Citation Nr: 1328804 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 09-16 190 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for residuals of nitrogen narcosis. 2. Entitlement to service connection for degenerative arthritis of the hips. 3. Entitlement to service connection for degenerative arthritis of the knees. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Shawkey, Counsel INTRODUCTION The Veteran served on active duty from December 1954 to November 1956. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. This matter was previously before the Board in April and August 2012 at which times it was remanded for additional development. The development included scheduling the Veteran for a video conference hearing (which he later canceled), requesting pertinent service personnel and medical records and post service medical records, and affording the appellant VA examinations. There has been substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). In August 2012, the Board remanded the issue of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). Subsequently, in July 2013, the RO granted service connection for PTSD. As this represents a full grant of the benefits sought with respect to this issue, it is no longer on appeal. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977). In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The Virtual VA file has been reviewed in conjunction with the disposition of the issues on appeal and the pertinent evidence is noted below. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran does not have physical residuals secondary to nitrogen narcosis. 2. Degenerative arthritis of the hips was first manifested years after service and is unrelated to service. 3. Degenerative arthritis of the knees was first manifested years after service and is unrelated to service. CONCLUSIONS OF LAW 1. Chronic physical residuals of nitrogen necrosis were not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 2. Degenerative arthritis of the hips was not incurred in or aggravated by service, and arthritis of the hips may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. Degenerative arthritis of the knees was not incurred in or aggravated by service, and arthritis of the knees may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) VA has fulfilled its duty to notify the appellant in this case. In a May 2008 letter, the RO informed the claimant of the applicable laws and regulations, the evidence needed to substantiate the claims decided herein, and which party was responsible for obtaining the evidence. 38 C.F.R. § 3.159 (2012). Thus, the notice required by the VCAA and implementing regulations was furnished to the claimant and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. The Board also finds that all necessary assistance has been provided to the appellant including requesting information regarding pertinent medical treatment he may have received and requesting records from the identified providers. In assisting the appellant, the RO has made numerous attempts to obtain the Naval Ship Log from the ship on which he reported served when he was involved in a 1955 diving accident. Unfortunately, repeated attempts to obtain the Naval Ships Log for the pertinent period, i.e., October and November 1955, have been unsuccessful. See Memorandum of Formal Finding of the Unavailability of Service Records dated in August 2011 (for period from October to November 1955). The RO notified the appellant of this by letter dated in May 2011. Accordingly, there is no further duty to assist the appellant in obtaining these records and that the Board has met its duty to assist the Veteran in obtaining the records. Any further attempts to obtain such records would be futile. In terms of VA examinations the Board finds that April 2013 examination reports contain sufficient findings and opinions with which to properly decide this claim. Lastly, the appellant was provided with an opportunity to testify before the Board. Under these circumstances, VA has fulfilled its duty to notify and assist the appellant in the claims on appeal, and adjudication of these claims at this juncture, without directing or accomplishing any additional notification and/or development action, poses no risk of prejudice to the appellant. See, e.g., Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The appeal is now ready to be considered on the merits. II. Analysis A. Provisions of Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F. 3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which a veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C.A. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, arthritis is presumed to have been incurred in service if manifested to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101(3), 1112(a)(1), 1113, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). B. Residuals of Nitrogen Narcosis Initially, the Board notes the Veteran does not assert that residuals of nitrogen narcosis a result of combat. Therefore, the provisions of 38 U.S.C.A. § 1154(b) are not for application with respect to this matter. The Veteran asserts that in the fall of 1955 he was injured in a diving accident that resulted in his hospitalization. He explained in a June 2008 statement that, during an open sea dive in about 120 to 150 feet of water, he was lowered on a stage down to the depth and got tangled up in his straps and hoses. Reportedly, a standby diver helped him get untangled but he had a "partial squeeze". The appellant said he was brought to the top on a diving stage at different intervals to decompress. Thereafter, he was put into a decompression chamber on the ship and had nitrogen narcosis at the time of the incident. He also said that he was hospitalized at the Dahlgren Virginia Naval Base before returning to his ship. As noted above, despite extensive efforts, VA has not been able to locate records documenting the incident. Nonetheless, the RO, in a July 2013 rating decision, conceded the incident and awarded the Veteran entitlement to service connection for PTSD based on this incident. For the purposes of the claims at issue in this decision the Board will find that the Veteran is credible in regard to the incident he alleges. See Buchannan v. Nicholson, 19 Vet. App. 362, 367-68 (2005) (it is the Board's responsibility, as fact-finder, to determine the credibility and weight to be given to the evidence). However, even conceding that the diving incident occurred as alleged and resulted in nitrogen narcosis, an in-service injury alone is not enough to establish service connection. Rather, there must be a current disability and evidence that the current disability resulted from the injury during service. Chelte v. Brown, 10 Vet. App. 268, 271 (1997). In terms of residual disability, the Veteran asserts that the diving trauma caused a psychiatric disability (for which is currently service connected for (i.e., for PTSD)) and orthopedic problems (discussed below). However, with respect to any other residual of nitrogen narcosis, there are no residual symptoms shown by the evidence. None are alleged by the Veteran and none are evident in the inservice or postservice medical records. Moreover, a VA examiner in April 2013 in noting that the Veteran had an inservice diving accident, opined that the appellant had no residual physical symptoms relating to the incident other than psychiatric symptoms. The examiner reported that a respiratory exam and pulmonary function tests were normal and there was no diagnosis. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in disability. In the absence of proof of current disability due to disease or injury, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The weight of evidence in this case does not show that the Veteran currently suffers from residuals of nitrogen narcosis other than the psychiatric symptoms for which he is already service-connected for. As the preponderance of the evidence is against the claim of entitlement to service connection for residuals of nitrogen narcosis other than PTSD, the benefit-of-the-doubt doctrine is not for application, and the claim of entitlement to service connection for such disability must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Fagan v. Shinseki, 573 F. 3d 1282, 1287 (Fed. Cir. 2009). C. Orthopedic Disabilities The Veteran claims entitlement to service connection for degenerative arthritis of his knees and hips. He asserts that doctors have told him that the inservice diving accident and all of his dives could have caused the problems and deterioration with his joints. See statement received in June 2008. As the appellant does not assert that these disabilities are the result of combat, the provisions of 38 U.S.C.A. § 1154(b) are not for application in regard to these matters. As noted above, the Board concedes that the diving incident in the fall of 1955 occurred as alleged by the Veteran. Significantly, the Veteran's service treatment records are devoid of complaints or treatment regarding either a knee or hip joint disorder. His November 1956 separation examination report shows that his hips and knees were clinically normal. Postservice records include VA outpatient records showing that the Veteran requested orthopedic care from VA in 2002 and reported that his private orthopedic doctor had recommended total knee replacements. A May 2003 VA record shows that the Veteran was being evaluated for chronic bilateral knee pain for many years without history of trauma. He was assessed as having degenerative joint disease of the knees. A July 2006 VA record notes that the Veteran complained of left hip pain for the prior two years and knee pain for the last 10 years. Knee x-rays performed in July 2006 revealed moderate severe osteoarthritis in the left knee and degenerative changes with loose bodies in the right knee. The Veteran was assessed in July 2006 as having bilateral knee and left hip pain secondary to osteoarthritis. In September 2006, he was prescribed physical therapy for his knees. Records in October 2006 reflect an assessment of left hip greater trochanteric bursitis and show that the Veteran was ready for a total left hip replacement. X-rays performed by VA in September 2007 revealed a severely arthritic left hip and right knee. In December 2007, the Veteran underwent a left total hip replacement. A January 2008 record shows that he was seen for osteoarthritis of the left hip and both knees which he had had for 15 years. An October 2008 VA record shows that the Veteran reportedly was told 15 years earlier that he had a medial right meniscus tear. The appellant reported several months of left hip pain, more so after a fall in September 2008. He was also noted to have right knee pain for several years. He was prescribed a knee brace in December 2008. A January 2009 VA record notes that the Veteran had osteoarthritis in both hips and both knees. He reported much worse pain in his left knee and somewhat worsening pain in his right knee. Private medical records in August 2010 show that the Veteran underwent bilateral total knee replacements due to end-stage osteoarthritis. VA records show in January 2011 show that left hip x-rays revealed no loosening or signs of infection, but an ultrasound of the left hip in June 2012 revealed fluid in the left groin area. In August 2012 the appellant was found to have a five month history of a left groin infection described as a left cystic groin mass. He was prescribed antibiotics which was noted to alleviate most of the pain. In considering this claim under 38 C.F.R. § 3.303(b) for evidence of a chronic knee or hip disability in service or continuity of symptomatology after service, this has not been shown by the evidence of record. The Veteran separated from active duty in 1956, and as outlined above, the Veteran's complaints of knee pain date back to approximately 1996 and (left) hip pain to approximately 2004. This places the onset of symptomatology, namely pain, many years after service. 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). As to whether the current disabilities are otherwise related to service, the only probative evidence that addresses this point militates against the Veteran's claim. In this regard, a VA examiner in April 2013, after examining the Veteran and reviewing his claims file, diagnosed severe degenerative joint disease of the knees and left hip, with subsequent total knee replacements and a total left hip replacement. He opined that the Veteran's bilateral total knee replacement and total left hip replacement were not related to his military service. He based this on the fact that he saw no evidence of any trauma or incident which would cause severe degenerative joint disease which would require joint replacement surgery. The examiner said that the Veteran was obese and his joints had been replaced in his sixties. The examiner opined that if the appellant injured his knees and left hip when he was in the service severe enough to require joint replacement surgery, he would have had the surgeries or been seen shortly after discharge which was not the case. The examiner reiterated that in order to cause posttraumatic arthritis severe enough for a joint replacement, there would have had to have been a severe injury which he did not see in the Veteran's claims file nor did the appellant report such an injury. There are no contrary medical opinions on file. As to the Veteran's statement that his doctors told him that the 1955 diving incident and all of his dives "could have" caused the problems and deterioration in his joints, there is no such opinion on file despite VA's notice to the appellant that he should submit all pertinent evidence. See 38 U.S.C.A. § 5103A. Moreover, service connection may not be based on speculation or mere possibility. Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992). Additionally, while lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology, Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007)), the etiology of degenerative arthritis is a medical matter for which lay testimony is not competent. Indeed, even if the Veteran's lay opinion was competent, the specific and reasoned April 2013 opinion of the trained medical professional negating a nexus outweighs the Veteran's general lay assertion of a nexus in light of the medical examiner's training, expertise and specialized knowledge. In light of the foregoing, the Board must conclude that the requirements for establishing service connection for degenerative arthritis of the knees and hips has not been met. The weight of evidence preponderates against finding a causal relationship between postservice degenerative arthritis of the knees and/or hips and a disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER Entitlement to service connection for residuals of nitrogen narcosis is denied. Entitlement to service connection for degenerative arthritis of the hips is denied. Entitlement to service connection for degenerative arthritis of the knees is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs