the Veteran has argued that he is entitled to service connection for a left knee disorder since he injured his left knee during service. However, as outlined below, the preponderance of the evidence of record demonstrates that the Veteran's current left knee disability did not manifest during, or as a result of, active military service. As such, service connection is not warranted. Although the Veteran's service treatment records cannot be reviewed, post-service evidence demonstrates that the Veteran's left knee disability did not manifest during, or as a result of, active military service. An X-ray of the left knee was taken in August 2007. This revealed small osteophyte extending posteriorly from the patella (patellar spur) with a small joint effusion. According to a November 2009 VA outpatient treatment record, the Veteran reported that he had been suffering from left knee pain since the 1950s when he "busted" his knee while in Korea. The Veteran was afforded a VA examination of the left knee in June 2012. It was noted that the Veteran was diagnosed with a patella spur by X-ray in 2007. The Veteran reported that he banged his knee on a half track while climbing in and out during military service. He indicated that his knee was swollen and sore during service and he was seen by medics. X-rays were taken and revealed degenerative changes involving the left knee. The examiner opined that it was less likely as not that this condition manifested as a result of in-service events. The examiner explained that a patella spur was identified in 2007 and that the Veteran had not had surgery or extensive management for this condition. It was the examiner's opinion that the degenerative joint disease was most likely a natural progression of life events and the natural aging process. The Veteran was most recently afforded a VA examination for his left knee in November 2012. It was noted that the Veteran suffered from degenerative joint disease of the left knee. The Veteran indicated that following military service, he worked in jobs including farming, construction and general labor, and he retired at the age of 63. This examiner also opined that it was less likely than not that the Veteran's left knee disability manifested during, or as a result of, active military service. The examiner explained that a patella spur was identified by X-ray in 2007. The Veteran had not had surgery or extensive management for this condition. The examiner was of the opinion that the Veteran's degenerative joint disease was most likely a natural progression of life events and the natural aging process. During his March 2012 hearing, the Veteran explained that he fell and injured his knee while on a half track moving ammunition. The Veteran reported that his knee was X-rayed and he was told he had water on the knee. He also stated that he was told he had water on the knee some 5 years earlier. However, he denied chronic pain and indicated that his left knee only hurt "sometimes." The preponderance of the above evidence demonstrates that the Veteran is not entitled to service connection for a left knee disability. The first evidence of record of left knee symptomatology is the Veteran's August 2006 claim. This is approximately 54 years after the Veteran's separation from active duty. As already noted, when considering whether or not to grant a claim for service connection, the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue. See Maxson, 12 Vet. App. at 459. The absence of any medical evidence relating to the left knee for more than 50 years tends to suggest that the Veteran has not suffered from chronic symptomatology since separation from active duty. Furthermore, the VA examiner of record concluded that this disability was most likely a natural progression of life events and the natural aging process. The examiner explained that the Veteran's left knee condition was not identified until 2007 and that it had not required extensive management in the past. Finally, the Veteran himself indicated in March 2012 that his knee only hurt on an intermittent basis, suggesting that his symptomatology has not been chronic. The statements of record regarding the duration and frequency of knee pain are inconsistent and therefore unreliable and cannot be deemed credible evidence of a continuity of symptomatology. As such, service connection for a left knee disability is not warranted. Again, the Board recognizes that the Veteran believes his current left knee disability is related to an in-service injury. However, there is no evidence of record to suggest that the Veteran has the requisite training or expertise to relate his current disability to an injury some 50 years earlier. Rather, the competent and credible medical evidence shows that the current left knee disability is not likely related to the Veteran's in-service injury. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to service connection for a left knee disability must be denied. ORDER Service connection for recurrent lipoma of the neck is granted. Service connection for a low back disability is denied. Service connection for a left knee disability is denied. ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs