Citation Nr: 1314348 Decision Date: 05/01/13 Archive Date: 05/15/13 DOCKET NO. 08-31 864 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a bilateral ankle disability. 2. Entitlement to service connection for a bilateral knee disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran had active service from January 1963 to January 1966. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma which denied service connection for a bilateral ankle condition and for a bilateral knee condition. In May 2010, the Veteran testified at a videoconference hearing at the RO before the undersigned Veterans Law Judge. In November 2010, the Board remanded the appeal to the RO via the Appeals Management Center (AMC) for further development. On October 27, 2011, the AMC received additional evidence from the Veteran without a waiver of initial review by the Agency of Original Jurisdiction (AOJ). On October 31, 2011, the AMC received notification from the Veteran indicating his desire to waive AOJ review of any new evidence submitted since the issuance of the most recent supplemental statement of the case on October 17, 2011. Thus, the Board will proceed with the adjudication of his appeal. FINDINGS OF FACT 1. A bilateral ankle disability did not have its onset during active service or for many years thereafter and it is not causally related to such service. 2. A bilateral knee disability did not have its onset during active service or for many years thereafter and it is not causally related to such service. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral ankle disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). 2. The criteria for service connection for a bilateral knee disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant and his or her representative, if any, prior to the initial unfavorable decision on a claim by the AOJ of any information and any 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 claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. The Veteran was notified via letter dated in January 2008 of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. This letter accordingly addressed all notice elements and predated the initial adjudication by the RO in February 2008. Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, all necessary development has been accomplished and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination as records from the Social Security Administration (SSA). The Veteran's statements in support of the claims are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the claims. VA provided the Veteran with an examination in March 2011 to determine the nature and etiology of his disabilities. When VA undertakes to provide an examination or obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds the examination report to be thorough and adequate upon which to base a decision on the claims. The VA examiner personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and provided the information necessary to decide the claims. Brief but relevant and important opinions were provided. The Board finds the opinions to be adequate, as they were based on a full reading of the private and VA medical records in the claims file as well as the Veteran's own statements. In the November 2010 remand, the Board requested that the AMC ask the Veteran to provide information on any post-service knee injuries, obtain the Veteran's SSA records and outstanding private and VA medical records, and afford the Veteran an examination to determine the nature and etiology of his disabilities. As noted above, the Veteran's SSA records have been obtained and the Veteran has been afforded an examination. In a January 2011 letter, the AMC asked the Veteran to identify additional medical evidence and to specifically complete an authorization form for several private providers. The AMC obtained additional VA medical records; however, the Veteran did not identify any records and he did not complete any authorization forms. Thus, the Board finds that no further duty to assist in obtaining any additional treatment records is required to comply with the remand. See Dyment v. West, 13 Vet. App. 141 (1999). Given the above, no further notice or assistance is required to fulfill VA's duty to assist. 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). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection may also 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) (2012). In this case, the disorders at issue, arthritis, qualify as a "chronic disease" listed under 38 C.F.R. § 3.309(a) (2012). Therefore, 38 C.F.R. § 3.303(b) (2012) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "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. With chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a disorder noted during service is not shown to be chronic, then generally a showing of "continuity of symptoms" after service is required. 38 C.F.R. § 3.303(b) (2012). Where a veteran served for 90 days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year from the date of separation 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. While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. The presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2012). Service connection requires competent evidence of (1) a current disability; (2) the in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In this case, the Veteran essentially contends that his current bilateral ankle and bilateral knee disabilities are related to injuries he sustained as a paratrooper in service. He claims he was a paratrooper for two and a half years in service, and that he went to jump school at Fort Benning. He claims he made 27 jumps total, and that most of them were with a full pack and rifle. He admits that he does not know if all of his knee and ankle problems are from being a paratrooper, but thinks his problems started in service. Finally, he asserts that he broke his left ankle in 1958 prior to service but believes his ankle had fully healed. The Veteran's service treatment records do not reflect any complaints, findings or diagnoses of an ankle or knee disorder. During his enlistment examination, in a report of medical history, he reported he fractured his left ankle in 1958 but did not have any residual disability. During his discharge examination, he denied any knee or foot problems and did not report any ankle problems, and evaluation of the feet and lower extremities was normal. An undated note on the report of medical examination indicates there has been no change in his physical condition since the examination. The Veteran's service personnel records show that he was in Basic Airborne Training from May to June 1963, successfully completed the Airborne Course in June 1963 and received the Parachute Badge. They also show that he was assigned to Fort Benning. Post service, the first evidence of knee problems appears in private medical records dated in February 2007. X-rays at that time showed minimal degenerative changes in both knees. The first evidence of ankle problems appears in his November 2007 claim for VA benefits. The Veteran has submitted letters from two private chiropractors, each of whom rendered opinions supporting his claims. In two undated letters, Ryan Marshall, D.C., indicated examining the Veteran in August 2007 for complaints of chronic bilateral knee pain and right ankle pain, and that examination showed meniscus injuries in the knees and minimal degenerative changes. Dr. Marshall related the Veteran's belief his injuries first occurred during service when he was training for his parachute jumps and had to jump from a moving truck. Dr. Marshall also noted the Veteran's report he later performed 27 jumps and on the 5th jump he sprained his right ankle. Dr. Marshall diagnosed degenerative joint disease of the right ankle and right and left knees due to repetitive trauma and misuse. Based on the Veteran's contentions, Dr. Marshall opined that it was as likely as not that the Veteran's right ankle degenerative joint disease and right and left knee degenerative joint disease had been caused by his "service related injuries and activities." In a letter dated in March 2009, Dr. Rebekah Nunn reported examining the Veteran in February 2009 due to pain and swelling in the ankles and feet. Dr. Nunn noted that the Veteran had a history of parachuting out of planes in service, and that arthritis was an injury to the joints most often due to trauma and repetitive stresses as would occur from the impact of the force being absorbed in the joints from a landing. Dr. Nunn opined that the Veteran's injuries were associated with frequent trauma from the high impact force landing which occurred from parachuting. An anonymous letter received in July 2010 from a "Vietnam veteran" contains commentary regarding the Veteran injuring his knees after service while working for the city. The Veteran's SSA records show that he worked as a superintendent in construction from 1989 to 1992 and as a building inspector from 1992 to 2007, with his duties in the latter job requiring climbing stairs and ladders and walking through buildings. Most notably, they indicate that his knee problems began in 2005 or 2006 and have been attributed to work-related injuries. The Veteran was afforded a VA examination in March 2011. After evaluation of the Veteran and of his claims file, the examiner provided diagnoses of right and left ankle pain, right knee pain and left knee pain with minimal degenerative joint disease. The examiner then opined that the Veteran's bilateral ankle and bilateral knee disabilities did not have their onset in service or within one year thereafter, and are not related to any event in service, to include his experience as a paratrooper with 27 jumps. The examiner further opined that the Veteran's disabilities are related to post-service events such as his four years as a construction worker and frequently climbing step ladders and kneeling. The examiner noted the Veteran's report of never being removed from training or regular duty for any lower extremity complaints in service and the discharge examination report showing no lower extremity complaints or abnormal findings. The examiner then stated that the opinions expressed by Drs. Marshall and Nunn are without merit as their opinions do not acknowledge the Veteran's post-service activities such as hunting in the woods and construction work. The examiner also noted the Veteran's report of initial knee care in 2007 and no ankle care at any time. The examiner indicated that any ankle or knee disabilities related to service ending in 1966 would have expressed themselves sooner than in 2007. The examiner added that x-rays were normal except for minimal left knee degenerative joint disease and that is not consistent with trauma in the 1960s. Lastly, the examiner indicated that lower extremity conditions related to parachute landings would impact the ankles more than the knees, which is not the case for the Veteran. In an October 2011 statement, the Veteran indicated that he has not hunted in years and when he did he drove a four-wheeler to get to and from his hunting spot. Turning to the merits of the appeal, although there is medical evidence in favor of the claims, the Board finds that the medical evidence against the claims is of greater probative value. See Hayes v. Brown, 5 Vet. App. 60 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190 (1992)). The positive medical opinions are based primarily on the Veteran's reported history of parachute jump training and subsequent jumps in service, and not based on a review of his claims file. While the review (or lack of review) of the claims file is not dispositive of the probative value of a medical nexus opinion, such review is nonetheless deserving of consideration when, as here, there is relevant evidence in the claims file which may affect the nexus outcome offered by the examiner upon consideration of the evidence in the claims file. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In that regard, the record shows treatment for a post-service injury to the knees and no evidence of treatment for the ankles. Moreover, the first post-service evidence of complaint or medical treatment for any knee or ankle problems does not appear until many years - over 40 years - after discharge. The passage of many years between discharge from active service and complaints or medical documentation of a claimed disability may be considered as evidence against a claim of service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Thus, the Board finds the opinions to be of little probative value. On the other hand, there is evidence of a post-service injury to the knees and the negative medical opinions are based not only on examination of the Veteran, but also a review of his documented medical history. Further, in providing the negative opinions, the VA examiner discounted the positive opinions, noting their failure to consider the Veteran's post-service activities like construction work. Moreover, the examiner provided a sound rationale. Thus, the Board finds the opinions of the VA examiner to be of greater probative value. The Board notes that x-rays taken for the VA examination did not show any arthritis in the right knee and the examiner's opinion on the right knee disability was based in part on that finding. As noted above, February 2007 x-rays showed minimal arthritis in the right knee. However, the Board finds that the examiner's reliance on the negative x-rays conducted in conjunction with the VA examination does not significantly reduce the probative value of his opinion. In that regard, the examiner noted that the current minimal arthritis in the left knee is not consistent with trauma in the 1960s. Even if the Board were to concede that the Veteran has arthritis in the right knee, the evidence indicates that it would be minimal. Thus, the examiner's statement that minimal degenerative joint disease in the left knee would not be consistent with trauma in the 1960s also applies to the right knee. Given the negative service treatment records, the lengthy period of time after discharge until the documentation of ankle and knee disabilities, evidence of a post-service work-related injury to the knees, and the more probative negative medical opinions, the Board finds that the Veteran's bilateral ankle and bilateral knee disabilities did not have their onset during active service or for many years thereafter, and they are not causally related to such service, to include parachute jump training and subsequent jumps. The Board notes that the Veteran reported on his enlistment report of medical history that he fractured the left ankle prior to service. However, he also reported having no residual disability from that injury and examination at that time found normal feet and lower extremities. Moreover, as noted earlier, his service treatment records do not show any complaints, findings or diagnoses of a left ankle disorder and there is no post-service evidence of left ankle problems until over 40 years after discharge. Thus, without any indication of an increase in disability of a left ankle disorder during service or for many years thereafter, service connection based on aggravation of any pre-existing left ankle disability is not warranted. The Board acknowledges the Veteran's assertion that he has had problems with his ankles and knees since active service. The Board notes that the Veteran is competent to give evidence about observable symptoms such as pain. Layno v. Brown, 6 Vet. App. 465 (1994). The Board also notes that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). To the extent that he is claiming to have experienced continuous pain in the ankles and knees since active service, he is not found to be credible. Again, his service treatment records are negative for any mention of ankle or knee problems. There is no medical evidence of knee problems after discharge until 2007 at which time he dated the onset of symptoms to 2005 or 2006. There is no documentation of ankle problems until he filed his claim in November 2007. Lastly, if he had experienced ankle and knee problems continuously since service, it would be reasonable to expect that he would have filed a disability claim much sooner than in 2007. Given the above, the Board finds that the statements alleging or implying continuity of symptoms are not credible in this case. Therefore, continuity of symptomatology is not established by either the competent evidence or the Veteran's own statements. Moreover, the weight of the probative medical evidence of record does not relate the current ankle and knee disabilities to active service. In conclusion, service connection for bilateral ankle and bilateral knee disabilities is not warranted. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a bilateral ankle disability is denied. Service connection for a bilateral knee disability is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs