Citation Nr: 1307563 Decision Date: 03/05/13 Archive Date: 03/11/13 DOCKET NO. 09-16 558 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a gastrointestinal disorder. ATTORNEY FOR THE BOARD A. D. Jackson, Counsel INTRODUCTION The Veteran served on active duty from May 1943 to May 1945. He was awarded the Air Medal with two gold stars and the Distinguished Flying Cross, among other decorations, for his valor and heroism during World War II. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Board remanded the appeal to the RO via the Appeals Management Center (AMC), in Washington, DC for further evidentiary development in March 2011, August 2011, and again in August 2012. This case has been returned to the Board for review. As explained below, there was substantial compliance with these remand directives in having the Veteran undergo the VA compensation examination for this necessary medical comment. As well the RO/AMC attempted to contact a fellow service member that reportedly served with the Veteran in August 2012 to no avail. See Stegall v. West, 11 Vet. App. 268 (1998). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2). FINDINGS OF FACT 1. The most probative (competent and credible) medical and other evidence of record indicates the Veteran's current right knee disability is less likely than not related to his military service, including an airplane crash. 2. The most probative (competent and credible) medical and other evidence of record indicates the Veteran's current gastrointestinal problems are less likely than not related to his military service, including exposure to aviation fuels and similar products. CONCLUSIONS OF LAW 1. A right knee disability was not incurred in or aggravated by his military service and osteoarthritis may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. The diagnosed gastrointestinal disorders also were not incurred in or aggravated by his military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Duties to Notify and Assist Before addressing the underlying merits of a claim, the Board generally is required to ensure that VA's duties to notify and assist the claimant with the claim have been satisfied under the Veterans Claims Assistance Act (VCAA). 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 must inform the claimant of any information and medical or lay evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist the claimant in obtaining; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). These notice requirements apply to all elements of a service-connection claim, including the "downstream" disability rating and effective date elements. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). In October 2007, the Veteran received letters satisfying these notice requirements of 38 C.F.R. § 3.159(b)(1). The October 2007 letter informed him of the evidence required to substantiate this claims and of his and VA's respective responsibilities in obtaining this supporting evidence. The October 2007 letter also complied with Dingess by as well discussing the "downstream" disability rating and effective date elements of his claims. So he has received all required notice concerning his claims. And as for the duty to assist, the RO obtained his service treatment records (STRs), as well as private and VA evaluation and treatment records. During the course of his appeal, the RO has requested that he identify any outstanding records, VA or private, and there is no suggestion there are additional records that need to be obtained, which are obtainable. He also was provided VA compensation examinations for medical opinions concerning whether he has the claimed disabilities and, to determine whether they are related to his military service. The findings were reported in a manner and format enabling the Board to address the elements needed to show entitlement to service connection. It is difficult to discern what additional guidance VA could provide the Veteran regarding what further evidence he should submit to substantiate his claims. Thus, the Board finds that the duty to assist him with his claim has been met. 38 U.S.C.A. § 5103A. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in exhaustive detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. II. Whether Service Connection is Warranted for Right Knee Disability, and Gastrointestinal Disorders In general, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). To establish entitlement to direct service connection for the claimed disability, there must be: (1) medical evidence of 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 or link between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). Alternatively, under 38 C.F.R. § 3.303(b), service connection may be awarded for a "chronic" condition when (1) a chronic disease manifests itself and is identified as such in service, or within the presumptive period under 38 C.F.R. § 3.307, and the veteran presently has the same condition; or (2) a listed chronic disease (under 38 C.F.R. § 3.309(a) manifests itself during service, or during the presumptive period, but is not identified until later, and there is a showing of continuity of related symptomatology after discharge, and medical evidence relates that symptomatology to the Veteran's present condition. Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013) (holding that the theory of continuity of symptomatology analysis is applicable in cases involving conditions explicitly recognized as chronic diseases under 38 C.F.R. § 3.309(a)). Certain chronic diseases (such as arthritis) will be presumed to have been incurred in service if manifested to a compensable degree of at least 10-percent disabling within one year after service. This presumption, however, is rebuttable by probative evidence to the contrary 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Other diseases initially diagnosed after service also may be service connected if the evidence, including that pertinent to service, shows the diseases were incurred in service. 38 C.F.R. § 3.303(d). The Veteran has the required current diagnoses to account for his complaints of gastrointestinal problems and right knee pain. More specifically, he had a VA compensation examination in April 2011, and an X-ray revealed bilateral total knee prosthesis. Furthermore VA outpatient records contain current diagnoses of gastroesophageal reflux disease and irritable bowel syndrome. Thus, since the Veteran has established he has current disabilities affecting this knee and gastrointestinal system, resolution of this appeal instead turns on whether these current disabilities are attributable to his military service - and, in particular, to injuries in service that he cites as the source of this current disabilities. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of 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 a disease incurred in service."). Unfortunately, though, it is in this critical respect that his claims are deficient as there simply is no competent and credible evidence of record establishing this required cause-and-effect correlation. Regarding what occurred in service, the Veteran's STRs do not show any complaints, findings, or diagnosis regarding a knee injury. The report of the February 1943 examination that was conducted prior to service indicates that his musculoskeletal system was considered normal. The report of the November 1945 discharge examination indicates that his extremities (bones and joints) were considered normal. When given a chance to report a history of prior illness or injury, the Veteran did not report an injury of to the right knee. The Veteran, in support of his claim, submitted an undated military record detailing a plane crash where 10 men "got out" and 3 men were killed. The record indicates one man had a cut knee and another man had a cracked knee cap. Other than indicating the crash occurred in "February," the record is undated and does not identify the specific crew that was injured. As indicated above, the Veteran's STRs do not indicate a right knee injury. In regard to his gastrointestinal disorder, the February 1943 entry examination report noted moderate inguinal rings but no sign of a hernia. There was also residual scarring from a 1942 appendectomy. On the November 1945 service discharge examination report, moderate inguinal rings were again noted. In addition, the Veteran alleges that he was exposed to cleaning solvents, and fumes from airplane fuel and oil, which led to his abdominal problems. The Veteran's DD-214 confirms the Veteran is in receipt of, among other things, a Distinguished Flying Cross, indicative of combat service. That the Veteran was involved in combat operations is well established in the record. Indeed, in the Board's March 2011 remand, the evidence pertaining to combat was reviewed and his exposure to combat during service was conceded, noting that although there is no specific objective evidence of the Veteran's variously claimed in-service injuries, the injuries are consistent with his MOS as an aviation machinist's mate and the circumstances of his combat service. Therefore, the Veteran meets the first (current disability) and second (in-service injury) requirements of the Shedden analysis. The question then becomes whether his current right knee disability and gastrointestinal disorders are attributable to the claimed injury (or exposure to chemicals) he experienced in service or, instead, the result of other unrelated factors. Establishing an injury in service, including in combat, does not obviate the need to still have medical nexus evidence linking any current disability to that injury in service. Collette v. Brown, 82 F.3d 389, 392-93 (Fed. Cir. 1996); Arms v. West, 12 Vet. App. 188, 194-95 (1999). And, unfortunately, in this particular instance the most probative-meaning competent and credible-evidence is against these claims for gastrointestinal disorders and a right knee disability. Regarding the right knee disability, a VA examination was conducted in April 2011. The VA examiner found that it was less likely than not that the right knee total replacement was related to military service. This examiner found that the most likely explanation was that he had age-related osteoarthritis. He noted that there was no evidence of chronicity given by the Veteran or a history of a fractured knee cap. He acknowledged that the opinion was influenced by an inability to secure an accurate history from the Veteran due to his dementia and communication problems. In regard to his gastrointestinal disorder, he found that these problems did not stem from his appendectomy, inguinal rings, or any complications of surgery. Again, he noted that there was no evidence of chronicity given by the Veteran, acknowledging the problems with his mental condition. However, the examiner did not comment upon the Veteran's claim that his gastrointestinal disorder was caused by exposure to cleaning solvents, and fumes from airplane fuel and oil. The Board therefore remanded the matter for an expert opinion as to the likelihood that the Veteran's gastroesophageal reflux disease and/or irritable bowel syndrome was caused by exposure to cleaning solvents, and fumes from airplane fuel and oil. In light of the Veteran's dementia, the Board specified that no clinical examination of the Veteran was required, unless the physician rendering the opinion deemed that a clinical examination would be helpful to reaching an informed opinion. Despite the Board's directives, the Veteran was examined in February 2012. The resulting report reflected that the Veteran told the examiner he did not have gastroesophageal reflux symptoms or related disease. This was supported by his wife. The examiner did not render a diagnosis and did not address the question asked by the Board. Given that the Veteran's medical records included two separate gastrointestinal diagnoses, and indicated that he had been prescribed medication on an as-needed basis, the Board noted that it appeared that the examiner may not have been fully informed as to the Veteran's situation. Therefore, the Board requested another opinion. In October 2012, this VA examiner that conducted the prior examination in February 2012, again reviewed the Veteran's record. She determined that it was less likely than not that his gastrointestinal disorders are related to his exposure to chemicals during service. She reviewed several resources including the EPA website, literature from World Health Organization and information from the Department of the Army. She noted that the major component of aviation fuel is kerosene. During the early forties when the Veteran was in service, there were significant changes to the blending of aviation gasoline (AGN), which included aromatics (toluene, ethyl benzene, and cumene). The studies indicated that acute kerosene exposure results in central nervous system (CNS) manifestations. She noted that the most common problem to chronic kerosene exposure is dermatitis. Further, the problems that have been associated with exposure to aromatics include CNS depression, upper respiratory irritation, and skin irritation. Significantly, there was no evidence to suggest that the gastrointestinal disorders of irritable bowel syndrome and gastroesophageal reflux disease are associated with these agents. She also noted that exposure to inhaled engine lubricants causes symptoms similar to carbon monoxide poisoning all of which results in asphyxia and hypoxia with resulting alteration in sensorium, muscular incoordination, depressed heart rate, depressed respiration rate, and death. She added that a Department of the Army circular indicated that Tetraethyl lead (TEL) used in AGN is highly toxic but primarily affects the CNS. She also noted that the author indicated that the amount of TEL used in AGN was so small that the likelihood of a hazard was remote. There have been several studies on long term exposure to TEL's both occupationally and recreationally, but there are no reports that this exposure leads to IBS or GERD. Besides the unfavorable opinion the Board also notes that in reviewing his post-service history, there are no medical records reflecting complaints, diagnosis, or findings, related to gastrointestinal problems or a right knee disability until 2007, when the Veteran filed his claims for benefits, so not until some 52 years (i.e., over five decades) after the Veteran's military service ended. The Board notes that it cannot conclude lay evidence lacks credibility simply because it is unaccompanied by any contemporaneous medical evidence, such as treatment records. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). But that said, the Federal Circuit Court has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The Board therefore may consider the absence of any indication of a relevant medical complaint until so relatively long after service as one factor, though not the only or sole factor, in determining whether a disease or an injury in service resulted in chronic or persistent residual disability. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Cf. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (cautioning that negative evidence, actual evidence that weighs against a party, must not be equated with the absence of substantive evidence). Ultimately, the Board must consider all the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service, and any other pertinent facts. Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000). Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role. See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness). Here, the Board considers it significant although unfortunate that the Veteran did not report any knee problems for such an extended period after service. Moreover, while it appears that any prior records of treatment are unavailable (either due to the Veteran's mental condition or destroyed records), it must be pointed out that he underwent bilateral knee total replacements, but he failed to apply for VA benefits at that time or any time prior to his surgery(ies). It would be feasible to think that at the time of his bilateral knee replacement, he would have applied for VA benefits. This further diminishes the probative value of any statements in this regard to continuity. So even accepting that he is competent to say he has experienced progressively worsening right knee problems since his military service, the fact that there are no records of a mention or complaint about these conditions on any earlier occasion tends to refute the notion that he has experienced continuous problems since the service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) and Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (both recognizing that medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology). There also is no medical opinion in the file refuting the VA examiners' unfavorable opinions, and the Veteran's unsubstantiated lay statements are insufficient to rebut this opinions given their lessened probative value since, even if competent, they are not also credible. Consequently, for these reasons and bases, the evidence is not in relative equipoise, meaning not about evenly balanced for and against the claims. Instead, the preponderance of the evidence is unfavorable, so the claims must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Dela Cruz v. Principi, 15 Vet. App. 143, 148-49 (2001). ORDER Service connection for a right knee disability is denied. Service connection for a gastrointestinal disorder is denied. ____________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs