Citation Nr: 1331450 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 11-33 290 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to service connection for degenerative osteoarthritis of the cervical spine. 2. Entitlement to service connection for arthritis affecting the bilateral knees. ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION The Veteran was in missing status from October 1943 to February 1945 and he had recognized guerilla service from February 1945 to December 1945. He also had Regular Philippine Army service from December 1945 to January 1946. For the purposes of this decision, only the Veteran's recognized guerilla service from February 1945 to December 1945 is considered active duty for which VA compensation benefits may be awarded. See 38 C.F.R. § 3.40(b), (c), (d) (2012). This matter comes before the Board of Veterans' Appeals (Board) from a December 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) above. On the back page of the Veteran's form 9, he requests dependency and indemnity compensation (DIC) and special compensation. These matters are referred to the RO for appropriate action. 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 evidentiary record contains medical evidence showing a current diagnosis of degenerative osteoarthritis of the cervical spine, and arthritis affecting the bilateral knees. 2. The evidentiary record contains competent lay evidence of cervical spine and bilateral knee symptoms since service, and medical evidence of knee and cervical spine problems as early as the 1960s and 1986, respectively. 3. The evidentiary record does not contain competent or credible evidence of an event, injury, or disease incurred or aggravated during service to which the current cervical spine and bilateral knee disabilities may be related. CONCLUSIONS OF LAW 1. Degenerative osteoarthritis of the cervical spine was not incurred in nor aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 2. Arthritis affecting the bilateral knees was not incurred in nor aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a letter sent to the Veteran in November 2010, before the initial unfavorable AOJ decision issued in December 2010, advised the Veteran of the evidence and information necessary to substantiate a service connection claim, as well as his and VA's respective responsibilities in obtaining such evidence and information. The November 2010 letter also informed him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. Relevant to the duty to assist, the Veteran's service treatment records, as well as all post-service treatment records identified by the Veteran and the record have been obtained and considered. The Veteran has not identified any additional, outstanding records that he wishes to be considered in his appeal. The Board notes that the Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file, which are either duplicative of those already in the claims file or not pertinent to the present appeal. Therefore, the Board will proceed with review of the Veteran's claims based upon all relevant evidence. The Board notes that the Veteran has not been provided with a VA medical examination and/or opinion regarding his claims for service connection for degenerative osteoarthritis of the cervical spine and arthritis affecting the bilateral knees; however, the Board finds that such is not necessary in the instant case. Specifically, as will be discussed below, there is no competent or credible evidence of an event, injury, or disease that was incurred in service to which the current disabilities may be related. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this regard, while the Veteran has filed his service connection claim, submitted argument in support of his claim, and provided evidence of related symptomatology after service, he has not provided any information, argument, or evidence regarding an injury or disability incurred during service to which his claimed disabilities may be related. The Court has held that VA is not required to provide a medical examination when there is not credible evidence of an event, injury, or disease in service. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). Additionally, a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Therefore, the Board finds that a VA examination and/or opinion is not necessary to decide the claims. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claims. II. Analysis The Veteran seeks service connection for degenerative osteoarthritis of the cervical spine, and for arthritis affecting the knees. He claims that he was not provided a separation examination when he was discharged from the United States Army. He reports that both knees have bothered him ever since discharge and that he has experienced pain with parathesia, and swelling of the lower extremities, on ambulation, even for short distances. He also claims that he has had a slight limp gait. He does not provide specifics about how his knees and cervical spine were injured during service, but claims that they were caused by the pain and hardship and agony of World War II. (See the Veteran's comments in his form 9 and attachment dated in November 2011). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease 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). Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Depending on the evidence and contentions of record in a particular case, lay evidence can be competent and sufficient to establish a diagnosis and medical etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009), Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. With respect to continuity of symptomatology, the Court of Appeals for Veterans Claims (Court) recently held that, under 38 C.F.R. § 3.303(b), the theory of continuity of symptomatology is an alternative route to establish service connection for specific chronic diseases and can only be used in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, is 708 F.3d 1331 (Fed. Cir. 2013)). The Board will evaluate the claims herein with this holding in mind. In this context, service connection for certain chronic disorders, including arthritis, will be rebuttably presumed to have been incurred in or aggravated by service if manifested to a compensable degree within a specified period of time following active service, e.g., one year for arthritis. 38 U.S.C.A. § 1110, 1137; 38 C.F.R. §§ 3.307, 3.309. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In support of his claim for service connection for degenerative osteoarthritis of the cervical spine and arthritis affecting the bilateral knees, the Veteran has submitted evidence of current diagnoses for claimed disabilities, including a November 2009 x-ray showing evidence of degenerative cervical osteoarthritis, and medical statements dated in March 2007 and October 2010, which show the Veteran has chronic arthritis in both of his knees. See the March 2007 statement from Dr. R.M., and the October 2010 statement from Dr. M.M. Based upon this evidence, the first element of service connection has been established. The second element of service connection is the required showing of in-service incurrence or aggravation of a disease or injury. Here, the Veteran has only stated that these disabilities are associated with the rigors of his service in World War II. These statements provide a very weak allegation of in-service occurrence; but in order to give the Veteran the benefit of the doubt, the Board will find that this is sufficient to establish the second element of service connection. However, as to the third element of service connection, that of a causal connection between the current disabilities and service, the claim fails. As noted above, the Veteran provides no specifics about how he was injured or whether the disorders at issue began in or were diagnosed in service or within one year of service, despite letters sent to him in November 2011 and November 2010 informing him of what evidence must show to establish service connection, specifically, "an injury in service, or a disease that began in or was made permanently worse during military service, or there was an event in service that caused injury or disease." Here, the Veteran makes a vague claim that the current disabilities at issue are somehow related to the vigors of his war-time experience. Service connection may also be established if there is evidence of the existence of a chronic disease in service or, during the one-year period after service discharge. Here, the disorders on appeal were not noted in service. Contrary to the Veteran's statements, the file does contain a document dated in January 1946, and titled "Report of Physical Examination of Enlisted Personnel Prior to Discharge, Release from Active Duty, or Retirement". It shows that he had no musculoskeletal defects. Another document from this time period, an "Affidavit for Philippine Army Personnel" shows the Veteran sustained no wounds or injuries from December 8, 1941 to the date he was returned to [Philippine] military control. The first evidence of a bilateral knee disability or a cervical spine disorder is demonstrated in the 1960's and 1986 respectively. This information, along with the fact that the Veteran has not indicated that any particular injury to his knees or cervical spine during active duty with the U.S. Army, must lead to a conclusion that there was no chronic disease diagnosed in service, or within one year of service. Service connection may not be awarded on a presumptive basis. Service connection may also be established under 38 C.F.R. § 3.303 which provides for service connection when a chronic disease is not present during service, but there is evidence of continuity of symptomatology. This evidence must include 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'". 38 C.F.R. § 3.303 (a). Here, the Veteran has claimed that he sought treatment for his claimed disabilities shortly after service, and he has also stated that he is unable to obtain records of such treatment, as the physicians who treated him after the war are, now, deceased. See December 2010 VA Form 21-4138. The Veteran has submitted the medical evidence which he claims shows he sought treatment for his claimed disabilities after discharge from service. In this context, the record contains an August 2010 statement from Dr. B.L., which states that the Veteran was his patient in the early 1960's and received treatment for rheumatoid arthritis, which initially involved his knees but progressed to involve his elbows, shoulders, and ankles. Likewise, in October 2010, Dr. M.M. stated that the Veteran had been under his medical care since November 1986 to the present due to degenerative osteoarthritis manifested by painful extremities and difficulty walking, as well as painful neck and nape due to rheumatoid arthritis. Neither relates the current disorders to service nor shed light on the time prior to their treatment of the Veteran. There are several reasons why this evidence fails to demonstrate continuity of symptomatology. First, no doctor has determined that the Veteran had a chronic disorder in service, nor have they related the disorders on appeal to the Veteran's service, nor have they put forth the theory that the osteoarthritis of the cervical spine and arthritis of the knees were caused by the pain, hardship, and agony of World War II. Further, based upon the Veteran's lack of information about his symptoms during service, the Board finds that there is a lack of "manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at that time" as required by 38 C.F.R. 3.303(a). The same can be said for the period after the Veteran's service, but before the medical evidence showing treatment starting in the 1960's. Additionally, there is no evidence to establish continuity of symptoms or a history of the disorders on appeal. In a Joint Affidavit of September 2010, J.T.V., and C.J.P. attest that they "know for a fact that after our discharge from the service, our buddy, [the Veteran], was complaining of ...and arthritis on his knee and spinal cord...." This information is of no probative value. In essence, it provides medical conclusions by non-doctors without a recitation of what the original injuries were, or the actual symptoms witness, or when the symptoms occurred. Service connection is denied under 38 C.F.R. §3.303(b)(c) and (d). The Board has considered the Veteran's own assertion that he incurred osteoarthritis of the cervical spine and arthritis of the knees as a result of his service. The Board finds that the Veteran's assertions regarding medical diagnoses and opinions as to etiology of medical conditions are afforded little probative weight in the absence of evidence that the Veteran has medical training that can provide the expertise to render opinions about medical matters. See Bostain v. West, 11 Vet. App. 124, 127 (1998). Where the determinative issue involves a medical opinion, there must be competent medical evidence to the effect that the claim is plausible. Here, the Veteran does not have the required medical expertise to determine whether his osteoarthritis of the cervical spine and arthritis of the knees are related to service, because such a finding is first demonstrated through the medical interpretations of results of clinical and laboratory testing that would not be capable of lay observation. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002). Accordingly, the Board finds the preponderance of the evidence is against the grant of service connection for degenerative osteoarthritis of the cervical spine and arthritis affecting the bilateral knees, as there is no competent or credible evidence of an in-service event, injury, or disability to which the current disabilities may be related. Because the evidence preponderates against the Veteran's claim, the benefit-of-the-doubt doctrine is not for application. See Gilbert, supra. ORDER Entitlement to service connection for degenerative osteoarthritis of the cervical spine is denied. Entitlement to service connection for arthritis affecting the bilateral knees is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs