Citation Nr: 1325465 Decision Date: 08/12/13 Archive Date: 08/16/13 DOCKET NO. 08-34 204 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for a cervical spine disability. 3. Entitlement to service connection for bilateral hip disability, to include degenerative joint disease. 4. Entitlement to service connection for bilateral knee disorder to include degenerative joint disease. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Barner, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1968 to September 1969, with an additional verified period of active duty for training from August 17 to August 24, 1964. This case comes before the Board of Veterans' Appeals (Board) on appeal of a May 2008 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran was afforded a Travel Board hearing in May 2011, and a transcript is associated with the claims folder. This appeal was previously before the Board in November 2011, at which time it was remanded in order to afford the Veteran a VA examination. The Veteran was afforded a VA examination in December 2012. Given the foregoing, the Board finds that VA has substantially complied with the prior remand with regard to this appeal. Dyment v. West, 13 Vet. App. 141, 146-47 (1999). FINDINGS OF FACT 1. A low back disability was not present in service, nor was lumbar arthritis compensably disabling within a year of separation from active service, nor is it the result of any incident or incidents of the Veteran's periods of active military service. 2. A cervical spine disability was not shown to have been present in service, nor was cervical arthritis to compensably disabling within a year of separation from active service, nor is it the result of any incident or incidents of the Veteran's periods of active military service. 3. A bilateral hip disability was not shown to have been present in service, nor was hip arthritis compensably disabling within a year of separation from active service, nor is it the result of any incident or incidents of the Veteran's periods of active military service. 4. A bilateral knee disability was not shown to have been present in service, nor was knee arthritis compensably disabling within a year of separation from active service, nor is it the result of any incident or incidents of the Veteran's periods of active military service. CONCLUSIONS OF LAW 1. A low back disability was not incurred or aggravated inservice, and lumbar arthritis may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). 2. A cervical disability was not incurred or aggravated inservice, and cervical arthritis may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107; 38C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 3. A bilateral hip disability was not incurred or aggravated inservice, and arthritis of the hips may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 ; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 4. A bilateral knee disability was not incurred or aggravated inservice, and arthritis of the knees may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has made all required efforts to assist the Veteran in the development of his claims, has notified him of the information and evidence necessary to substantiate the claims, and has fully disclosed VA's duties to assist him. In July 2007, the Veteran was notified of the information and evidence needed to substantiate and complete the claims on appeal, and provided notice how effective dates and initial ratings are assigned. VA has complied with the duty to assist by aiding the appellant in obtaining evidence. It appears that all known and available records relevant to the issues on appeal have been obtained and are associated with the Veteran's files. The Veteran was afforded VA medical examinations on several occasions, most recently in December 2012. The VA examination reports contain sufficiently specific clinical findings and informed discussion of the pertinent history and clinical features of the disabilities on appeal and is adequate for purposes of this appeal. The Board is not aware, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received. Based on the foregoing, the Veteran has not been prejudiced by any failure of VA in its duties to notify and assist him, and that any such violations could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of his claims at this time is warranted. Service connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, including arthritis, may be also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from active duty. 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). The term "active military service" includes active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). Active duty for training is, generally, full-time duty in the Armed Forces performed by reserves for training purposes. 38 C.F.R. § 3.6(c)(1) . Service connection for a person on inactive duty for training is permitted only for injuries, not diseases, incurred or aggravated in line of duty. See Brooks v. Brown, 5 Vet. App. 484, 485 (1993). VA's General Counsel has held that it was the intention of Congress when it defined active service in 38 U.S.C.A. § 101(24) to exclude inactive duty training during which a member was disabled or died due to nontraumatic incurrence or aggravation of a disease process. VAOPGCPREC 86-90 (Jul. 18, 1990). The Veteran served as a combat engineer, but he was not awarded any badge or decoration for combat service. The Board observes, however, that with respect to combat veterans, pursuant to 38 U.S.C.A. § 1154(b): [VA] shall accept as sufficient proof of service-connection . . . satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions and hardships of such service . . . . Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. In Collette v. Brown, 82 F.3d 389, 392-93 (Fed. Cir. 1996), the United States Court of Appeals for the Federal Circuit articulated a three-step sequential analysis to be reviewed when a combat veteran seeks benefits under the method of proof provided by 38 U.S.C.A. § 1154(b). Initially, VA must determine whether the veteran has proffered "satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease." If a veteran produces credible evidence that would allow a reasonable fact-finder to conclude that the alleged injury or disease was incurred in service, then the veteran has produced "satisfactory evidence" to satisfy the first step under the statute. This determination requires the credibility of the veteran's evidence to be judged standing alone and not weighed against contrary evidence the Board acknowledges that the appellant is a combat veteran. In determining whether documents submitted by a veteran constitute "satisfactory" evidence under 38 U.S.C.A. § 1154(b), VA may properly consider "internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the veteran." Caluza v. Brown, 7 Vet. App. 498, 510-11 (1995). The second step under Collette requires VA to determine if the proffered evidence is "consistent with the circumstances, conditions, or hardships of such service," again without weighing the veteran's evidence with contrary evidence. Collette, 82 F.3d at 392- 93. If these two inquiries are met, VA "shall accept" the veteran's evidence as sufficient proof of service connection, even if no official record of such incurrence exists. At this point, a factual presumption arises that the alleged injury or disease is service-connected. Id. It is under the third Collette step under that VA is to weigh evidence contrary to that which established the presumption of service connection. If VA meets its burden of presenting clear and convincing evidence to the contrary, the presumption of service connection is rebutted. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). In June 2007 the Veteran argued that he was entitled to service connection for his low back, cervical spine, bilateral hip, and bilateral knee disabilities. He later indicated that he had been in an accident in Vietnam in 1969 wherein a cement mixer rolled over his body, causing him to be hospitalized for several days and treated for bruising with various pain medications. Service treatment and personnel records do not contain hospital records related to such claimed incident. Specifically, they do not reveal complaints, findings, or diagnoses of either a cervical, lumbar, hip or knee disorder. A September 1969 separation examination indicated that the Veteran's spine and lower extremities were normal, and the appellant did not report otherwise in his medical history form. In March 1995 the Veteran underwent a total laminectomy from C7-T1-2 with removal of mass lesion or extradural tumor, C7-T1. In August 1995 an ultrasound of the neck gave impression of anechoic lesion localized in the right side above the thyroid gland, suggestive of thyroglossal duct cyst. A May 1999 cervical MRI gave an impression of severely exaggerated cervical spine curve, and no abnormal enhancement. A January 2003 lumbar X-ray showed hypertrophic lipping and spurring; straightening of the normal lordotic curve, with dextroscoliosis suggestive of muscle spasm; degenerative disc disease throughout the lumbar spine, with mild to moderate narrowing of the disc spaces; and, degenerative changes in facet joints. An August 2003 cervical MRI gave an impression of marked curvature exaggeration of the cervical curve and some apparent basilar invagination. A March 2007 MRI of the cervical spine gave an impression of bilateral laminectomies from C6 to T7; widening of the right neural foramen at the C7-T1 level that may be related to prior surgery. There was no recurrent mass, evidence of cord impingement, or intrinsic cervical cord abnormalities. March 2007 MRI of the lumbar spine gave impression of dextroscoliosis of the mid lumbar spine; left foraminal stenosis at L3-L4; diffuse facet joint degenerative changes; and degenerative disc disease with vacuum phenomenon at L3-L4. An April 2007 Social Security disability determination considered the Veteran's cervical spondylosis, upper back discomfort status-post cervical laminectomy, and mild diffuse lumbar disk illness associated with anterolateral marginal osteophytes. June 2007 VA treatment notes show the Veteran reported experiencing chronic neck and back pain, and having had spinal surgery. VA treatment notes show the Veteran continued to describe experiencing constant upper and lower back pain with radiation of pain and numbness to his legs in 2008. He also described receiving pain management therapy, to include in his hips. In 2008 the Veteran reported experiencing hip and back pain. Strength in the lower extremities was limited in the knee, as well as in the hip with pain in the back. The Veteran was afforded a hearing before a Decision Review Officer in June 2009. He indicated that when he was in Vietnam, in approximately 1968 or 1969, he was run over by a cement mixer. He reported that he was unable to move his legs after the incident, and carried to the dispensary, from where he was airlifted to a U.S. Army Hospital and treated for three days. The Veteran thought that the hospital was in Pleiku or Can Tho. The Veteran indicated that from this incident he was twisted and bruised, causing his current knee and hip disabilities. He also reported that he was kept flat on his back in the hospital and given medications for his back injury. A February 2011 VA treatment note indicated that the Veteran twisted his knee a month earlier while walking, and it had given out on him and was otherwise weak. It was also indicated that he experienced hip and back pain. In May 2011 the Veteran testified before the Board, and stated that he was run over by a concrete mixer, and sent to the hospital for his injuries. He contended that this incident happened while he was in combat between "Tintuc" and Dak To. The Veteran reported that he went to a private doctor following separation from service, and was treated with straps on his ankles to his hips, and the middle of his back. May 2011 treatment notes show that the Veteran reported back, neck, hip and knee pain resulting from the concrete mixer accident and injuries while in Vietnam in 1968. The assessment indicated that such pain could have resulted from his 1968 accident while in service. A June 2011 independent medical examination reviewed some of the Veteran's X-rays and MRIs, and his reported history of the 1968 concrete mixer accident. Following examination, Ramon Ortiz, M.D., opined that the Veteran suffered injuries as a direct result of his 1968 accident in Vietnam, and that the present severe physical limitations could be a direct result of his injuries. Following May 2011 lumbar and cervical spine X-rays, and June 2011 MRI, the assessment was of lumbar scoliosis, probably congenital, lumbar spondylosis, chronic lumbar pain secondary to the above, and status-post old cervical surgery for reported tumor. The Veteran was afforded a December 2011 VA examination. It was indicated that the Veteran had degenerative joint disease of the hips, diagnosed between 1990 and 1995. The Veteran gave a very detailed account of his in-service accident with the concrete roller contending that it ran over him in the area between his shoulders to his knees. He reported that X-rays of the hips and knees were negative for fracture, and that he was returned to his unit where he was restricted to quarters for five days. He reported that his right knee remained black and swollen for another week once he returned to light duty. He did not recall trauma to his hips in service. Following examination, the diagnoses were degenerative or traumatic arthritis of the hips was not documented, degenerative joint disease of the right knee (2011), and left knee pain and swelling. In addition to the history discussed above, the Veteran reported that following his return to light duty he experienced intermittent right knee pain, for which he was treated by a private physician. Right and left knee flexion was limited, and there was some instability. It was indicated that degenerative or traumatic arthritis of the knees was documented by imaging. Regarding his back, review of the record showed diagnosis of degenerative joint disease of the thoracolumbar spine, diagnosed in 2003, to include with herniated nucleus pulposus. The Veteran's reported history regarding the concrete mixer incident was the same as previously discussed. The Veteran reported that he was treated for back pain by a private physician a few years after his separation from service. Range of motion testing revealed limited forward and lateral flexion and extension. Knee reflexes were hypoactive, and ankle reflexes were absent. The Veteran had intervertebral disc syndrome of the thoracolumbar spine. The examiner opined that the Veteran's hip condition was less likely than not incurred in or caused by the claimed in-service injury. He observed that all X-rays including those taken while the Veteran was in the Army Reserves were negative for pathology of the hips. He also found no evidence of hip pain, and found no documentation of trauma from the claimed concrete mixer incident. The examiner also opined that the Veteran's knee disorders were less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner found no documentation of the trauma from the concrete mixer in the service medical records. He opined that although the right knee showed mild degenerative joint disease in the X-rays from 2011, this was most likely from normal wear and tear to the joints in this aged-population. The examiner opined that the Veteran's back condition was at least as likely as not incurred in or caused by the claimed in-service injury, event or illness. The examiner reasoned that a 2003 lumbar spine X-ray revealed both lumbar degenerative joint and disc disease such that the condition existed during service. In September 2012 the RO deferred a rating, requesting the examiner also conduct a cervical spine examination, and notifying the examiner that the Veteran's service period did not include 2003. In December 2012 the Veteran was afforded a new VA examination wherein his previous diagnoses for the thoracolumbar spine were reviewed. The Veteran reported that he had injured his back, right knee and right hip in a concrete mixer incident, that he had experienced pain since, that he underwent back surgery in 1995, and that he had difficulty walking due to his right hip and knee disorders. Testing was performed and diagnostic imaging reviewed. A June 2011 MRI of the thoracolumbar spine revealed multiple lumbar disorders. Regarding the Veteran's cervical spine, it was indicated that in 1995 the Veteran had been diagnosed as having a neck sprain. The Veteran reported a history of decreased cervical motion and a stiff neck for 26 years. It was indicated that cervical arthritis had not been documented, and May 2011 imaging revealed no acute fracture or dislocation, and no cervical degenerative changes. Regarding his hips, the Veteran's 1995 diagnosis of hip strain was reviewed. Review of diagnostic imaging did not reveal degenerative or traumatic arthritis. Regarding his knees, the 1995 diagnosis of knee sprain was reviewed, and the Veteran again discussed the concrete mixer incident, and a 26 year history of symptoms. Review of diagnostic testing showed right knee degenerative or traumatic arthritis. The examiner opined that it was less likely than not that the claimed disorders were incurred in or caused by the claimed in-service injury, event or illness. Specifically, following a review of the claims folder and examination of the appellant the examiner reasoned that it was unlikely the Veteran's chronic hip, knee, and neck disorders, as well as upper and or lower spine disorders had their origin during or were the result of service given that there was no documentation of an injury from 1968-69, and the Veteran served for an additional 20 years in the National Guard. In sum, the Veteran contended he was "run over" by a portable cement mixer in Vietnam, in 1968, and that he has bilateral hip and knee, as well as chronic upper and lower back disabilities as a result. He maintains that he has experienced with his back, knees and hips since service. The earliest clinical indication of chronic pathology of the cervical spine is revealed by private medical records dated in 1995, at which time the Veteran underwent a total cervical laminectomy. In like manner, the earliest clinical indication of chronic lumbar spine pathology is revealed by private radiographic studies dated in 2003, at which time lumbar degenerative disc/joint disease was diagnosed. Arthritis of the knees was first clinically demonstrated no earlier than February 2011, many years following the Veteran's discharge from service. In May 2011, a VA physician indicated that the Veteran's back, neck, hip, and knee pain could be related to his in-service injury in 1968. However, that statement appears to have been based on history provided by the appellant, without access to his claims folder. Moreover, while in a statement of June 2011, the Veteran's private physician was similarly of the opinion that the appellant's current disabilities might be the result of his 1968 accident in Vietnam, that opinion was, likewise apparently offered without access to the Veteran's claims folder or medical records. Subsequent VA examination in 2012, wherein the Veteran's medical history was thoroughly reviewed and examination was given indicated that the appellant's disabilities were less likely than not associated with service. In reaching that opinion the examiner noted that not only was there no documentation of the reported in-service injury, but the Veteran had continued to serve in the National Guard for many years following service. The positive nexus opinions regarding the Veteran's back were premised on a faulty rationale, or a history which the Board does not find credible. Hence, these opinions are assigned little probative value. Although the Veteran is competent to report his symptoms, such as pain, weakness and difficulty walking, he is not competent to render a diagnosis or to provide an opinion addressing the etiology of his disorders. Further, although the Veteran has consistently reported an in-service concrete mixer incident, considering that he reported a flight to a hospital, hospital stay, and assignment to light duty for a week, the absence of documentation in this specific case makes his assertions incredible, such that they are given little probative value. As such, the evidence for a hip, knee, lower or upper back disability is against the claim of entitlement to service connection, and there is no reasonable doubt to be resolved. In reaching this decision the Board acknowledges that the appellant alleges that he is a combat veteran. The record, however, shows that while he was a pioneer and combat demolition specialist, there is no evidence that he actually engaged in combat. He was not awarded any decoration reflective of combat service. Without some independent verification that the appellant served in combat the provisions of 38 U.S.C.A. § 1154(b) are not for application. ORDER Entitlement to service connection for a low back disability is denied. Entitlement to service connection for a cervical spine disability is denied. Entitlement to service connection for a bilateral hip disability is denied. Entitlement to service connection for a bilateral knee disability is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs