Citation Nr: 1326160 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 09-44 714 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a cervical spine disability. 2. Entitlement to service connection for a bilateral hip disability. 3. Entitlement to service connection for a bilateral knee disability. REPRESENTATION Appellant represented by: James T. Marr, Esq. WITNESS AT HEARING ON APPEAL Veteran and Spouse ATTORNEY FOR THE BOARD H.J. Baucom, Associate Counsel INTRODUCTION The Veteran had active service from September 1979 to October 1986. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Nashville, Tennessee Department of Veterans Affairs (VA) Regional Office (RO). In January 2011 a Board hearing was held at the RO before the undersigned; the transcript is of record. In a June 2013 letter the Veteran's attorney stated that the Veteran was "awaiting a hearing date." It is unclear whether he is requesting an additional hearing, or is unaware that a Board hearing has already been held before the undersigned addressing the issues on appeal. Under Rule 703, an appellant, or an appellant's representative, may request a hearing before the Board of Veterans' Appeals. (emphasis added) 38 C.F.R. § 20.703. As a hearing (singular) has already been conducted addressing the issues on appeal before the undersigned, the request for another hearing is denied. In December 2012 the Board remanded the claims for further development which has been completed. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. The issue of service connection for posttraumatic stress disorder (PTSD) 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 it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. A cervical spine disability did not first manifest in service, nor is it related to any injury or disease in service. 2. A hip disability did not first manifest in service, nor is it related to any injury or disease in service. 3. A bilateral knee disability did not first manifest in service, nor is it related to any injury or disease in service. CONCLUSIONS OF LAW 1. The criteria for service connection for a cervical spine disability have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). 2. The criteria for service connection for bilateral hip disability have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). 3. The criteria for service connection for bilateral knee disability have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance 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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). A December 2007 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In Bryant v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the regulation. They consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, during the January 2011 Board hearing, the VLJ identified and fully explained the issues on appeal, and asked questions focused on the elements of service connection needed to substantiate the Veteran's claim. Furthermore, the VLJ specifically questioned the Veteran regarding outstanding and potentially pertinent records that may have been overlooked, and suggested that such records be obtained. The Veteran was assisted at the hearing by an accredited representative from the American Legion. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) , and that any error in notice provided during the Veteran's hearing constitutes harmless error. In December 2012 the Board remanded the claim for further development, specifically to assist the Veteran in obtaining additional evidence identified at the Board hearing to include Social Security Administration (SSA) records, private treatment records, hospital records from Fort Lee, Virginia, and VA treatment records. The Veteran's SSA disability determination, and the records considered in that determination, were obtained in January 2013. 38 C.F.R. § 3.159 (c)(2). In a January 2013 letter the Veteran was asked to complete an authorization release (VA form 21-4142) to allow the VA to obtain private clinical records from Dr. CH as well as any other private physician, on his behalf. No authorization was received. In March 2013 there was a formal finding of unavailability of hospital records from the base hospital at Fort Lee, Virginia, for the Veteran from December 1979. The body of the formal finding incorrectly identifies the Veteran's last name; however, the "PIES" information request, and response, which searched for records properly identify the Veteran's first name, last name, middle initial, date of birth, and social security number; therefore, this typographical error is found to be harmless error. The outstanding VA treatment records have been associated with the Veteran's "Virtual VA" electronic claims file. As noted above, at the Board hearing the Veteran identified additional private records from his family doctor who performed employment physicals every two years beginning in 1995; however, no such private records were submitted by the Veteran nor did the Veteran authorize VA to obtain records on his behalf despite being asked to do so. The Board notes that some of these records were received as part of the SSA determination. The duty to assist a veteran in developing evidence is not always a "one-way street." Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). A veteran must cooperate when he is asked for information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Otherwise, he denies VA evidence which might have helped establish his claim. 38 C.F.R. § 3.159(c)(1)(ii) (requiring claimant to cooperate fully with VA's efforts to obtain non-Federal records, including providing authorization for release of records). Here, the Veteran was expressly informed that it was important to his claim to obtain records from his family doctor, but he did not do so, nor did he ask VA to do so. In these circumstances, the Board finds that VA's duty to assist has been satisfied. VA examinations were conducted in May 2008 and June 2008. The May 2008 examination only provided physical findings, and not an opinion on etiology; therefore, it was incomplete and an additional examination was sought and provided in June 2008. The Veteran has not argued, and the record does not reflect, that the June 2008 examination was inadequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The examination was adequate as the examiner reviewed the record, evaluated the Veteran and provided an opinion with supporting rationale as to the cause of the Veteran's current disabilities. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). All of the evidence in the Veteran's claims file has been thoroughly reviewed. Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81(Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision focuses on the most salient and relevant evidence, and on what the evidence shows or fails to show with respect to the matter on appeal. The Veteran should not assume that pieces of evidence, not explicitly discussed herein, have been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Service Connection Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Degenerative changes in the knees and hips have been noted. Arthritis is listed as a 'chronic disease' under 38 C.F.R. § 3.309(a) and will be presumed to be service connected if it manifests to a compensable degree, or there are symptoms of such manifestation, within one year of separation from service. For arthritis to manifest to a compensable degree it must be supported by x-ray evidence. Here the Veteran separated from service in October 1986. As there is no evidence of arthritis, or symptoms of arthritis, within one year of service, service connection on a presumptive basis under 38 C.F.R. § 3.309(a) is not warranted. Also, as the claimed arthritis disabilities are a 'chronic disease' listed under 38 C.F.R. § 3.309(a), 38 C.F.R. § 3.303(b) applies. 38 C.F.R. §§ 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is 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. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Cervical spine disability The Veteran contends that his current cervical spine disability is related to parachute jumping in service, both a specific neck injury in December 1979 and the effect of repetitive jumps in service. The Veteran testified that he injured his neck in December 1979 during a training exercise and was hospitalized at Fort Lee, Virginia, for two weeks. Although hospital records are not available, service treatment records include a discharge summary from December 18, 1979 which diagnosed severe cervical sprain with recommended treatment of bed rest, physical therapy and cervical collar with instructions to follow up with orthopedics in two weeks. Both the Veteran's testimony and the record establish that he had a cervical sprain in December 1979. However, there were no further complaints of neck pain or injury during the next seven years of service, and no neck complaints or disabilities were noted upon exit. Post service there are no reports or records of any neck problems until 2004. In fact at a May 2008 VA examination the Veteran himself reported that his neck pain first began in 2004. At a June 2008 VA examination the Veteran reported that in 2004 while unstrapping something from the bed of the truck, he was hit in the head and knocked unconsciousness, causing him to fall and jar his neck. Evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In June 2008 a VA examination was conducted. The examiner reviewed the claims file, and noted the Veteran's history of in service parachute jumping. The examiner evaluated the Veteran and reviewed the laboratory findings, noting that the March 2008 x-ray of the cervical spine showed no fracture, dislocation or boney destructive lesion but there was mild spurring at the anterior portion of C3, C4, and C5. A MRI of the cervical spine showed a small herniated nucleus pulposus on the right side of C3-C4 with minimal extension of the disc below the end plate. The examiner diagnosed cervical spondylosis and clinically asymptomatic C3-C4 herniated nucleus pulposus. The examiner reported that it was hard to tell, and the Veteran had a difficult time telling, what his baseline manifestations of the neck were prior to being aggravated by his work related injury (in 2004). The increased manifestations were also difficult to determine. The Veteran had neck pain, however he did not have any sort of upper extremity findings in the right upper extremity which would maybe be present if he had a clinically significant herniated disk. The examiner noted mild degenerative changes in the cervical spine, but also noted that the Veteran is 51 years old and the amount of radiographic changes he has is reasonably attributable to age related changes rather than repetitive injury from parachute jumping. The examiner concluded that it is less likely as not that the cervical spine presentation is related to his repetitive parachute jumping but more of an age related phenomenon. The Veteran contends that his current cervical spine disability is due to a December 1979 cervical sprain and repetitive parachute jumping in service. The Veteran testified that he had a neck injury in service and the Board finds his testimony as to the in service injury incident to be competent and credible. As a general matter the Board must consider whether a veteran's particular disability is the type of disability for which lay evidence is competent. Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (2011). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435, as to the specific issue in this case, whether the Veteran's in service cervical sprain more than 30 years ago is related to his current cervical spine disability, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Testimony as to such underlying pathology is testimony as to an internal medical process that extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"); Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (noting impropriety of the Board categorically discounting lay testimony and requiring the Board to determine, on a case by case basis, whether a veteran's particular disability is the type of disability for which lay evidence is competent). The Veteran is competent to report what he experienced and observed through his five senses, such as in service cervical sprain, post service head injury and fall, and neck pain. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). However, the Board finds he is not competent to provide an opinion as to etiology of his current cervical spine disability, or to provide an opinion that the in service injury in December 1979 or multiple parachute jumps is the cause of his current cervical spine disability as he does not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Therefore the Veteran's opinion is of very limited probative value. His opinion is outweighed by that of the physician who examined him, reviewed the record, and provided a competent medical opinion that the current neck disability (cervical spondylosis and clinically asymptomatic C3-C4 herniated nucleus pulposus) is not related to a cervical sprain or any other event in service. In service, in December 1979, the Veteran had a severe cervical sprain. The sprain appears to have been acute and transitory as throughout the next seven years in service he continued to do parachute jumps with no further neck complaints at any time, and none were noted upon exit in October 1986. Post service the Veteran did not report any neck pain until 2004. Even when asked his history of neck pain the Veteran has reported that it began in 2004. For this reason, there is no credible evidence of continuity of symptoms post service. In 2004 the Veteran was struck in the head, lost consciousness and fell. The Veteran currently has neck pain and a herniated disc. The only medical opinion of record is that the Veteran's current cervical spine disability is not related to service. There is no competent evidence that the cervical spine disability was incurred in or is related to any injury or disease in service. The preponderance of the competent evidence is against the claim; there is no doubt to be resolved. Service connection for a cervical spine disability is not warranted. Bilateral hip disability The Veteran contends that he injured his hips while parachute jumping in service. He testified that he was injured in a parachute jump in 1982 in California although he did not seek treatment for it at the time. Post service treatment records show complaints of hip pain. At the May 2008 VA examination the Veteran reported having pain in his hips in 2004. X-rays of the left and right hips show no obvious boney fracture, subluxation or abnormality. The examiner diagnosed right and left hip strain. At the June 2008 VA examination the Veteran reported having constant aching pain in his hips that is not necessarily related to anything that he does. He reported an injury from parachute jumps. After physical examination and review of the records, including x-rays, the examiner found that the Veteran had a normal hip exam. He noted that the Veteran did not have any abnormalities of the hip, concluding that as a result of normal hips it is less likely than not that the current hip problems are related to parachute jumping. A January 2009 medical examination for disability purposes found that the Veteran's bilateral hip pain is likely early degenerative disease. A May 2010 x-ray of the hips was normal. Although some x-rays of the hips are normal, the Veteran has been diagnosed with a bilateral hip disability (bilateral hip strain) during the appeal period. McClain v. Nicholson, 21 Vet. App. 319 (2007). In service the Veteran reported hurting his hips while parachute jumping but not seeking treatment for it. He is competent to report what he experiences, such as pain in his hips during service; however he is not competent to provide an opinion as to whether parachute jumping more than 30 years previously, followed by a period of over 20 years of no hip complaints, caused the Veteran's current bilateral hip disability, as that falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, Jandreau v. Nicholson, 492 F.3d 1372. Post service the Veteran reported that his hip pain began in 2004. There is no evidence of hip pain, treatment for hip pain or hip complaints prior to then. For this reason, there is no credible evidence of continuity of symptoms post service. Evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Although the Veteran currently has a hip disability there is no competent evidence that any such bilateral hip disability was incurred in or is related to any injury or disease in service. The preponderance of the competent evidence is against the claim; there is no doubt to be resolved. Service connection for a bilateral hip disability is not warranted. Bilateral knee disability The Veteran contends that he injured his knees while parachute jumping in service. He testified that he was injured in a parachute jump in 1982 in California although he did not seek treatment for it at the time. Service treatment records show complaints of right knee pain in November 1982 with reports of a prior trauma. In November 1982 an x-ray was taken of the left knee, which was negative. In July 1983 the Veteran complained of right knee pain after falling; however, an x-ray of the right knee was negative. Post service the Veteran testified that his knees really began to bother him in 1995. He also testified that after he left service he drove a truck for 20 years but he can't any more due to his knees. At the June 2008 VA examination the Veteran reported that his bilateral knee pain was due to parachute jumping. The Veteran reported pain when squatting and bending his knees. May 2008 x-rays of the left and right knees showed no fracture, dislocation or boney destructive lesions and well maintained joint space. After physically examining the Veteran the examiner diagnosed chrondomalacia patella bilateral knees, which he explained is a clinical diagnosis from pain around the patellofemoral joint. The examiner noted that the pain was related to going down stairs, squatting and doing activities that include bending. The examiner found that these were not impact type injuries, and as a result it is less likely than not that the chondromalacia patella is related to the parachute jumps. In June 2009 x-rays noted early degenerative changes. As discussed above, although the Veteran would be competent to provide an opinion on some medical issues, the specific bilateral knee disability issue, whether parachute jumping more than 30 years prior caused the Veteran's current bilateral chondromalacia patella, falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, Jandreau v. Nicholson, 492 F.3d 1372. The Veteran is competent to report his knees hurt during service. He is competent to report that after service his knees really began to hurt in 1995. He is also competent to report that his knees currently hurt. However he is not competent to opine that his current knee pain is due to knee pain in service more than 30 years prior and his opinion is of little probative value. See Rucker v. Brown, 10 Vet. App. 67. More significantly his opinion is outweighed by that of the physician who examined him, reviewed the record, and provided a competent medical opinion that the current bilateral knee pain is not related service but rather is due to age. There is no competent evidence that a bilateral knee disability incurred in or is related to any injury or disease in service. The preponderance of the competent evidence is against the claim; there is no doubt to be resolved. Service connection for a bilateral knee disability is not warranted. ORDER Service connection for a cervical spine disability is denied. Service connection for a bilateral hip disability is denied. Service connection for a bilateral knee disability is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs