Citation Nr: 1309846 Decision Date: 03/22/13 Archive Date: 04/01/13 DOCKET NO. 12-03 614 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for a left knee disorder, claimed as osteoarthritis of the left lower extremity. 3. Entitlement to service connection for a right knee disorder, claimed as osteoarthritis of the right lower extremity. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his daughter ATTORNEY FOR THE BOARD Shana Z. Siesser, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1953 to May 1955. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In July 2012, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. This case was previously before the Board in August 2012 and was remanded for additional development. The RO has complied with the remand directives. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present 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. A low back disorder did not manifest during service or for many years thereafter and has not been shown to be related to the Veteran's military service. 2. A bilateral knee disorder, including osteoarthritis, did not manifest during service or for many years thereafter and has not been shown to be related to the Veteran's military service. CONCLUSIONS OF LAW 1. A low back disorder was not incurred in service and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002 & Supp. 2012): 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). 2. A bilateral knee disorder was not incurred in and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002 & Supp. 2012): 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants 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). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant 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 notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) VA must ask the claimant to provide any evidence in her or his possession that pertains to the claim 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 agency of original jurisdiction (AOJ), as was done in this case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, the RO did provide the appellant with notice in August 2010 prior to the initial decision on the claims in February 2011. Therefore, the timing requirement of the notice as set forth in Pelegrini has been met and to decide the appeal would not be prejudicial to the claimant. Moreover, the requirements with respect to the content of the notice were met in this case. In this regard, the August 2010 letter informed the Veteran of what evidence was necessary in substantiating his claims and of the division of responsibilities on obtaining such evidence. The Board does acknowledge that the Veteran does not appear to have been provided with notice of the type of evidence necessary to establish a disability rating and an effective date. Despite the inadequate notice provided to the veteran pertaining to disability ratings and effective dates, the Board finds no prejudice to the Veteran in proceeding with the issuance of a final decision. In this regard, the Board concludes below that the Veteran is not entitled to service connection for a low back disorder or a knee disorder. Thus, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot. In addition, the duty to assist the appellant has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available post-service medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with his claims. The Veteran was also afforded a VA examination in April 2012 at which time a medical opinion regarding the issues on appeal was rendered. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is relevant to the claims being decided herein. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Law and Analysis Veterans are entitled to compensation from VA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service). 38 C.F.R. § 3.303(a) (2012). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d) (2012); Cosman v. Principi, 3 Vet. App. 303, 305 (1992). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Certain chronic disabilities, to include arthritis, are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). With 'chronic disease' shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of a '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. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. The term 'chronic disease,' whether as manifest during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 U.S.C.A. § 1101 and 38 C.F.R. § 3.309(a). Walker v. Shinseki, No. 2011-7184, slip op. at 13 (U.S. Fed. Cir. Feb. 21, 2013). Generally, a Veteran is presumed in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence that the disability existed prior to service and was not aggravated by service will rebut the presumption of soundness. 38 U.S.C.A. § 1111 (West 2002); VAOPGCPREC 3-2003. A pre-existing disease will be considered to have been aggravated by active service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2011). 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 v. Derwinski, 1 Vet. App. 49 (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 claimant. The Board notes that the provisions of 38 U.S.C.A. § 1154(b) do not apply in this case, as it has not been claimed that the Veteran's disabilities were incurred while engaging in combat. On his report of medical history upon entrance into service in March 1953, the Veteran noted that he had a history of cramps in his legs and "arthritis or rheumatism." However, a clinical evaluation of his spine and lower extremities at that time was normal. The Veteran's service treatment records do not show any diagnosis, complaint, or treatment for a low back or lower extremity disorder. In fact, his May 1955 separation examination also shows a normal clinical evaluation of his spine and lower extremities. The Veteran has argued that he had to carry heavy loads over long distances as an infantryman in Korea. His Department of Defense Form 214 (DD 214) indicates that he served in the infantry in the early to mid-1950's. Thus, the Board finds the Veteran's assertion that he had to carry heavy loads over long distances to be consistent with his service as an infantryman. Furthermore, at the July 2012 Board hearing the Veteran's representative contended that exposure to cold weather in Korea may be in some way related to the current disabilities. Board Hearing Tr. at 4. Private and VA treatment records show current diagnoses of low back and lower extremity disorders. In this regard, a May 2007 private treatment report documents diagnoses of severe arthritis of the back and knees, and a July 2007 VA orthopedic surgery consultation report also shows a diagnosis of end stage osteoarthritis of the knees. A September 2007 private treatment record further shows assessments of spinal stenosis and lumbar degenerative disc disease. Therefore, there is evidence of current diagnoses. In his July 2010 claim for benefits, the Veteran noted that he had a lower back disorder since 1955 (the year he separated from service) and knee disorders for over 20 years. In a February 2012 statement, the Veteran's representative indicated that the Veteran had a back injury while on a state road crew prior to service and that this disability was aggravated by service. However, that allegation is in conflict with previous statements from the Veteran. As noted above, in his July 2010 claim, the Veteran reported having a lower back disorder beginning in 1955, which is the year he separated from service. Moreover, during a VA physical therapy consultation in August 2001, the Veteran reported that he hurt his back working for a state road crew when he was 22 years old. The Veteran turned 22 approximately 2 months before his separation from service. Thus, the evidence from the Veteran indicates that he had a low back injury shortly after his discharge from military service, contrary to his representative's assertion in February 2012. In addition, the Veteran's representative attempted to clarify the matter at the July 2012 hearing and stated that the Veteran worked for the state after service. Board Hearing Tr. at 4. Given that there is no clinical notation of a disorder upon entry into service and the evidence is conflicting as to whether any back disorder pre-existed service, the Board does not find clear and unmistakable evidence of a pre-existing disorder. Therefore, the Veteran is presumed sound upon entry into service, and the Board will not address a theory of service connection for aggravation of a pre-existing disability. Pursuant to the Board's remand directives, the Veteran underwent a VA examination in September 2012 at which time the examiner also reviewed the claims file. He diagnosed the Veteran with degenerative disc disease of the lumbosacral spine and an associated right leg radiculopathy. The examiner also diagnosed him with degenerative arthritis of the bilateral knees. The September 2012 VA examiner opined that the Veteran's back disorder was less likely than not incurred in or caused by the claimed in-service injury. In so doing, the examiner noted that the Veteran's service treatment records showed no documented acute or chronic back disorders or treatment during service. Instead, the first notation of back pain in his records was in 2002, which was many years after his discharge from service. Regarding the Veteran's knees, the September 2012 VA examiner opined that his bilateral knee disorder is less likely due to service. In so doing, the examiner stated that the Veteran had no documented acute or chronic treatment for a knee disorder during service. Instead, he was diagnosed with osteoarthritis in 2007, and treatment records do not show a continuity of care from service through his 2007 diagnosis. The September 2012 VA examiner further opined that cold weather exposure in service did not cause the Veteran's back and knee disorders. Instead, he believed that the Veteran's disorders were more likely caused by wear and tear leading to generalized degeneration due to age and his previous occupation as a farmer. The examiner specifically noted that he accepted that the Veteran had to carry heavy loads over long distances and was subjected to cold weather during service. However, he found that these statements did not support the Veteran's theory of causation. The Board finds that the September 2012 VA examiner's opinion is entitled to substantial probative weight because he explained the reasons for his opinion based on an accurate characterization of the evidence of record. See Nieves-Rodriguez, supra. The examiner relied, in part, on the lack of notations of problems regarding the back and knees in service or otherwise indicating any type of injury or activity that would have caused these disorders. Additionally, the examiner noted that the Veteran had no back or knee problems upon discharge from service. As a general matter, the separation examination report was generated with a view towards ascertaining the Veteran's then-state of physical fitness; it is akin to a statement of diagnosis or treatment and is therefore of increased probative value, reflecting the Veteran's then state of physical fitness. Rucker, 10 Vet. App. at 73 (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rational that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). Furthermore, the September 2012 VA examiner stated that treatment for the back was not shown until 2002, which was 47 years after the Veteran's discharge from service, and treatment for his knees was not shown until 2007, which was 52 years after his discharge from service. A prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service resulting in any chronic or persistent disability. See Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Finally, the September 2012 VA examiner noted an alternative cause for the Veteran's back and knee disorder, specifically the Veteran's age and his years of manual labor working as a farmer. The only evidence supporting the claims are the statements of the Veteran, who has indicated that he has experienced back and knee problems since service. The Board notes that the Veteran is competent to report his experience and symptoms in service and thereafter. While lay persons are generally not competent to offer evidence which requires medical knowledge, such as opinions regarding medical causation or a diagnosis, they may provide competent testimony as to visible symptoms and manifestations of a disorder. Jones v. Brown, 7 Vet. App. 134, 137 (1994); Layno v. Brown, 6 Vet. App. 465, 469 (1994); Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006). A veteran can attest to factual matters of which he or had had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Federal Circuit has held that lay evidence is one type of evidence that must be considered, if submitted, when a Veteran seeks disability benefits, and competent lay evidence can be sufficient in and of itself for proving the existence of a chronic disease. See Buchanan, 451 F.3d at 1335; 38 C.F.R. §§ 3.303(a), 3.307(b). The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. Buchanan, 451 F.3d at 1336. Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). In this case, the Board finds that the Veteran is competent to state that he has had back and knee problems since his military service. However, his allegations are inconsistent with the contemporaneous record. As previously discussed, there is no evidence of any complaints, treatment, or diagnosis in service, and his spine and lower extremities were documented as being within normal limits at the time of his separation from service. As such, there is actually affirmative evidence showing that he did not have a back disorder or knee disorder at the time of his separation from service. In addition, the Veteran did not seek treatment or complain of back or knee problems for many decades following his period of service. Thus, the Veteran's claims that he has had such disorders since service are not supported by the contemporaneous evidence of record. The Board finds the contemporaneous evidence to be more probative and credible than the Veteran's current assertions. Contemporaneous evidence has greater probative value than history as reported by the Veteran. See Curry v. Brown, 7 Vet. App. 59, 68 (1994). Moreover, the Veteran has made inconsistent statements regarding the onset of his back and knee disorder. He has claimed that he had back and knee problems since service, yet a private medical record dated in September 2007 noted that the Veteran reported only having trouble with his back and right leg for two years. For these reasons, the Board finds that the Veteran's reported history regarding the onset of his low back disorder and knee disorders to be not credible. As the Veteran has diagnoses of arthritis, section 3.303(b) is applicable. However, arthritis was not diagnosed or identified during service, and the separation examination was normal. Thus, chronicity may be legitimately questioned. Walker, supra. In fact, he did not seek treatment for back or knee pain until more than 40 years after service. Such evidence clearly establishes that arthritis was not manifest during service or within one year of separation. The evidence also establishes that there is no continuity of symptomatology in regard to arthritis. To the extent that the Veteran has opined that his current low back and knee disorders are related to his military service, the Board notes that lay witnesses are competent to opine as to some matters of diagnosis and etiology. The Board must determine on a case by case basis whether a Veteran's particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (2011). In this case, the Veteran's testimony indicating that he has current back and knee disabilities related to an in-service injury is testimony as to an internal medical process, which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Compare Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007) (lay testimony is competent to establish the presence of varicose veins); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). Nevertheless, even assuming that the Veteran is competent to opine on this medical matter, the Board finds that the specific, reasoned opinion of the April 2012 VA examiner is of greater probative weight than the Veteran's more general lay assertions. Therefore, the preponderance of the evidence is against the claim for entitlement to service connection for a low back disorder and bilateral knee disorders. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). ORDER Service connection for a low back disorder is denied. Service connection for a left knee disorder, claimed as osteoarthritis of the left lower extremity, is denied. Service connection for a right knee disorder, claimed as osteoarthritis of the right lower extremity, is denied. ____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs