Citation Nr: 1320504 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 09-15 491 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a back disorder. 2. Entitlement to service connection for a right knee disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from June 1958 to March 1960. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a rating decision issued by the Regional Office (RO) in San Juan, Puerto Rico. The case comes to the Board from the RO in Winston-Salem, North Carolina. FINDINGS OF FACT 1. A chronic back disorder was not manifest during service and is not attributable to service. 2. A chronic right knee disorder was not manifest during service and is not attributable to service. CONCLUSIONS OF LAW 1. A back disorder was not incurred in, or aggravated by, service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 2. A right knee disorder was not incurred in, or aggravated by, service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims and Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants with substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. § 3.102, 3.156(a), 3.159. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate his or her claim. 38 U.S.C.A. § 5103(a), 38 C.F.R § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 186-187 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), 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; and (3) that the claimant is expected to provide. The Board notes that 38 C.F.R. § 3.159 was revised in part, effective May 30, 2008. See 73 Fed. Reg. 23,353-23,356. The third sentence of 38 C.F.R. § 3.159(b)(1), which stated that "VA will also request that the claimant provide any evidence in the claimant's possession that pertains to the claim," was removed. This amendment applies to all applications pending on, or filed after, the regulation's effective date. VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112, 115 (2004). However, the VCAA notice requirements may be satisfied notwithstanding errors in the timing or content of the notice if such errors are not prejudicial to the claimant. Id at 121. Further, a defect in the timing of the notice may be cured by sending proper notice prior to a re-adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333-1334 (Fed. Cir. 2006). The VA General Counsel issued a precedential opinion interpreting Pelegrini as requiring the Board to ensure that proper notice is provided unless it makes findings regarding the completeness of the record or other facts that would permit the conclusion that the notice error was harmless. See VAOGCPREC 7-2004. The United States Court of Appeals for the Federal Circuit reaffirmed the importance of proper VCAA notice in Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Mayfield and its progeny instruct that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents, is required to meet the VCAA's notification requirements. Id at 1320. However, VCAA notification does not require a pre-adjudicatory analysis of the evidence already contained in the record. See, e.g. Mayfield v. Nicholson, 20 Vet. App. 537, 541 (2006). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sum nom Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice requirements are applicable to all five elements of a service connection claim. Thus, the Veteran must be notified that a disability rating and effective date for the award of benefits will be assigned if service connection for a claimed disability is awarded. Id at 486. In this case, the Veteran was sent a letter in April 2007 that explained how VA could assist him with developing evidence in support of his claims. The April 2007 letter also explained what the evidence needed to show in order to establish service connection for a claimed disability as well as how VA assigns ratings and effective dates for service connected disabilities. VA also must make reasonable efforts to assist the claimant with obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has of record evidence including service treatment records, VA treatment records, private treatment records, and the written contentions of the Veteran. The Veteran was provided a VA examination in connection with his claims. The VA examiner reviewed the claims file, including the Veteran's service treatment records, and provided a reasoned opinion as to the relationship of the Veteran's right knee and back disorders to service. Although the Veteran's private treatment records were not in the claims file at the time of the examination, review of these records does not indicate any relationship between the Veteran's service and his right knee or back disorders and the rationale of the examiner is applicable notwithstanding the subsequent addition of these records, which provide no additional information about a link to service. The Board finds that VA satisfied its obligations pursuant to the VCAA in this case. Service connection The Veteran contends that he has knee and back disorders as a result of his military service. Specifically, the Veteran claims that he injured his knee and back in a December 1959 parachuting accident in service which involved injuries and a fatality and that he had knee and back pain since that time. Service connection may be granted for disability resulting from disease or injury that was incurred in, or aggravated by, service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection for some chronic diseases, such as arthritis, may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge if all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). There is no record of complaints or treatment related to the low back. There is an October 1959 entry indicating that the Veteran's knee was painful and swollen since the morning and got worse after he jumped later in the day. There was some slight swelling and no point tenderness. The next day it was reported that the X-ray examination was normal. The ligaments were intact and there was no effusion. There was a report of tenderness. The assessment was of a minimal medial ligament injury. Both the Veteran's spine and lower extremities were assessed as normal at his March 1960 separation physical. The Veteran submitted a statement from an acquaintance who related that he recalled that the Veteran was hurt in a jump, but he did not remember any details. The Veteran's history given to his treatment providers varies. Around the time that the Veteran filed his claim, he started reporting to his health care providers that he was in a parachuting accident in service which caused his back and knee symptoms. However, at other times he denied any injury to the back or knees, such as in January 2007 when a surgery consult note documented the Veteran's report of no injuries and back pain for one year radiating to the lower extremities, right greater than left, in stark contrast to his reports of back pain since an in service accident. Earlier private treatment records do not support the Veteran's given history of a parachute accident in service that caused injury to his knee and back. These records make no mention of an in service injury. The Veteran submitted some April 1962 records showing that he was treated for acute gastroenteritis. The records pertaining to that hospital stay are largely illegible but do not appear to indicate any treatment for the low back or right knee. An August 1985 record indicated that the Veteran began experiencing pain and swelling in his right knee two days ago, x-rays were normal and the assessment was probable tear of the right knee medial meniscus. A right knee sprain in December 1988 is noted with no x-ray abnormalities with an assessment of mild second degree sprain of the medial collateral ligament with probably mild subluxation of the patella. Neither of these records references a preexisting injury from a parachuting accident in 1959. A December 1994 x-ray of the Veteran's low back showed spondylolysis pars interarticularis L5-S1 and grade II spondylolisthesis. X-rays were taken as a result of complaints of low back pain with hip and abdominal pain. There is nothing relating this pain to anything that occurred during the Veteran's service. A June 2006 medical examination for a commercial driver's license indicated that the Veteran had back pain "for years" but does not indicate the etiology or onset date of the Veteran's back pain. The Veteran was afforded a VA examination in August 2007. At that time, the Veteran reported that he hurt his back and right knee during a "bad jump." The examiner diagnosed right knee patellofemoral syndrome and degenerative disk disease of the lumbosacral spine with S1 sensory radiculopathy. The examiner opined that it was less likely than not that the Veteran's spine and right knee disorders were caused by injuries during military service. The examiner noted that the Veteran's service treatment records did not provide support for the history he gave. There was nearly complete lack of documentation related to most of his spine and right knee history. There was no indication of any chronic or serious injury to the right knee or back. There were no treatment records until many years after service. The evidence shows that it is less likely than not that the Veteran's current right knee and back disorders are related to a disease or injury in service. In that respect, the Board finds that the Veteran's story about being injured in a parachuting accident is not credible. There is no documentation of any back injury from a parachuting accident in his service treatment records, and no mention is made about injuries sustained in a parachuting accident documented in any of the Veteran's private or VA treatment records until around the time that this claim was filed. In regard to the knee, there was only a report that the knee was worse following a jump. The Veteran also alleged that there were injuries and a fatality in this same accident that caused him to develop PTSD, but his extensive in service psychiatric treatment records do not mention this at all, although numerous references are made to the Veteran's general frustration with having to take orders and Army life in general. This is inconsistent with his current reports of a parachuting accident that caused significant physical injuries. While the Veteran submitted a statement from an acquaintance to the effect that he remembered the Veteran getting hurt on a jump, he was unable to provide any details and his statement is outweighed by the other evidence indicating that the jump accident described by the Veteran did not occur as he stated. Moreover, a VA examiner reviewed the Veteran's service treatment records, and opined that it was less likely than not that the Veteran's current right knee and back disorders were related to his military service, noting the complete lack of documentation for the story he gave. There is no medical evidence relating the Veteran's right knee or back injury to his service, and as previously discussed the history that he gave of injuries sustained in a parachuting accident is not credible. The Veteran is competent to report that he sustained back and knee injuries during service and that the problems continued. However, his recent reports are inconsistent with the service records and inconsistent with the normal findings regarding the spine and lower extremities at separation. His recent report is also inconsistent with the March 1960 report of medical history when he denied a history of a trick or locked knee and bone, joint or other deformity. We find that the clinical findings during service, the report of a minimal ligament injury, and his denial of specific pathology at separation to be far more credible and probative than his more recent assertions. The Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine is inapplicable in the instant case because the preponderance of the evidence is against the Veteran's claim. See, e.g., Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). Accordingly, the appeal is denied. ORDER Service connection for a right knee disorder is denied. Service connection for a back disorder is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs