Citation Nr: 1313446 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 09-05 569 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a right knee disability, to include degenerative joint disease. 2. Entitlement to service connection for a left knee disability, to include degenerative joint disease. 3. Entitlement to service connection for residuals of a broken nose, to include loss of smell. 4. Entitlement to service connection for a respiratory disorder, to include bronchial asthma. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. P. Simpson, Counsel INTRODUCTION The Veteran served on active duty from July 1984 to May 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In September 2012, the Veteran presented testimony before the undersigned Veterans Law Judge. In December 2012, the Board remanded the claim for additional development and adjudicative action. The case has been returned to the Board for further appellate review. The Board has reviewed the Veteran's claims file and the record maintained in the Virtual VA paperless claims processing system. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that a right knee disability is due to service, and there is no competent evidence that degenerative joint disease was manifested to a compensable degree within one year following service discharge. 2. The preponderance of the evidence is against a finding that a left knee disability is due to service, and there is no competent evidence that degenerative joint disease was manifested to a compensable degree within one year following service discharge. 3. The preponderance of the evidence is against a finding that the Veteran has residuals of a broken nose and against a finding that loss of smell is due to service. 4. The preponderance of the evidence is against a finding that the Veteran has a respiratory disorder, to include bronchial asthma. CONCLUSIONS OF LAW 1. A right knee disability was not incurred in or aggravated by service and arthritis may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. A left knee disability was not incurred in or aggravated by service and arthritis may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 3. Residuals of a broken nose, to include loss of smell, were not incurred in or aggravated by service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 4. A respiratory disorder, to include bronchial asthma, was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Proper VCAA notice 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) must ask the claimant to provide any evidence in her or his possession that pertains to the claim. 38 U.S.C.A. § 5103(a); C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was provided with VCAA notice in a January 2006 letter. See letter. This letter informed him of the evidence necessary to substantiate a claim for service connection, what evidence VA would obtain, what evidence he was expected to provide, and of what assistance VA could provide in obtaining evidence. This letter did not inform him of how disability evaluations and effective dates are assigned; however, the Board finds that the Veteran is not prejudiced by this for two reasons. One, the Board is denying the claims and thus there is no effective date or evaluation being assigned. Two, the RO provided this information in an April 2008 letter, and the claim was subsequently adjudicated in a January 2009 statement of the case. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (VCAA timing defect may be cured by the issuance of fully compliant notification followed by readjudication of the claim); see also Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (discussing the rule of prejudicial error). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(d). VA will help a claimant obtain records relevant to his claim(s), whether or not the records are in Federal custody, and that VA will provide a medical examination and/or opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has met the duty to assist the Veteran in the development of the claims. The Veteran's service treatment records have been obtained to the extent possible. The Veteran claimed he had been in an accident, and to assist the Veteran with such allegation, VA contacted the National Personnel Records Center (NPRC) for a line of duty determination. The NPRC responded that no such document was of record. VA provided the Veteran with VA examinations in VA examination in June 2006 and February 2013. As noted in the Introduction, VA provided the Veteran with a hearing before the Board. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the undersigned fully explained the issues involved. See transcript on page 2. While the undersigned did not suggest the submission of evidence that may have been overlooked, the Board finds there was no prejudice. Specifically, during the hearing, the undersigned asked the Veteran about each disability and why he felt that it was incurred in service. Following the hearing, the Board remanded the Veteran's claims to provide him with an examination in connection with the right and left knee disabilities and to have him provide VA with permission to obtain private medical records from Dr. Kuzio, which, based on submissions from Dr. Kuzio, he had personal knowledge of the Veteran's disabilities. Therefore, to the extent that the Board did not meet all the requirements described in 38 C.F.R. § 3.103(c)(2) and Bryant, there has been no prejudice. In the December 2012 remand, the Board requested (1) the Veteran provide VA with permission to obtain private medical records from Dr. Kuzio; (2) the Appeals Management Center schedule the Veteran for a VA examination; and (3) VA to readjudicate the issues. The Veteran did not respond to VA's request for permission to obtain the medical records from Dr. Kuzio. The Board notes that such is a violation of VA regulations. See 38 C.F.R. § 3.159(c)(1)(i) & (ii) (2012) (claimant must cooperate fully with VA's reasonable efforts to obtain relevant records from non-Federal agency or department custodians and must authorize the release of existing records). This has prevented VA from making more informed decisions in this case, as Dr. Kuzio indicated he had treated the Veteran for three of the disabilities being decided. A claimant has an obligation to cooperate in the development of evidence pertaining to his claims, and the failure to do so puts the claimant at risk of an adverse adjudication based on an incomplete and underdeveloped record. See Kowalski v. Nicholson, 19 Vet. App. 171, 178 (2005). As an aside, the Board is aware that the Veteran had given VA permission to obtain Dr. Kuzio's medical records in a February 2006 VA Form 21-4142, Authorization and Consent to Release Information to VA. At that time, VA did not request the records. This was one of the bases for the Board's December 2012 remand. Medical releases have a limited time period in which they can be used. Thus, in order to obtain Dr. Kuzio's records following the 2012 remand, the Veteran needed to complete a new VA Form 21-4142. Thus while it was VA's inaction that initially prevented VA from obtaining the records, it was subsequently the Veteran's inaction that prevented it from obtaining the records. A VA examination was conducted in February 2013, and the examiner reviewed the claims file and addressed all the necessary clinical findings and medical opinions, for which he provided a rationale. Lastly, VA readjudicated the claims in a February 2013 supplemental statement of the case before sending the case back to the Board. Thus, the Board finds the AMC substantially complied with the December 2012 remand instructions. For the above reasons, the Board finds the duties to notify and assist have been met, and it may consider these claims at this time. II. Service Connection Generally, service connection may be granted for a 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). In addition, service connection may be granted for any disease diagnosed after discharge, when all the evidence including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). For certain chronic diseases, such as arthritis (degenerative joint disease), service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In order to prevail on the issue of service connection, there must be competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). At the September 2012 hearing before the undersigned, the Veteran testified that he felt the right and left knee disabilities were due to wear and tear his knees sustained during his period of service. As to the remainder of his disabilities, he stated he was driving a fuel tank and that he fell asleep and fell over an embankment, which caused him to hit his nose on the steering wheel. He stated he went to see the medic after the accident and was told he needed only a Band-Aid on his nose-that there was nothing they could do for his nose. He implied that his broken nose was not discovered by anyone at that time. He stated that after this incident, he noticed that he did not have a sense of smell. The Veteran testified that he did not develop asthma in service but after service in the early 1990s, which he believes is related to the in-service accident with the fuel tank. Right and left knee disabilities After having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against the award of service connection for right and left knee disabilities. As noted above, the Veteran is not claiming a specific injury to his knees during service, but rather the wear and tear that occurred to his knees throughout service while performing his duties. At the time of the June 2006 VA examination, the examiner noted that x-rays of the knees were normal and diagnosed bilateral knee strain. This means that 20 years following service discharge, there was no evidence of degenerative joint disease or arthritis. Thus, service connection on a presumptive basis is not warranted since arthritis was not manifested to a compensable degree within one year following service discharge. The Board remanded the claims to have a medical professional address whether it was at least as likely as not that any current bilateral knee disability had its onset in service. In a February 2013 VA examination report, the examiner diagnosed arthritis in both knees and found that it was less likely as not that such was the result of service. The examiner explained that the Veteran reported at the June 2006 examination that the onset of pain had begun in 1996, which she noted was many years following service discharge. She added that the Veteran's current examination showed "minimal degenerative joint disease of the knees." She stated such diagnosis was a wear and tear of the joint surface and was due to age-related changes. Thus, she concluded that it was less likely than not that the degenerative joint disease of the Veteran's knees was caused by or a result of his service from 1984 to 1987. The Board accords this medical opinion high probative value. The examiner reviewed the claims file, she provided her opinion, and she supported her opinion with medical principles and evidence in the claims file. In a January 2006 "Personal Physician's Statement," the Veteran's physician wrote that the history of flat fleet and running during service "may have contributed" to the current problem with bilateral knee pain. The Board has accorded little, if any, probative value to this opinion for several reasons. One, the Veteran is not service connected for flat feet, which was one of the reasons Dr. Kuzio attributed the knee pain to service (the claim was denied in the October 2006 rating decision on appeal, and the Veteran did not appeal the denial of such claim). Two, the use of the wording "may have contributed" is too speculative to establish a nexus between the knee pain and service. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion stating veteran "may have been having some symptoms of his multiple sclerosis for many years" could also be interpreted as "may not have" and therefore deemed too speculative). Three, the examiner did not provide a rationale for the opinion. Four, the February 2013 VA medical opinion outweighs this opinion, as the VA examiner provided a rationale for her opinion. The Veteran is competent to state that he sustained wear and tear to his knees during service. He has not made an allegation of chronic knee pain from service to the present time; rather, he reported in 2006 that his knee pain had its onset 10 years prior, which, as noted by the February 2013 examiner, was many years following service discharge (approximately 10 years). This fails to show chronic knee pain since service discharge. Additionally, the Veteran is not competent to assert that the current degenerative changes found in the knee are due to service, as that requires medical knowledge. To the extent that the Veteran may deem his opinion as being competent, the Board accords more probative value to the February 2013 VA examiner's opinion, which was based upon a review of the record and medical principles, which she laid out in explaining her conclusion. For the above reasons, the Board finds the preponderance of the evidence is against a finding that the Veteran's current right and left knee disabilities, to include degenerative joint disease, are related to service. As such, service connection for right and left knee disabilities is not warranted. In reaching this decision, the Board considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Residuals of broken nose, to include loss of smell After having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against the award of service connection for residuals of a broken nose, to include loss of smell. First, the Board finds that there is no competent evidence that the Veteran has residuals of a broken nose (the loss of smell will be addressed separately). At the time of the June 2006 VA examination report, the examiner found no evidence of residuals of a broken nose based upon the clinical findings and x-ray evidence. The examiner, however, diagnosed the Veteran with anosmia or loss of smell. Thus, there is competent evidence of a current diagnosis of loss of smell. However, even accepting that there is a current disability of loss of smell, the Board finds there is a lack of competent and credible evidence of a nexus between the loss of smell and service, which is explained below. The Veteran claims that he broke his nose in a fuel tanker accident, when he fell asleep at the wheel, and his nose hit the steering wheel when the tanker rolled over. The Board finds that the incident as described by the Veteran is not credible for multiple reasons. One, the service treatment records show no treatment for an injury following an accident. Two, when VA sought the line of duty determination (since one must be created when a car accident occurs), there was no such document in the records. Three, the lay statement from the Veteran's friend did not indicate that he witnessed the Veteran in a rollover accident; rather, the friend said he saw the tanker being towed and that the Veteran told him he was in a wreck. Four, when the Veteran's nose was examined in June 2006, the examiner found no evidence of a prior broken nose, which is supported by the x-rays that revealed no abnormality of the nose. Five, the Veteran claims that documents he submitted show that he was forced to pay for the damages for the tanker/truck, but those documents relate to drills that occurred in 1988 and 1989-after the Veteran's service discharge. In other words, these documents do not support the Veteran's allegation of having money deducted from his pay to pay for an accident that occurred during his period of service from 1984 to 1987. It is not just an absence of evidence that has caused the Board to conclude the injury did not happen but the fact that had the injury happened, there would be at least some documentation to support it. The Board finds as fact that the preponderance of the evidence is against a finding that the Veteran sustained a broken nose in service. Because of the this finding, the Board finds that the preponderance of the evidence is against a finding that the Veteran's loss of smell is due to service. The June 2006 examiner did not attribute the loss of smell to service. Dr. Kuzio indicated that the Veteran reported he had lost his smell in service due to an injury-a fact that the Board rejects as not credible. Thus, Dr. Kuzio's opinion is based upon history reported by the Veteran, which history is found to be inaccurate. Thus, Dr. Kuzio's statement cannot establish a nexus to service. See Kowalski, 19 Vet. App. at 179 (Board "may reject a medical opinion that is based on facts provided by the veteran that have previously been found to be inaccurate"). In conclusion, the Board finds that the competent and credible evidence is against a finding that the Veteran broke his nose in service and developed anosmia or loss of smell as a result. In other words, while the Veteran has a loss of smell, the preponderance of the evidence is against a finding that it is due to an in-service accident for all the reasons laid out above. In reaching this decision, the Board considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert, 1 Vet. App. 49. Respiratory disorder, to include bronchial asthma After having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against the grant of service connection for a respiratory disorder, to include bronchial asthma. Specifically, the competent evidence of record shows the Veteran does not have a current respiratory disorder. The Veteran was examined by VA in June 2006. He underwent a pulmonary function test, which interpretation was "normal spirometry." A sinus x-ray was normal. While the examiner acknowledged the Veteran's report of episodes of cough and shortness of breath, he found no objective evidence of asthma. The Veteran is competent to report that he has episodes of cough and shortness of breath; however, he is not competent to attribute the diagnosis of asthma as the cause of these symptoms that can be attributable to other disorders. The Veteran has not brought forth any competent evidence from a medical professional that he currently has asthma to support his allegations. His statements and testimony are insufficient to establish current residuals or are outweighed by the 2006 clinical findings and pulmonary function test. Again, coughing, congestion and shortness of breath are symptoms that can be attributable to multiple disorders. In order for service connection to be granted, the evidence must establish, among other things, that the claimant currently has the disability for which service connection is claimed. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability, and in the absence of competent proof of present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In reaching this decision, the Board considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert, 1 Vet. App. 49. ORDER Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for residuals of a broken nose, to include loss of smell is denied. Entitlement to service connection for a respiratory disorder, to include bronchial asthma is denied. _________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs