Citation Nr: 1328790 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 12-03 734 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for arthritis of the wrists. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The Veteran served on active duty from May 1955 to April 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision, by the Atlanta, Georgia RO, which denied the Veteran's attempt to reopen his claim of entitlement to service connection for a low back disorder; that rating action also denied service connection for bilateral wrist arthritis. On January 15, 2013, the Veteran appeared at the Atlanta RO and testified at a videoconference hearing before the undersigned Veterans Law Judge, sitting in Washington, DC. A transcript of the hearing is of record. By a March 2013 decision, the Board determined that new and material evidence had been submitted to reopen the claim of service connection for a low back disorder and remanded it to the RO for further evidentiary development. The claim of service connection for bilateral wrist arthritis was also remanded for further evidentiary development. A review of the record reflects substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The VA Appeals Management Center (AMC) issued a supplemental statement of the case (SSOC) in July 2013. (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. The Veteran's currently diagnosed low back disorder, including degenerative joint disease, was manifested many years after service, and the evidence of record does not otherwise show that the Veteran's low back disorder is related to service. 2. A wrist disorder was first identified many years after service and is not shown to be causally or etiologically related to service. CONCLUSIONS OF LAW 1. The Veteran does not have a low back disorder that is the result of disease or injury incurred in or aggravated by active military service, and arthritis of the low back may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). 2. The Veteran does not have a wrist disorder that is the result of disease or injury incurred in or aggravated by active military service, and arthritis may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a statement of the case (SOC) or supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, VA satisfied its duty to notify by means of letters dated in October 2010, April 2011, August 2011, and September 2011 from the RO to the Veteran, which were issued prior to the RO decision in December 2011. An additional letter was issued in March 2013. Those letters informed the Veteran of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. The Board finds that the content of the above-noted letters provided to the Veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Board observes that the Veteran's service treatment records are unavailable and appear to have been destroyed in a 1973 fire at the National Personnel Records Center (NPRC) in St. Louis, Missouri. VA has been unable to reconstruct these records and the Veteran has stated that he has been unable to locate his copies of these records. The Veteran has been afforded a VA examination on the issues decided herein. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The examination was conducted by medical professionals who reviewed the medical records, solicited history from the Veteran, and provided information necessary to decide the issues addressed in this decision. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008). Accordingly, the Board finds that VA has satisfied its duty to notify and assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence under the VCAA. Therefore, no useful purpose would be served in remanding these matters for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The Court has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Background The records in this case indicate that the Veteran served on active duty from May 1955 to April 1957. Regardless of multiple search requests, the RO has not been able to locate any service treatment records (STRs) for the Veteran, and the records are presumed to have been destroyed in a fire at the National Personnel Records Center (NPRC) in 1973. An initial VA examination, conducted in October 1992, was negative for any complaints or clinical findings relating to the low back or the wrists. The Veteran's initial claim for service connection for a low back disorder (VA Form 21-4138) was received in November 2007. Submitted in support of the Veteran's claim were VA progress notes dated from March 2008 to September 2008. These records show a past medical history of back pain; however, they do not reflect any current complaints of or treatment for back pain or a wrist disorder. The Veteran's claim for service connection for wrist disability (VA Form 21-526) was received in September 2010; he also sought to reopen his claim of entitlement to service connection for a back disorder. Submitted in support of the claim was a rheumatology progress note, dated in September 2010, indicating that the Veteran was seen at the rheumatology clinic for the first time. On examination, it was noted that the left wrist had some swelling, but no large effusion. An x-ray study of the wrist revealed a calcific density along the dorsum of the wrist; it was noted that the findings were consistent with advanced degenerative osteoarthritis involving the radiocarpal joint, intercarpal joints and first metacarpal joints. The assessment was osteoarthritis of the left wrist. Received in November 2010 was a copy of a photograph of a group of soldiers sitting on top of a tank; the Veteran was identified as being included in the group. Received in August 2011 were treatment reports from Kaiser Permanente, dated from May 2005 to May 2006. These records show that the Veteran received ongoing clinical attention for symptoms of generalized osteoarthritis. During a clinic visit in May 2005, the Veteran reported being blown off a tank and landing on his right knee during the Korean War. At that time, he declined aspiration of the knee. The Veteran also reported having bone spurs in his spine with lower back pain. He also complained of pain on the dorsum of the wrists with mild tenderness. The pertinent diagnoses were generalized osteoarthritis; generalized arthritis in the neck, thoracic spine and lumbosacral spine; lumbar radiculopathy; and bilateral carpal tunnel syndrome, status post bilateral decompression. A follow-up note in May 2006 reflects diagnoses of spondylosis of lumbosacral joints without myelopathy, and bilateral carpal tunnel syndrome. Received in September 2011 were VA progress notes dated from April 2009 to August 2011. During a clinic visit in July 2011, it was noted that the Veteran was brought in for an acute visit due to concerns expressed recently in rheumatology concerning his mood. On examination, the examiner noted arthritic changes of the hands and wrists bilaterally. The reported diagnosis was osteoarthritis and gouty arthritis of multiple sites. A triage intake note, also dated in July 2011, indicates that the Veteran was seen for complaints of right knee and left wrist pain. Of record is a formal finding of unavailability of service medical records, dated in December 2011. In that memorandum, the RO determined that the service treatment records were unavailable for review for active duty Army service from May 13, 1955 to April 25, 1957. It was noted that all procedures to obtain the service records for the Veteran had been followed. Evidence of written and telephonic efforts to obtain the records was in the file. All efforts to obtain the needed information had been exhausted. Received in February 2012 were VA treatment records dated from May 2010 to October 2011. Report of an x-ray study of the wrists, also dated in May 2010, revealed findings consistent with rather advanced degenerative osteoarthritis involving the radiocarpal joint, intercarpal joints and first carpal metacarpal joints. At his hearing in January 2013, the Veteran indicated that he was attached to the 14th Armored Cavalry and they were responsible for patrolling the border. The Veteran explained that he was driving a truck with supplies and one of the tanks ran out of gas; he was refueling the tank when he slipped and fell off the tank injuring his right knee and wrists. The Veteran indicated that he was taken off the truck and placed in a wait area; he was then taken back to the post where he stayed for three days. The Veteran indicated that he sought treatment within a month after service. The Veteran related that he noticed problems with his wrists after he left military service. The Veteran reported that he started getting treatment for his wrists when he moved to Atlanta in 1970/1971; he stated that his doctor told him that he injured his wrists the same time as the knee. The Veteran testified that the back injury occurred at the same time as the injuries to his wrists and right knee; he stated that he only received treatment for his back when he moved to Atlanta. The Veteran related that the doctor has told him that the pain in his back was coming from the right knee because of arthritis. The Veteran was afforded a VA examination in April 2013. At that time, it was noted that back pain has been present for at least 10 years. It was reported that, while in service in 1956, the Veteran fell off a tank with two 10-gallon gasoline containers; he felt that his back, wrists and knee injuries are connected to the fall. The examiner noted that the Veteran complained of his right knee but not of his back or wrists. It was noted that he had not had surgery or injections for his back, and he was not seeing doctors for this and he has never had significant treatment for his back. Following a physical examination, the Veteran was diagnosed with degenerative joint disease of the lumbosacral spine. The examiner stated that the Veteran admitted that at the 1956 injury involving a fall off a tank, he did not have back problems. The examiner noted that, at the October 1992 examination, there was no mention of low back pain, only right knee pain. The examiner further noted that the Veteran's back condition was consistent with his age. Therefore, he concluded that it was as likely as not that the Veteran's low back condition was not related to service. An examination of the wrist was also conducted in April 2013. At that time, the Veteran reported that the wrists began hurting in 1970; he noted that the pain started on its own. The Veteran reported that the pain was located on the back of the wrists with the left greater than the right. He was not currently receiving any treatment. It was noted that past treatment included medication. It was noted that he had not had surgery or injections for his wrists. The Veteran related that, while in the service in 1956, he fell off a tank with two 10-gallon gasoline containers. The Veteran stated that he felt that his back, wrists and knee injuries were connected to the fall. He did complain of his right knee but not of his back or wrists. Following an evaluation of the wrists, the Veteran was diagnosed with degenerative joint disease of the wrists. The examiner stated that the Veteran admitted that at the time of the 1956 injury involving a fall off a tank, he did not have wrist problems. The examiner noted that, at the October 1992 examination, there was no mention of wrist pain, only right knee pain. The examiner further noted that, after leaving the service, the Veteran was a tractor-trailer truck driver for 5 years, an occupation that required the use of his hands and wrists. It was again noted that the wrists began to hurt in the 1970s. Therefore, the examiner concluded that it was as likely as not that the wrists problems were not related to service. III. Analysis The records in this case indicate that the Veteran served on active duty from May 1955 to April 1957. Regardless of multiple search requests, the RO has not been able to locate any service treatment records (STRs) for the Veteran, so the records are presumed to have been destroyed in a fire at the National Personnel Records Center (NPRC) in 1973. If STRs are presumed destroyed, the Board has a heightened obligation to explain its findings and conclusions and consider the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). Service connection may be awarded for disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. § 1110. To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"--the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Holton v. Shinseki, 557 F.3d 1362 (2009). In addition, the law provides that, where a veteran served on active military service and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent within one year from the date of termination of qualifying service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. For a 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." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. If the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2013). A veteran can attest to factual matters of which he has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition (noting that sometimes the lay person 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), (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21. Vet. App. 303 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. Low Back With heightened consideration afforded, the Board finds the Veteran's lay statements to be credible for purposes of establishing an incident in service. However, after review of the record, the Board finds that the evidence is against the claim for service connection for a low back disorder. Significantly, a low back disorder is not shown in the initial post-service year. In fact, the first clinical documentation of the onset of a low back disorder is in May 2005, some 48 years after service separation. In short, the record tends to show a remote, post-service onset of the Veteran's low back disorder. The lapse in time between service and the first diagnosis weighs against the Veteran's claim. The Board may, and will, consider in its assessment of a service connection claim the passage of a lengthy period of time wherein the Veteran has not complained of or experienced the malady at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc). This lack of objective evidence between the period of active military service ending in 1957 and the first diagnosis in 2005, is itself evidence that tends to show that the Veteran's current back disorder did not have its onset in service or for many years thereafter. The medical record also does not present any evidence of arthritis of the lumbar spine being present within the first post-service year, and hence service connection may not be afforded for a low back disorder presumptively on that basis. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Moreover, the evidence of record does not support the Veteran's contention that there is a connection between his current back disorder and an injury to the back in service. While the record demonstrates current diagnosis of a back disorder, including degenerative joint disease of the lumbosacral spine, there is no persuasive evidence demonstrating a relationship between the Veteran's currently diagnosed back disorder and service. The Veteran has not submitted any competent evidence of a nexus to service. Jandreau, 492 F.3d 1372 (Fed. Cir. 2007). Rather, following the VA examination in April 2013, the VA examiner opined that it was as likely as not that the Veteran's low back condition was not related to service. This is strangely worded conclusion that could be taken to mean that it was as likely as not that disability was in fact related to military service, but the context of the statement leads the Board to conclude that the examiner clearly believed the low back disability was not related to service. Indeed, the examiner noted that, at the time of the 1956 injury, the Veteran admitted that he did not have back problems; and, during the October 1992 VA examination, there was no mention of low back pain. The examiner further noted that the Veteran's back condition was consistent with his age. Thus, given the explanation, the Board finds that the record contains no competent evidence that the Veteran has a current disability of the back that is related to a disease or injury incurred during his service. Absent competent evidence of a causal nexus between a current disability of the back and service, the Veteran is not entitled to an award of service connection. The Veteran is certainly competent to state that he sustained a fall during service. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, his opinion that his disability is related to service is not probative. See Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). The Board finds that the etiology of degenerative joint disease of the lumbar spine, manifested years after his period of service, is too complex a medical question to lend itself to the opinion of a layperson. In summary, the evidence clearly points to a remote, post-service onset of the Veteran's low back disorder. There is a lack of credible evidence of pathology or treatment in proximity to service or within years of separation from service. The Board finds the negative and silent record to be far more probative than the Veteran's remote, unsupported assertions. Rather, the competent evidence establishes that the current low back disorder, degenerative joint disease of the lumbar spine, is not related to service. Absent competent evidence relating the current low back disorder to service, the claim of entitlement to service connection must be denied. In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not helpful to the Veteran. 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). B. Wrists Given the heightened obligation to consider the benefit-of-the-doubt rule here (as in all cases where a Veteran's service records have been lost or destroyed), and because there is no objective evidence to the contrary (which would challenge the credibility of the Veteran's accounts of falling off of a tank and injuring his wrists during service), the Board finds it may reasonably be conceded that such an event occurred in service. The record shows that the Veteran has degenerative joint disease of both wrists (i.e., arthritis). However, there is no evidence that arthritis of the wrists was manifested in the Veteran's first post-service year. Therefore, service connection for arthritis of the wrists on the basis that such disability became manifest in service and persisted is not warranted and there is no basis for applying the 38 U.S.C.A. § 1112 chronic disease presumptions (for arthritis of the wrists). In fact, the earliest documentation of a wrist disorder was in May 2005, 48 years following his discharge from service. This initial clinical notation of a bilateral wrist disorder is too remote to support a finding of continuity since service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for a condition can be considered as a factor in resolving a claim). Hence, to establish service connection for a wrist disorder, including arthritis of the wrists, on a direct basis, the Veteran must show by competent evidence that such disability is otherwise related to his active service. The only competent (medical opinion) evidence that directly addresses the matter of a nexus between the current arthritis of the wrists and the Veteran's service is the opinion of the April 2013 VA examiner. That examiner opined that it was as likely as not that the wrists problems were not related to service. The examiner noted that the Veteran has admitted that he did not have any wrists problems at the time of the 1956 injury. The examiner also noted that, during the October 1992 VA examination, there was no mention of wrist pain, only right knee pain. The examiner observed that, after leaving the service, the Veteran was a tractor-trailer truck driver for 5 years, an occupation that requires the use of his hands and wrists. It was again noted that the wrists began to hurt in the 1970s, more than a decade after service. For these reasons, the Board finds that the examiner's opinion is against the Veteran's claim. (Just as with the back claim, the examiner provided an odd statement that could be taken to mean there was, as likely as not, a relationship between current disability and military service; however, the context of the examiner's conclusion leads the Board to conclude that the examiner's meaning was that there was in fact no link to military service.) As the opinion is by a medical professional competent to provide it, and explains the underlying rationale (citing to medical evidence), it is probative evidence in this matter. As there is no medical evidence to the contrary, the Board finds it persuasive. The Board finds the examiner's opinion to be more probative than the Veteran's lay assertions (of causality), as a nexus between the Veteran's current degenerative joint disease of the wrists and a remote injury in service is a complex medical question beyond resolution by lay observation. See Jandreau, 492 F.3d at 1377. The Board acknowledges the Veteran's statements that he fell off a tank and injured his wrists during service. The Board further recognizes that the Veteran, as a layperson, is competent to report on matters observed or within his personal knowledge. See Layno, 6 Vet. App. at 470. However, as a layperson not shown to possess appropriate medical training and expertise, the Veteran is not competent to render an opinion on the etiology of joint disability, as such matter requires medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Thus, the Veteran's opinion that his current bilateral wrist disorder had its onset during service is not a competent medical opinion. As such, the medical findings and opinion of the VA examiner are determinative. For the foregoing reasons, the Board finds that service connection is not warranted for a wrist disorder, including degenerative joint disease. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not helpful to the Veteran in this case because the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107(b) (West 2002); see also Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Service connection for a low back disorder is denied. Service connection for arthritis of the wrists is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs