Citation Nr: 1325334 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 09-35 765 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for a right knee disorder. 3. Entitlement to service connection for a left knee disorder. 4. Entitlement to service connection for a neurologic disorder of the lower extremities, claimed as peripheral neuropathy. 5. Entitlement to service connection for a neurologic disorder of the right lower extremity, claimed as sciatic neuritis. REPRESENTATION Appellant represented by: Arkansas Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran served on active duty from September 1975 to September 1979. This matter has come before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the North Little Rock, Arkansas, Department of Veterans Affairs (VA) Regional Office (RO). In August 2010, the Veteran testified before the undersigned Veterans Law Judge (VLJ) sitting at the RO. A transcript of the hearing is associated with the claims file. In December 2011, the Board remanded the claim for further development. After reviewing the record, the Board finds that still-additional development of the record is warranted with respect to the issues of entitlement to service connection for a neurologic disorder of the lower extremities, claimed as peripheral neuropathy and entitlement to service connection for a neurologic disorder of the right lower extremity, claimed as sciatic neuritis. Accordingly, those issues are addressed in the REMAND portion of the decision below. FINDINGS OF FACT 1. A low back disorder, primarily diagnosed as degenerative disc disease, was first manifested six weeks after service and is related thereto. 2. A chronic, identifiable right knee disorder, diagnosed primarily as knee strain, was first manifested many years after service, and the preponderance of the competent evidence of record is against a finding that it is in any way related thereto. 3. A chronic, identifiable left knee disorder, diagnosed primarily as knee strain, was first manifested many years after service, and the preponderance of the competent evidence of record is against a finding that it is in any way related thereto. CONCLUSIONS OF LAW 1. A low back disorder is the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107(b) (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 2. A right knee disorder is not the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1131, 5103, 5103A (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 3.303 (2012). 3. A left knee disorder is not the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1131, 5103, 5103A (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist Prior to consideration of the merits of the Veteran's appeal, the Board must determine whether VA has met its statutory duty to assist him in the development of the issues of entitlement to service connection for a low back disorder and for a bilateral knee disorder. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. After reviewing the record, the Board finds that VA has met that duty. In July 2008, VA received the Veteran's claims, and there is no issue as to providing an appropriate application form or completeness of the application for service connection or for an increased rating. Following the receipt of that application, VA notified the Veteran of the information and evidence necessary to substantiate and complete his claims, including the evidence to be provided by him and notice of the evidence VA would attempt to obtain. VA informed him of the criteria for service connection, as well as that for rating service-connected disabilities and for assigning effective dates, should service connection be granted. Following the notice to the Veteran, VA fulfilled its duty to assist him in obtaining identified and available evidence necessary to substantiate his claim. VA obtained or ensured the presence of the Veteran's service treatment records; records reflecting his VA treatment from October 1979 to January 1980, in January and February 1988, and from May 2008 to January 2013; the report of an December 2008 MRI, performed at the Northwest Medical Center of Benton County; a January 2010 letter from the Veteran's sister; the transcript of the Veteran's August 2010 hearing before the undersigned Veterans Law Judge; the Veteran's Social Security records; and several medical articles concerning the weight carried by Marines in service and back disorders. The hearing transcript shows the VLJ conducted the proceeding in accordance with the mandates of 38 C.F.R. § 3.103(c)(2) insofar as 1) explaining fully the issue and 2) suggesting the submission of evidence that the claimant may have overlooked and that would be advantageous to his position. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). Specifically, the transcript of the hearing shows the VLJ identified the material issues, clarified the Veteran's various theories of the case, ensured that the evidence cited by the Veteran had been or would be associated with the record, asked whether the Veteran would be willing to report for an additional VA examination, and ensured that the Veteran had given all relevant testimony. As such, the conduct of the hearing was performed in accordance with the provisions of 38 C.F.R. § 3.103(c)(2) (2012). Therefore, there was no prejudice to the Veteran's claim as a result of the conduct of that hearing. See Bryant, 23 Vet. App. at 498 (citing to 38 U.S.C. § 7261(b)(2); Shinseki v. Sanders, 129 S. Ct. 1696, 1704 (2009)). In January 2012, VA examined the Veteran to determine the nature and etiology of any knee or low back disorder found to be present. In July and August 2012, following a review of the claims folder, The VA examination report shows that the examiner reviewed the Veteran's medical history, interviewed and examined the Veteran, documented his medical conditions, and rendered diagnoses and opinions consistent with the remainder of the evidence of record. Therefore, the Board concludes that the January 2012 VA examination is adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2009); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). In sum, the Veteran has been afforded a meaningful opportunity to participate in the development of his appeal. He has not identified any outstanding evidence which could support his claim; and there is no evidence of any VA error in notifying or assisting the Veteran that could result in prejudice to him or that could otherwise affect the essential fairness of the adjudication. Accordingly, the Board will proceed to the merits of the appeal. The Merits of the Appeal Service connection connotes many factors but basically it means that the facts, shown by evidence, 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. § 1131. Generally, the evidence must show (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. See Cuevas v. Principi, 3 Vet. App. 542 (1992). 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, as distinguished from merely isolated findings or a diagnosis including the word chronic. For example, this rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clear-cut clinical entity, at some later date. When the disease identity is established, there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. The foregoing law and regulations notwithstanding, service connection may 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). The Board acknowledges the Veteran is competent to give testimony about what he experienced during and since the conclusion of his service. For example, he is competent to report that he had chronic back and knee pain in and since service. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). In certain instances, lay evidence can be competent and sufficient to establish a diagnosis of a condition. King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (the Federal Circuit Court discussing 38 U.S.C.A. § 5107(b), 38 C.F.R. § 3.307(b), and its prior holdings in Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007); and Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009)). Such cases may occur under the following circumstances: (1) when a layperson is competent to identify the medical condition, (2) when a layperson is reporting a contemporaneous medical diagnosis, or (3) when a lay person describes symptoms which are subsequently diagnosed by a medical professional. Jandreau. Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. See Rucker v. Brown, 10 Vet. App. 67 (1997). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan, supra. In deciding this appeal, the Board must weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999); Evans v. West, 12 Vet. App. 22 (1998). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings. The probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). In this regard, contemporaneous evidence has greater probative weight than a history reported by the Veteran. Curry v. Brown, 7 Vet. App. 59 (1994). The Back The Veteran's service treatment records are negative for complaint or finding regarding the low back; however, in October 1979, approximately six weeks after his separation from service, a pre-employment examination for Safeway reportedly showed a spinal disorder. X-rays performed by VA revealed multiple abnormalities, including a spina bifida occulta defect at the first sacral segment; pars interarticularis defect at L5-S1; vertical disc space narrowing at L3-L4; Schomorl's node formation involving the lower thoracic and upper lumbar regions; and a pars defect at L4-L5. During an April 2009 consultation with the VA Neurology Service, the consultant suspected that the 1979 Safeway records showed spondylolisthesis at L4-L5 and L5-S1. He opined that the Veteran's back disorder could well-be service-related , particularly the pars defect at L4-L5, because that defect was usually the result of a fracture that did not heal. The consultant noted that the Veteran could have sustained a spinal stress fracture in service, as a result of all the heavy equipment he had to carry. In June 2009, a VA physician with the Neurosurgery Service opined that the Veteran's current condition was the result of his disability incurred in the military. In July and August 2012, a VA physician's assistant opined, that due to the lack of a significant injury in service, it was less likely than not that the Veteran's low back pain was related to service. Rather, VA physician's assistant believed that the Veteran complaints were primarily related to the aging process, weight, and the Veteran's post-military vocation. In October 2012, a VA physician opined that the Veteran's claimed thoracolumbar spine condition, diagnosed as grade I spondylolisthesis in L4-L5 with pars defect, was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. The VA physician noted the onset of the Veteran's symptoms prior to his separation from service with X-rays documenting the progress of his lumbosacral spine abnormalities since his discharge. In particular, VA physician noted the degenerative joint disease and degenerative disc disease present in the lumbosacral spine X-ray of October 1979. In reviewing the foregoing records and reports, the Board notes a substantial body of evidence in support of the Veteran's claim. Indeed, the combination of the Veteran's strenuous duties in service; the diagnosis of a low back disorder almost immediately after service; the letter from the Veteran's sister that the Veteran did not injure his back during the six months after service; the Veteran's report of chronic back pain since service; and the positive opinions from VA health care providers and examiners in April and June 2009 and October 2012 lead the Board to agree that it is at least as likely as not that the Veteran's current low back disorder is the result of service. At the very least, there is an approximate balance of evidence both for and against the Veteran's claim. Under such circumstances, all reasonable doubt is resolved in favor of the Veteran, and the claim will be decided on that basis. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection for a low back disorder, diagnosed primarily as degenerative disc disease, is warranted. To that extent, the appeal is allowed and constitutes a full grant of benefits with respect to that issue. The Knees With respect to the Veteran's claim for service connection for his knees, the Board notes that at the time of the Veteran's August 1975 service entrance examination, the Veteran denied that he then had, or had ever had, a trick or locked knee, and his lower extremities were found to be normal. Therefore, his knees were presumed to be in sound physical condition at the time he entered service. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2012). In service, in December 1976, the Veteran was treated for complaints of bilateral knee pain. It was noted that he had injured his knees while running and that he had twisted his left knee, when he stepped on a rock in a stream. The diagnoses included bilateral chondromalacia of the patella and a possible torn cartilage of the left knee or a lack of fluid to lubricate the knee. However, the presence of a torn left knee cartilage or a lack of fluid to lubricate the knee was not confirmed at the time, and has not been confirmed since. Despite the diagnosis of chondromalacia, the Veteran served the remaining three years and nine months of service without any complaints or clinical findings of a knee disorder of any kind. Moreover, during his August 1979 service separation examination, his lower extremities were found to be normal. Such findings suggest that the Veteran's chondromalacia of the patellae in December 1976 was acute and transitory and resolved without residual disability. The Veteran states that despite the foregoing evidence, he was having chronic knee pain in service. Had that been the case after 1976, it is reasonable to expect that he would have sought treatment. After all, he had sought treatment for various other disorders, including a cold, possible tendonitis of the Achilles, a sprained right ankle, a left thumb disorder, and a bruised arch. That he did not do so with respect to either knee weighs against his claim. Such a conclusion is buttressed by the fact that he registered no further complaints of a knee disorder until May 2008, almost 30 years after his separation from service. Despite his complaints of knee pain and weakness, X-rays of both knees were normal, and the diagnoses were myalgia and bilateral leg sciatica. Such a lengthy time frame without any clinical evidence to support the assertion of a continuity of symptomatology does not provide support for the Veteran's contentions that he experienced continuous knee problems since his separation from service. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming the Board where it found that Veteran failed to account for the lengthy time period after service for which there was no clinical documentation of the claimed condition). Nevertheless, the Veteran's reports of continuing symptomatology since service have been sufficient to trigger the need for multiple VA examinations to determine the nature and etiology of any disorder found to be present. McLendon v Nicholson, 20 Vet. App. 79 (2006). In September 2008, July 2009, and January 2012, VA examined the Veteran's knees. Although the September 2008 and July 2009 examinations were found inadequate for rating purposes, X-rays of the knees were consistently normal, and following each examination, the diagnosis was bilateral knee strain. Moreover, in addenda, dated in July and August 2012, a VA examiner reviewed the claims file and opined that it was less likely than not that such disorder was related to the Veteran's period of military service. The Veteran contends that the VA examiner's conclusion is flawed, because the examiner found that the knee problems in service were attributable solely to stress caused by running. The Veteran emphasizes that the VA examiner failed to account for his left knee injury in service. While the Veteran is correct that the VA examiner did not report that the Veteran had twisted his left knee in December 1976, the Board notes that the examiner recognized the Veteran's strenuous duty and knee problems in service. The salient question is whether those problems resulted in chronic disability. 38 C.F.R. § 3.303(a). In this case, the preponderance of the evidence shows that they did not. No single factor is determinative in resolving the Veteran's appeal. Rather, it is the totality of the evidence which determines the outcome. In this case, the lack of a chronic, identifiable disability in either knee in service; the lack of any competent, objective evidence of such a disability for many years after service; and the lack of any competent, objective evidence of a nexus between the Veteran's current bilateral knee strain constitute a preponderance of the evidence and militate strongly against the Veteran's claim. The only evidence to the contrary is the Veteran's unsubstantiated contentions. Therefore, the Board concludes that the Veteran does not meet the criteria for service connection for a disorder in either knee. Accordingly, service connection is not warranted, and the appeal is denied. In arriving at this decision, the Board has considered the doctrine of reasonable doubt. However, that doctrine is only invoked where there is an approximate balance of evidence which neither proves nor disproves the claim. In this case, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a bilateral knee disorder. Therefore, the doctrine of reasonable doubt is not applicable. 38 U.S.C.A. § 5107(b) ; 38 C.F.R. § 3.102. ORDER Entitlement to service connection for a low back disorder, diagnosed primarily as degenerative joint disease, is granted. Entitlement to service connection for a right knee disorder is denied. Entitlement to service connection for a left knee disorder is denied. REMAND Given that service connection has been granted for a low back disability, VA must reevaluate the claims for service connection for neurological disorders of the right and left leg. The Veteran contends that they are attributable to the now service-connected low back disability. The Veteran is advised that it is his responsibility to report for the examination and to cooperate in the development of his claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655 (2012). Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for a VA neurologic examination to determine the nature an etiology of any neurologic disorder found to be present in his lower extremities. All indicated tests and studies must be performed, and any indicated consultations must be scheduled. The claims folder and a copy of this remand, must be made available to the examiner for review in conjunction with the examination, and the examiner must acknowledge receipt and review of these materials in any report generated as a result of this remand. If a neurologic disorder(s) of the lower extremities is diagnosed, the examiner must identify and explain the elements supporting the diagnosis(es). The examiner must also render an opinion as to whether it is at least as likely as not (at least a 50/50 chance) that the Veteran's neurologic disorder is proximately due to or has been aggravated by his service-connected low back disorder. In so doing, the examiner must state how and why he or she reached the opinion they did. In determining whether the service-connected low back disorder has aggravated any nonservice-connected neurologic disorder of the lower extremities, the evidence must show that there has been an increase in the severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. 38 C.F.R. § 3.310(b) (2012). In the event that the Veteran does not report for the aforementioned examination, a copy of the notice informing him of the date, time, and location of the examination must be associated with the claims folder. If the notice is returned by the Post Office as undeliverable, that fact must be noted in writing an associated with the claims folder. 2. When the actions requested in part 1 have been completed, undertake any other indicated development. Then readjudicate the issues of entitlement to service connection for a neurologic disorder of the lower extremities, claimed as peripheral neuropathy and entitlement to service connection for sciatic neuritis of the right lower extremity. If the benefits sought on appeal are not granted to the Veteran's satisfaction, he and his representative must be furnished a Supplemental Statement of the Case and afforded an opportunity to respond. Thereafter, if in order, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to the final disposition of any unresolved issue. The Veteran need take no action unless he is notified to do so. However, he is advised that he has the right to submit any additional evidence and/or argument on the matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369, 372-73 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs