Citation Nr: 1324568 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 10-32 440 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. Entitlement to service connection for a lower back condition. 2. Entitlement to service connection for a bilateral knee condition. 3. Entitlement to service connection for a right hip condition. REPRESENTATION Appellant represented by: New Hampshire State Veterans Council WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran served on active duty from November 1955 to February 1958 and from March 1974 to December 1974, with additional service in the United States Army Reserve. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. This matter was remanded in September 2012 for further development. In April 2010, the Veteran testified before a Decision Review Officer. In February 2011, he testified before the undersigned at a Video Conference hearing. Transcripts of both hearings have been associated with the claims file. The issue of entitlement to adaptive housing has been raised by the record. Specifically, the Veteran submitted a December 2012 correspondence from a professor of neurology addressing this issue. As the claim has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. A chronic low back disability was not manifested during the Veteran's active duty service or for many years after service, nor is it otherwise related to service. 2. A chronic bilateral knee disability was not manifested during the Veteran's active duty service or for many years after service, nor is it otherwise related to service. 3. A chronic right hip disability was not manifested during the Veteran's active duty service or for many years after service, nor is it otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for an award of service connection for a low back disability have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. The criteria for an award of service connection for a bilateral knee disability have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 3. The criteria for an award of service connection for a right hip disability have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) - Duty to Notify As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent letters in March 2008 and April 2009 that provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Veterans Claims Assistance Act of 2000 (VCAA) - Duty to Assist 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. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. 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 treatment and examination. Moreover, his statements in support of the claim are of record, including testimony provided at a February 2011 Board hearing before the undersigned. 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 Veteran's claims. The Board notes that the service treatment records for the Veteran's second period of service (March 1974 to December 1974) consist only of an entrance examination and a Report of Medical History completed in conjunction with that examination. No other records (including a separation examination) have been located. The National Personnel Records Center (NPRC) certified that it has sent all of the Veteran's available service treatment records. Any additional service treatment records have been deemed unavailable. The Board recognizes that it has a heightened obligation to assist the Veteran in the development of his case, and to explain findings and conclusions, as well as carefully consider the benefit-of-the-doubt rule when records in the possession of the government are presumed to have been lost or destroyed. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The case law does not, however, 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. Russo v. Brown, 9 Vet. App. 46 (1996). The Board finds that, based on the RO's efforts and the responses from the service department, it is reasonably certain that the Veteran's service treatment records are unavailable and that further efforts to obtain them would be futile. 38 U.S.C.A. § 5103A(b)(3)). See also O'Hare, 1 Vet. App. at 367. Moreover, as is discussed below, the Board will concede that the Veteran sustained an injury in service as he described. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claims. 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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 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). At the Veteran's February 2011 videoconference hearing, he testified that he sustained injuries when he was made to push a jeep out of a drill hall. He stated that when he pushed it, he slipped and his knees hit the cement floor. He testified that he told the company clerk about the incident; and that the company commander told him to go home. He went home for two days; but every time he bent over, his back and hips would "kick in." He was not sent to a medical facility because it was too far away (40 miles). He got out of service in 1975 and he first sought treatment at a VA facility in Worcester, Massachusetts. He testified that he was in his late 60s at the time, and that all his treatment has been with the VA. He stated that he has not worked for 30 years. Somewhat confusingly, he then stated that since then he drove a bus for ten years. (It appears that the Veteran was attempting to convey that he had not engaged in consistent work in 30 years but in intermittently drove a bus in the following years.) He said he last drove a bus approximately seven years ago. He stated that he first sought treatment at the VA 2-3 years after the injury. He testified that his current doctor (K.H.) attributes his current disabilities to the in service injury. The Veteran submitted a July 2009 correspondence from nurse practitioner K.H., in which she stated that she has treated the Veteran since 2005 for multiple arthralgias consistent with osteoarthritis of the lower back, hip, and both knees. She stated that "It is entirely possible that a musculoskeletal injury incurred in the military could later result is osteoarthritis in the area of the injury." The Veteran also submitted lay statements dated October 2007 and November 2007 from two fellow soldiers (T.J.W. and G.E.H.). Both witnesses stated that they recalled the incident that the Veteran described at his hearing. They stated that he sustained injuries to his back, hips, and knees. G.E.H. estimated that the accident occurred in June 1975. Finally, the Veteran also testified at a Decision Review Officer hearing in April 2010. He testified that when he attempted to move a jeep, his feet went out from underneath him. He stated that he went up into the air, his hip hit the jeep, and his knees drove into the cement floor. He testified that he was instructed to go home for 2-3 days; but that he had work to be done, so he did it. This incident occurred a couple of years before he separated from active duty. He stated that he underwent a separation examination and that he noted difficulty with his back, hip, and knee cap. Following service, he did not seek treatment until approximately ten years before the hearing (which the Board notes would be approximately 2000). The service treatment records fail to reflect the injury alleged by the Veteran. Unfortunately, the only service treatment records from the Veteran's second period of service (March 1974 to December 1974) are the February 1974 entrance examination and Report of Medical History. The post service treatment records reflect that the Veteran did not seek treatment for decades after service. In February 2002, he reported that he hurt his back while pushing a car during service. He complained of tingling and numbness down his legs laterally on both sides. It became worse when he walked. He did not take any medications. He was assessed with longstanding low back pain without worsening of symptoms lately. It limited his ability to exercise. A nearly identical assessment in May 2002 reflects that the back pain was not limiting the Veteran's exercise. Treatment reports dated March 2004 and May 2006 reflect that the Veteran walked 1-2 miles or more per day. Outpatient treatment reports (written by nurse practitioner K.H.) dated April 2003, April 2007, and July 2007 reflect findings of "intermittent low back discomfort ? related to old military injury" and impressions of "low back pain and knee pain/possibly related to military." The April 2003 treatment report also stated that the Veteran denied joint stiffness, pain, swelling, back injuries, disc herniation or surgeries, limitations of movement, and chronic joint disease. Virtual VA records reflect that in February 2010, the Veteran reported that over the past 6 weeks, he had noticed that he needed to lift his right leg up with his hands to put it into the car. He was unable to lift his leg as he used to. He also felt some pain in the right hip and his low back pain that had been worsening over the past month. Virtual VA records reflect that the Veteran underwent x-rays of his hips in February 2010. The x-rays revealed minimal degenerative changes. Likewise, a March 2010 MRI of his lumbar spine revealed mild degenerative changes. Finally, June 2010 x-rays of the Veteran's knees revealed mild degenerative osteoarthritic changes. The Veteran underwent a neurology consultation in April 2010. He reported that ever since 1975, he has had chronic, constant, never-ending back pain, which he said was getting progressively worse. He also reported that he had difficulty elevating both legs, but primarily the right leg at the hip on account of weakness, for about the past three years. The examiner tried to verify this but that the complaint was not recorded until February 2010. He noted that all of K.H.'s progress reports indicate that the patient, previous to February 2010, denied any new weakness. In her February progress note, she documented that he had this complaint for the previous "six weeks." The examiner did note that bilateral hand weakness has been documented since 2008. When the Veteran bent forward, there was limited motion of the lumbar spine with limited reversal of the lordosis. There was no paraspinal muscle spasm or obvious tenderness. The examiner noted that the Veteran had a lumbosacral spine MRI in March 2010, which showed expected for age multilevel degenerative (ligament, disc, spine) changes but no central canal stenosis and no clear-cut nerve root compressions. The examiner diagnosed the Veteran with chronic low back pain, "unclear cause." He noted that the Veteran related it to trauma he sustained while on active duty in 1975. The examiner also diagnosed bilateral upper limb (distal) and lower limb (proximal) weakness, unknown cause. However, the examiner suspected inclusion body myositis. A May 2010 treatment report reflects that the Veteran was referred to the neuromuscular clinic for evaluation of upper and lower extremity weakness that has gotten progressively worse over the past 4-5 years. The Veteran underwent a VA examination in June 2010. The examiner reviewed the claims file in conjunction with the examination. The Veteran reported that his right hip, bilateral knee, and low back symptoms became worse over the past 4-5 years. He reported that he retired 10 years prior to the examination. He had difficulty going up and down stairs due to generalized weakness in his legs. He reported difficulty getting out of a chair due to soreness in his right hip. He also reported difficulty bending over or walking up hills due to low back pain. He was able to walk 2-3 miles. Following a thorough examination, the examiner opined that the Veteran's low back, bilateral knee, and right hip disabilities were less likely than not caused by the Veteran's in-service injury. The examiner noted that the Veteran's neurology reports of April 2010 and May 2010 indicated likely inclusion body myositis, which is usually manifested by weakness for approximately six years prior to diagnosis, as evidenced by the Veteran's history. The examiner acknowledged that the x-rays showed mild degenerative changes, but nonetheless found that his weakness and muscle atrophy was most likely caused by or a result of inclusion body myositis. A January 2011 outpatient treatment report reflects a diagnosis of inclusion body myositis. In September 2012, the Board found the June 2010 examination report to be inadequate because the examiner failed to acknowledge VA records dating from 2002 onward reflecting low back pain, in one case attributed to pushing a car in service. The examiner also did not discuss the opinion provided by the NP in April 2003. The Veteran underwent another VA examination in June 2013. The examiner reviewed the claims file in conjunction with the examination. She acknowledged the fact that the Veteran reported suffering a low back strain in 1975. She further noted that he did not seek medical attention for decades after the injury. She noted that he was found to have mild degenerative arthritis of the lumbar spine in 2007 and that this would be consistent with someone in their 60s. She also noted that the MRI findings are also consistent with someone in their 60s. She pointed out that there was no disk bulge, spurring, stenosis, or fracture. She noted that the Veteran worked until the age of 65. She opined that the Veteran's lumbar spine weakness, pain, and decreased range of motion are due to myositis affecting trunk and leg muscles; and that it is not due to his mild arthritis. She further opined that one isolated incident 25 years prior to the development of symptoms would not account for his mild degenerative arthritis of the lumbar spine. Likewise, the examiner noted that the degenerative changes in the Veteran's knees are what would be expected in someone 65 years of age and that it reflects normal age related changes. She noted that there was no evidence bone spurring, calcific tendonitis, or old patellar fracture. She noted that the Veteran has documented muscle atrophy of the leg muscles since 2010 and that the muscle condition is progressive. She opined that one fall in 1975 would not account for the Veteran's degenerative arthritis which has developed over 25 years and that it is less likely than not that the Veteran's knee disabilities are related to service. Finally, the examiner opined that the Veteran's right hip disability is less likely than not related to service. She once again noted that the mild degenerative changes are consistent with someone in their 60s. She noted that the outpatient treatment reports of April 2003, April 2007, July 2007, April 2009, and July 2009 reflect complaints attributed to mild, age-related degenerative arthritis. She also noted that the complaints could be related to the early stages of his inclusion body myositis which was definitively diagnosed in August 2010. She stated that it is not possible to give an accurate percentage of causality. However, the Board notes that in either case (myositis or age related arthritis), the examiner clearly opined that the cause was not his reported in-service injury. Analysis In order for the Board to grant service connection, the Veteran must show that (1) he suffers from a current disability, (2) that he sustained a disease or injury in service, and (3) that there is a causal nexus between the current disability and the disease or injury in service (in chronic disease claims this can be established by showing a continuity of symptomatology) In this case, there is no dispute that the Veteran has satisfied the first element. Specifically, he has current disabilities in the form of mild degenerative changes (arthritis) of the lumbar spine, bilateral knees, and right hip. Additionally, he has been diagnosed with body inclusion myositis. Regarding the second element of service connection, the Board notes that there is no medical evidence that the Veteran sustained injuries to his low back, knees, and right hip during service. Additionally, the estimated date of the alleged incident (June 1975) falls outside the Veteran's active duty service. However, given the Veteran's relatively consistent testimony regarding the incident and the fact that it has been substantiated by two lay witnesses, the Board affords him the benefit of the doubt on this point. Consequently, the Board finds that the Veteran has met the second element of his service connection claims. For the following reasons, the Board finds that the Veteran's claims for service connection fail to fulfill the third element. Inasmuch as the Veteran admits to a being injured as a result of a single isolated incident, with no ongoing treatment during service, chronicity in service has not been established. However, service connection may be established by continuity of symptomatology under 38 C.F.R. § 3.303(b) or based on initial diagnosis after service under 38 C.F.R. § 3.303(d). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In support of his claim for service connection the Veteran states that he has had back pain, knee pain, and hip pain since service, and he is competent to describe symptoms of pain. 38 C.F.R. § 3.159 (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness). At the outset, the Board notes the gap of approximately 25 years between the Veteran's separation from service and the first documented treatment for a back, knee, and hip disability. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim). However, such absence of documented treatment, in and of itself, is not a basis for discrediting his lay statements of continuity. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Thus, the Board must consider the totality of the record, and not just the absence of clinical treatment, in weighing the Veteran's statements asserting continuity of symptomatology. In this case, the Veteran's assertions are somewhat inconsistent. At his February 2011 Board hearing, he testified that he sought treatment 2-3 years after the in-service incident. However, at his April 2010 Decision Review Officer hearing, he testified that he first sought treatment ten years prior to the hearing (which would have been approximately 2000). At times, including at his Board hearing, he testified that pain has been continuous since service. However, in his March 2008 claim, he stated that his right hip disability began in June 2008. An April 2003 outpatient treatment report (written by nurse practitioner K.H.) reflects that the Veteran denied joint stiffness, pain, swelling, back injuries, disc herniations or surgeries, limitations of movement, and chronic joint disease. Treatment reports as recent as March 2004 and May 2006 reflect that he was walking 1-2 mile or more per day. At his June 2010 VA examination, he reported being able to walk 2-3 miles. Outpatient treatment reports as recent as April 2003, April 2007, and July 2007 reflect findings of "intermittent" low back "discomfort." Thus, the treatment records do not appear to demonstrate any type of chronic disability dating back to service. Again, the absence of any mention of symptoms earlier than 2002 strongly weighs against a finding of continuity. For the above reasons continuity of symptomatology is not demonstrated here, either by the clinical record or by the Veteran's own statements. As noted above, service connection is not warranted in this case on the basis of continuity of symptomatology. However, if the competent medical evidence indicates that the current low back disability, bilateral knee disability, and/or right hip disability is related to the Veteran's active service, then an award of service connection would be appropriate. In this vein, VA examiners in June 2010 and June 2013 concluded that the Veteran's disabilities were less likely than not related to service. Both examiners noted that the Veteran did not seek treatment for 25 years after service. Additionally, the June 2010 examiner noted that symptoms (including weakness) of inclusion body myositis usually occur approximately six years prior to diagnosis, and that the Veteran's reported symptoms are likely due to his inclusion body myositis. Likewise, the June 2013 examiner noted that the mild arthritis from which the Veteran suffers is consistent with someone in their 60s. Moreover, in the absence of any disk bulge, bone spurring, stenosis, calcific tendonitis, or fracture, fracture, the degenerative arthritis was unlikely to have been caused by a single isolated incident 25 years earlier. The Board finds the opinion of the VA physicians to be persuasive evidence. Indeed, they were based on a review of the record and were offered following physical evaluations of the Veteran, and were accompanied by clear rationales. Moreover, no other competent evidence of record refutes that opinion. The Board acknowledges the Veteran's contention that nurse practitioner K.H. believes that the disabilities are related to service. However, her treatment reports merely indicate that such a nexus might be possible. Her June 2009 correspondence specifically states that "It is entirely possible that a musculoskeletal injury incurred in the military could later result is osteoarthritis in the area of the injury." [Emphasis added]. The treatment records and correspondence of nurse practitioner K.H. only indicate that a causal relationship is possible and that the disabilities may or may not be related to service. The Board is not permitted to rely on a speculative nexus opinion to grant benefits. See 38 C.F.R. § 3.102 (distinguishing reasonable doubt from pure speculation or remote possibility); Slater v. Principi, 4 Vet. App. 43, 44 (1993) (upholding Board's rejection of a medical nexus opinion that was based on speculation). The Veteran himself believes that his current low back, bilateral knee, and right hip disabilities are related to service. However, while he is competent to describe symptoms of pain, he has not demonstrated the expertise generally required to opine on causation. Indeed, in this case, the question of etiology extends beyond an immediately observable cause-and-effect relationship, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau)). Here, degenerative disease of the lumbar spine, bilateral knees, and right hip is not a simple medical condition that the Veteran can identify based on mere personal observation, that is, by visual observation or by any other of the senses. In sum, his statements as to etiology in this case are not competent and therefore lack probative value. As the preponderance of the evidence is against these claims under the applicable the theories of service connection under 38 C.F.R. § 3.303(b) and (d), the benefit of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). With respect to the question of entitlement to service connection on a presumptive basis, while there is medical evidence in this case of degenerative disease of the lumbar spine, bilateral knees, and right hip, there is no competent medical evidence of arthritis within one year of the Veteran's separation from active duty service, as required for service connection under 38 C.F.R. § 3.307(a), so service connection under the presumptive provisions of 38 C.F.R. §§ 3.307 and 3.309 is not warranted, and the benefit of-the-doubt standard of proof does not apply. 38U.S.C.A. § 5107(b). ORDER Entitlement to service connection for a low back disability is denied. Entitlement to service connection for a bilateral knee disability is denied. Entitlement to service connection for a right hip disability is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs