Citation Nr: 1321027 Decision Date: 06/28/13 Archive Date: 07/05/13 DOCKET NO. 07-01 950 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for a right knee disability. 3. Entitlement to service connection for a left 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 served on active duty from June 1977 to November 1981. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In January 2010, August 2011 and March 2013, the Board remanded the matters for further development. A review of the record shows that there has been substantial compliance with the remand directives. Dyment v. West, 13 Vet. App. 141 (1999). The issue of entitlement to a cervical spine disability has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over that issue and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. A back disability did not have its onset during active service or within one year thereafter and it is not causally related to such service. 2. A right knee disability did not have its onset during active service or within one year thereafter and it is not causally related to such service. 3. A left knee disability did not have its onset during active service or within one year thereafter and it is not causally related to such service. CONCLUSIONS OF LAW 1. A back disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. A right knee disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 3. A left knee disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating claims 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 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) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); 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, to including 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. 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. 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). The Veteran was notified in a letter dated in September 2005 of the criteria for establishing service connection, the evidence required, and his and VA's respective duties for obtaining evidence. The letter predated the initial adjudication by the RO in December 2005. In a May 2006 letter, the Veteran was notified of how VA determines disability ratings and effective dates. The claims were thereafter readjudicated in December 2006. Thus, any timing deficiency has been cured. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Next, VA has a duty to assist the Veteran in the development of the claims. That duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). In this case, all necessary development has been accomplished and therefore appellate review may proceed without prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service medical records, and post-service reports of VA and private treatment and examination, including records from the Social Security Administration (SSA). The Veteran's statements in support of the claims are of record. The Board has carefully reviewed those 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 April 2010 to determine the nature and etiology of his disabilities. 38 C.F.R. § 3.159(c)(4) (2012). When VA provides an examination or obtains an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). In August 2011, the Board found the examiner's opinion incomplete and requested another examination, which was conducted in October 2011. The Board finds that 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 needed to decide the claims. Brief but relevant opinions were provided. The Board finds the opinions to be adequate, as they were based on a full reading of the records in the claims file as well as the Veteran's own statements. The Board finds that no further notice or assistance is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 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 back disability at issue, to the extent that it is arthritis, may be a chronic disease listed under 38 C.F.R. § 3.309(a) (2012). Therefore, 38 C.F.R. § 3.303(b) 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 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 disability noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection. 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 from service, the disease shall be presumed to have been incurred in service, even though there is no evidence of the disease in service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). 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. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). 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). Service connection requires competent evidence of (1) a current disability; (2) the incurrence or aggravation of a disease or injury during service; 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). The Veteran contends that his current back and bilateral knee disabilities are due to a fall during service. Specifically, he contends that while climbing a telephone pole to string electrical wire through trees, he fell twenty to thirty feet. He contends that he could not move when he hit the ground, and felt pain in his back and knees. He asserts that he was taken back to barracks, where he stayed in bed for about a week. He further asserts that he sought treatment for his injuries in service and was given pain medication and placed on physical profile. He contends that since that injury, he has had recurring problems with his back and knees. The Veteran testified at a hearing before a Decision Review Officer in December 2007. He testified that during service he fell twenty to thirty feet from a telephone pole, landing on his knees and jamming his hips. With regard to the back disability, the Veteran's service medical records show that in March 1978, he complained of severe low back pain since lifting wall lockers and was found to have a paraspinal muscle spasm. In October 1978, he complained of back pain, had full range of motion, and an X-ray study was negative for any fracture. He was assessed with a back strain and given heat and pain medication. In September 1979, he complained of recurrent low back pain, reporting that he had been injured while playing football five days earlier and muscle relaxants temporarily relieved the pain. There was a possible slight lumbar spasm, the right greater than the left, and the diagnosis was a mild lumbar strain. One week later, he again complained of back pain, was found to have decreased range of motion, and told to apply moist heat, take pain medication, and rest. In February 1980, he complained of a backache after falling off a truck. In August 1980, he reported having chronic low back pain for two years and was assessed with a back strain. He elected not to undergo a separation examination and, after a review of the medical records, a physician indicated that one was not required. After service, VA treatment records show complaints of back pain in May 1998. In April 2001, he complained of low back pain, which radiated to his right lower extremity. In April 2002, he was involved in a motor vehicle accident during which he was thrown into the back seat and suffered, among other things, contusions to the face, chest, and abdomen, and multiple rib fractures. In June and July 2005, he complained of low back pain and received a steroid injection. He was diagnosed with a mild muscle spasm with diffuse tenderness in the lower back. With regard to the knee disabilities, the Veteran's service medical records show that in July 1977, he was assessed for questionable chondromalacia. In November 1977, he reported that he had fallen from a telephone pole onto his knees. He reported that his right knee had been previously "drained." There was full range of motion and no edema. An X-ray study was negative. In August 1978, he reported a history of a right knee fracture and was diagnosed with chondromalacia. In January 1979, there was a provisional diagnosis for Osgood-Schlatter's disease. In March 1979, he reported that he fell while skating and his knee had temporarily dislocated. An X-ray study was negative. The diagnosis was a right knee sprain. In April 1979, he reported that he had been kicked in the left knee and was assessed with a bruise. In October 1979, he reported that his knees swelled and he had a sharp pain when he walked. The knee was tender, and there was bony swelling in the tibial tuberosity. An X-ray study showed increased growth of the epiphysis. In December 1979, he reported ongoing left knee pain, which was assessed as Osgood-Schlatter's disease. In July 1980, he reported having right knee pain since 1978, which affected both knees when running. In August 1980, he reported that he had hurt his right knee two years earlier while playing basketball. The knee was swollen with possible fluid. In October 1980, he was evaluated for knee pain, which was assessed as bilateral chondromalacia. He elected not to undergo a separation examination and, after a review of the medical records, a physician indicated that one was not required. After service, private treatment records show that in 1993, the Veteran tore his left patellar tendon, which was repaired, with good results. VA treatment records show complaints of right knee in May 1998. In September 1998, he complained of right knee pain that he felt was due to an injury he had sustained 20 years earlier. An October 1998 X-ray study revealed osteochondrosis of the tibial tubercle in the right knee with non-union of the tibial tubercle epiphysis. In June 1999, it was noted that he had arthritis in his knees, which he stated occasionally locked up on him and caused him to fall. In August 2000, he again complained of right knee pain. In April 2002, he was involved in a motor vehicle accident during which he was thrown into the back seat and suffered, among other things, abrasions to the knees. Social Security Administration records show that in 1987, he broke his left leg and knee cap. During an April 2010 VA examination, the Veteran reported that he fell from a telephone pole in service and sustained injuries to his neck, back, hips, and knees. X-rays of the lumbosacral spine were normal. X-rays of the right knee were normal and those of the left showed evidence of an internal fixation wire in the proximal tibia, but were otherwise normal. Following a physical examination, the examiner diagnosed the Veteran with a chronic strain of the lumbosacral spine, but no specific diagnosis related to the knees. The examiner opined that the Veteran's low back and bilateral knee conditions were not related to the fall from the telephone pole in service. The examiner opined that the Veteran was experiencing mild disability of the lower back and knees. The examiner based the opinion on a review of the Veteran's claims file, his history, physical examination, and X-ray review. As the Board found that the examiner did not provide a complete rationale for the opinion, the Board requested another examination. During an October 2011 VA examination, the Veteran reported that during service he fell from a truck while unloading it, was placed on physical profile for a few days, and was seen in sick call on occasion for medication but no other treatment. He also reported being involved in a severe motor vehicle accident in 2002 at which time he sustained another injury to his back. He reiterated his history of falling on his knees from a telephone pole during service. X-rays of the lumbosacral spine showed a normal lordotic curve with normal vertebral heights and disc spaces and a small anterior spur at L5. X-rays of the right knee were normal and those of the left showed evidence of anterior cruciate ligament repair but were otherwise normal. Following a physical examination, the examiner diagnosed the Veteran with a chronic strain of the lumbosacral spine, a mild strain of the right knee, and status post ligamentous repair of the left knee. The examiner stated that review of the claims file and current examination findings failed to show any evidence that the Veteran had Osgood-Schlatter's disease in either knee. The examiner then opined that there was inadequate documentation to relate the Veteran's current back and knee disabilities to service, including the fall from a telephone pole. The examiner also opined that the Veteran was experiencing mild disability from his low back and knee conditions and they were not caused by, resulted from, or permanently aggravated by service. The examiner further opined that the severe motor vehicle accident after service caused the conditions. Although the Veteran may have injured his back and both knees during service in a fall from a telephone pole, and other documented injuries, there is no objective evidence that he developed a chronic disability of the back or knees during service or within one year thereafter. His service medical records show that X-rays were negative and he was only diagnosed with a strain or sprain. As he elected not to undergo a separation examination, there are no findings at the time of his separation from service. However, a physician reviewed the Veteran's medical records and found that an examination was not required, which suggests that there were no significant medical problems prior to discharge. The Board notes the diagnoses of chondromalacia and Osgood-Schlatter's disease during service. However, those diagnoses were noted as being questionable and provisional and appear to have been carried forward in the record. There is also no evidence of either disease during current VA examinations or at any time during the appeal period. Thus, even if the Veteran had those disabilities during service, without a present disability, service connection is not warranted. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223 (1992). There are also no medical records documenting any complaints or diagnoses of a back or knee disability for several years after service. While not dispositive, the passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor that weighs against a claim for service connection. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Thus, the Board finds that the Veteran's current disabilities of the back and right and left knees did not have their onset during active service or within one year thereafter. The Board also finds that the Veteran's current disabilities of the back and right and left knees are not causally related to active service. A VA examiner has opined that the Veteran's disabilities are not related to active service, to include the fall from the telephone pole. Rather, the examiner opined that they are due to a post-service motor vehicle accident. As the opinions were based on examination of the Veteran and his documented medical history, the Board finds them to be great probative value. Hayes v. Brown, 5 Vet. App. 60 (1993); Wood v. Derwinski, 1 Vet. App. 190 (1992). The Board observes that the October 2011 opinions were provided by the same examiner who conducted the April 2010 examination and the opinions remained the same. The Board also notes that the examiner opined that the Veteran's hip disabilities were related to the fall from the telephone pole in service and those opinions formed the basis of the grant of service connection for the hip disabilities. Thus, the Board finds the examiner's opinions on the current disabilities to be of even greater probative value. Moreover, they are the only probative opinions of record and unfortunately they are against the claims. To the extent that the small anterior spur at L5 seen on X-ray represents arthritic change, there is no evidence that it developed within one year of discharge from service. Thus, service connection on a presumptive basis is also not warranted. With respect to the status post ruptured left patella tendon, that disability resulted from a post-service injury and is clearly attributable to an intercurrent cause. There is also no indication that it had its onset in or was etiologically related to service. The Board acknowledges the Veteran's assertion that he has had problems with his knees and back since active service. The Board notes that the Veteran is competent to give evidence about observable symptoms such as tinnitus and 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 the Veteran is claiming to have experienced continuous pain in the back and knees since active service, he is not found to be credible. Although there is no separation examination report documenting his condition at that time, there is no medical evidence of a back or knee disability after discharge until many years later. There is no medical evidence of a back disability until May 1998. There is no medical evidence of a left knee disability until February 1993 and none for the right knee until May 1998. If he had experienced back problems continuously since active service, it would be reasonable to expect that he would have filed a disability claim or sought treatment much sooner than in September 1997. Although he filed a disability claim in December 1986 with respect to the knees, he did not provide any objective evidence of a knee disability at that time. 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 probative medical evidence of record does not relate the current back and knee disabilities to active service and the Board finds that evidence is more persuasive than the lay contentions of relationship to service. In conclusion, service connection for a back disability, a right knee disability, and a left knee disability is not warranted. The Board finds that the preponderance of the evidence is against the claim and the claim must be denied. 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 back disability is denied. Service connection for a right knee disability is denied. Service connection for a left knee disability is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs