Citation Nr: 1319188 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 10-09 517 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for a bilateral knee disorder. 3. Entitlement to service connection for a right hip disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from December 1952 to November 1954. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which, in pertinent part, denied the current appellate claims. The Veteran and his spouse provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in November 2011. A transcript of this hearing has been associated with the Veteran's VA claims folder. This case was previously before the Board in April 2012, at which time the current appellate claims were remanded for further development to include a VA medical examination which addressed the nature and etiology of the claimed low back, bilateral knee, and right hip disorders. Such an examination was accomplished in June 2012 with an April 2013 addendum. All other development directed by the Board's remand appears to have been substantially accomplished. In fact, the Veteran's accredited representative acknowledged in a May 2013 written statement that the Board's remand had been complied with. Accordingly, a new remand is not required in order to comply with the holding of Stegall v. West, 11 Vet. App. 268 (1998). See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (Remand not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). FINDINGS OF FACT 1. The preponderance of the competent medical and other evidence of record is against a finding that the Veteran has a current low back disorder as a result of his active service. 2. The preponderance of the competent medical and other evidence of record is against a finding that the Veteran has a current disability of either knee as a result of his active service. 3. The preponderance of the competent medical and other evidence of record is against a finding that the Veteran has a current right hip disorder as a result of his active service. CONCLUSIONS OF LAW 1. The criteria for a grant of service connection for a low back disorder are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). 2. The criteria for a grant of service connection for a bilateral knee disorder are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). 3. The criteria for a grant of service connection for a right hip disorder are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The United States Court of Appeals for Veterans Claims (Court) has indicated that VCAA 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA must provide a claimant VCAA notice before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Dingess/Hartman, supra; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was sent pre-adjudication notice via a letter dated in November 2008, which is clearly prior to the June 2009 rating decision that is the subject of this appeal. He was also sent additional notification via an April 2012 letter, followed by readjudication of the appeal by a May 2013 Supplemental Statement of the Case which "cures" the timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication. Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34. These letters informed the Veteran of what was necessary to substantiate his current appellate claims, what information and evidence he must submit, what information and evidence will be obtained by VA, as well as the information and evidence used by VA to determine disability rating(s) and effective date(s). The Board also notes that the Veteran has actively participated in the processing of his case, and the statements submitted in support of his claims, to include from his accredited representative, have indicated familiarity with the requirements for the benefits sought on appeal. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (VA can demonstrate that a notice defect is not prejudicial if it can be demonstrated ... that any defect in notice was cured by actual knowledge on the part of the appellant that certain evidence (i.e., the missing information or evidence needed to substantiate the claim) was required and that the appellant should have provided it.); see also Overton v. Nicholson, 20 Vet. App. 427 (2006). In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claims and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. In any event, the Veteran has not demonstrated any prejudice with regard to the content or timing of any notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). In addition, the Board finds that the duty to assist a claimant in the development of his or her case has been satisfied. The Board acknowledges that the Veteran's service treatment and personnel records are not on file, and it has been noted that they may have been destroyed in a fire. In such situations VA has a heightened obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, 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 Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (Wherein the Court declined to apply an "adverse presumption" where records have been lost or destroyed while in government control which would have required VA to disprove a claimant's allegation of injury or disease). The Board also notes that various post-service medical records have been obtained and considered in conjunction with this case. Further, the Veteran has had the opportunity to present evidence and argument in support of his claims, to include at the November 2011 Board hearing. Nothing indicates he has identified the existence of any relevant evidence that has not been obtained or requested. For example, he has not identified outstanding evidence which relates the etiology of his current low back, knee, and right hip disorders to his active service. With respect to the aforementioned November 2011 Board hearing, the Court held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or VLJ 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 VLJ accurately noted the current appellate claims, and asked questions to clarify the Veteran's contentions. Although the VLJ did not specifically note the bases of the prior determinations or the elements that were lacking to substantiate the Veteran's appellate claims, the Veteran, through his testimony and other statements of record, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has he identified any prejudice in the conduct of this hearing. As such, the Board finds that, consistent with Bryant, the duties set forth in 38 C.F.R. 3.103(c)(2) have been satisfied. The Board further notes that the Veteran was accorded a VA medical examination regarding this case in June 2012 which included opinions in the April 2013 addendum that addressed the etiology of the low back, bilateral knee, and right hip disorders. As these opinions were based upon both a medical evaluation of the Veteran, and an accurate understanding of his medical history based upon review of his VA claims folder, the Board finds they are supported by an adequate foundation. No competent medical evidence is of record which specifically refutes the findings of the June 2012 VA examiner, and the Veteran has not otherwise identified any prejudice therein. Accordingly, the Board finds that this examination with addendum is adequate for resolution of this case. In view of the foregoing, the Board finds that the duty to assist the Veteran has been satisfied in this case. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Legal Criteria Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an 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 disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Analysis In this case, and for the reasons stated below, the Board finds that the preponderance of the evidence is against the Veteran's current appellate claims and they must be denied. The Veteran essentially contends that he developed disabilities of the low back, both knees, and the right hip while on active duty. Specifically, during his November 2011 Board hearing, he testified that these disabilities are attributable to an in-service injury sustained when he jumped into an air raid shelter. He also posited that his current orthopedic disorders could be attributable to the strenuous nature of his in-service duties operating a dozer or when marching carrying heavy equipment. Further, he testified that he sought treatment for right hip pain during service and was diagnosed with a right hip strain. He also indicated that he self-treated these conditions for years. As already noted, the Veteran's service treatment and personnel records are not on file, and they may have been destroyed in a fire. However, it has been asserted that the Veteran is entitled to the benefit of 38 U.S.C.A. § 1154(b) as having engaged in combat. In cases where a veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C.A. § 1154(b) and its implementing regulation, 38 C.F.R. § 3.304(d), are applicable. This statute and regulation ease the evidentiary burden of a combat veteran by permitting the use, under certain circumstances, of lay evidence. If the Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). The Federal Circuit has held that in the case of a combat veteran not only is the combat injury presumed, but so is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). To establish service connection, however, there must be the evidence of a current disability and a causal relationship between the current disability and the combat injury. Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board also notes, however, that the Federal Circuit has held that the term "engaged in combat with the enemy" in § 1154(b) requires that the veteran "personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality." Moran v. Peake, 525 F.3d 1157 (Fed. Cir. 2008). The Federal Circuit further held that a showing of no more than service in a general "combat area" or "combat zone" is not sufficient to trigger the evidentiary benefit of § 1154(b). Id. Moreover, it is observed that the Federal Circuit's holding in Moran is consistent with the findings of the VA Office of General Counsel in VAOPGCPREC 12-99 (Oct. 18, 1999) as to the meaning of the term "engaged in combat." In this case, the Board acknowledges that the record does show the Veteran had active service in Korea during the Korean War era. Nevertheless, the record does not show he received any awards or citation confirming combat service, and it does not appear consistent with his military occupational specialty (MOS) on being in an Engineer Construction Battalion. The Veteran indicated he sustained injuries from jumping into an air raid shelter. However, it is not clear from his testimony whether this was a drill or an actual attack. Further, as part of the development for a claim of posttraumatic stress disorder (PTSD), the Center for Unit Records Research (CURR) responded that the Command Report submitted by the Veteran's Battalion for the month of June 1953 had no information to substantiate the Veteran's claim of an air raid by the North Korean Air Force or an attack which included hand grenades and mortar shells. Moreover, his contention that these disabilities are due to his normal duties of operating a dozer or when marching carrying heavy equipment are clearly not based upon having engaged in combat with the enemy. In view of the foregoing, it does not appear that the provisions of 38 U.S.C.A. § 1154(b) and its implementing regulation 38 C.F.R. § 3.304(d) are actually applicable to this case. Nevertheless, the Board has already acknowledged that the Veteran's account of his in-service injury and activities is consistent with the circumstances of his service. His accounts are also consistent with his activities as documented by his submitted service-related photographs and fellow service member's statement. Further, his account of such injuries are within a lay person's ability to verify. Thus, the Board does find his account of in-service injury, etc., to be credible. Despite the foregoing, the Board must also note that there is no indication of any of the claimed disabilities until decades after the Veteran's separation from service. In pertinent part, there does not appear to be any reference to such conditions in the post-service treatment records on file which begin in January 2005 until sometime in 2010, although he did submit his claim in 2008. Further, while the Veteran is competent, as a lay person, to describe injuries and symptoms such as pain, whether he developed chronic disabilities of the specified joints and bones, which are internal, is not something subject to lay observation. Therefore, the Board finds that competent medical evidence is necessary in this case to both diagnose the claimed disabilities and to determine if they are causally related to service to include the Veteran's account of injuries therein. Here, nothing on file shows that the Veteran has the requisite knowledge, skill, experience, training, or education to render a medical opinion. Consequently, his contentions cannot constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1). The Board also notes that while his spouse provided supporting testimony at his November 2011 hearing, nothing in the record indicates she is qualified to provide competent medical evidence either. In this case, the only competent medical opinion to address the etiology of the Veteran's current disabilities of the low back, knees, and right hip is that of the June 2012 VA examiner which is against service connection being established. Specifically, the VA examiner opined in the April 2013 addendum that it was less likely than not that the currently diagnosed degenerative disc disease of the thoracolumbar spine, degenerative joint disease of the bilateral knees, and degenerative disc disease of the right hip had their onset while on active duty. In support of these opinions, the examiner noted the Veteran's account of in-service injuries as described at the November 2011 Board hearing. However, the examiner also noted the Veteran reported at the examination that he had no problems with his back until last summer when he fell off his porch. Further, the examiner noted that if the purported in-service injury did cause a disabling condition of the back, knees, and right hip, one would expect to have seen clinical objective evidence within the first years following discharge from active duty, but instead there were no complaints and the first notation of such was in 2008 when the Veteran filed his claim. Moreover, the examiner noted that the Veteran continued to work in a rigorous job that would also place strain on the thoracolumbar spine, bilateral knees, and/or right hip following his military discharge. Therefore, the examiner concluded that no link could be made between the current disabilities and the Veteran's period of active duty. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Here, the Board has already noted the June 2012 VA examiner was aware of the Veteran's medical history from review of the VA claims folder. Further, the examiner noted the Veteran's specific contentions regarding the claimed disabilities as part of the April 2013 addendum. The Board also notes that the examiner did not express the etiological opinions in equivocal or speculative language. Moreover, the examiner supported these opinions by stated rationale which is consistent with the documented medical history. As stated above, no competent medical evidence is of record which specifically refutes the opinions of the VA examiner, nor is any prejudice demonstrated therein. The Board further notes that the VA examiner is presumed to be competent to provide such medical evidence. Therefore, the Board finds that the VA examiner's opinions are persuasive and entitled to significant probative weight in evaluating the Veteran's service connection claims. For these reasons, the Board concludes that the preponderance of the competent medical and other evidence of record is against a finding that the Veteran has current disabilities of the low back, both knees, and/or right hip as a result of his active service. As the preponderance of the evidence is against these claims, the benefit of the doubt doctrine is not for application in the instant case. See generally Gilbert, supra; see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Consequently, the benefit sought on appeal with respect to these claims must be denied. ORDER Service connection for a low back disorder is denied. Service connection for a bilateral knee disorder is denied. Service connection for a right hip disorder is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs