Citation Nr: 1334303 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 12-21 051A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a right knee condition. 2. Entitlement to service connection for a left knee condition. 3. Entitlement to service connection for a back condition. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Larson, Associate Counsel INTRODUCTION The Veteran had active duty from November 1951 to August 1953. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which granted service connection for post traumatic stress disorder, bilateral hearing loss, and tinnitus, while denying service connection for a right knee condition, a left knee condition, a bilateral foot condition, a back condition, and sleep apnea. The Veteran filed a timely notice of disagreement (NOD) with the decision regarding the denials of the knee conditions and back condition. A statement of the case (SOC) was generated in August 2012, continuing the denials. Later in August 2012, the Veteran's representative, presumably in error, submitted a statement purporting to be a claim for "[e]ntitlement to an increased rating for: 1. Knees 2. Back pain." The RO, also in error, construed this as a petition to reopen the Veteran's claims based on new and material evidence and sent the Veteran VCAA Notice regarding this in January 2013. This was a mistake because the Veteran's original appellate window for his knee and back claims had not closed when his representative made his statement. The RO corrected itself in March 2012 and re-characterized the representative's August 2012 statement as one in lieu of a VA Form 9 substantive appeal. Because the Veteran had submitted new evidence since the August 2012 SOC, the RO issued a July 2013 supplement statement of the case (SSOC), which continued to deny the Veteran's claims. The Board has reviewed the Veteran's electronic record (Virtual VA) prior to rendering a decision in this case. It does not contain any evidence not already in the claims folder or considered by the RO. 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 has been diagnosed with osteoarthritis and a tear of the medial meniscus in his right knee. 2. The Veteran has been diagnosed with osteoarthritis in the left knee. 3. The Veteran has been diagnosed with degenerative disc disease, L5-S1. 4. A preponderance of the evidence is against a finding that the Veteran's current knee and back conditions are attributable to his time on active duty in the military. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee condition have not been established. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 2. The criteria for service connection for a left knee condition have not been established. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 3. The criteria for service connection for a back condition have not been established. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing information and evidence necessary to substantiate a claim. To satisfy its duty to notify, the VA must inform the claimant of any medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice applies to three distinct types of information: 1) information that is necessary to substantiate the claim; 2) information that VA will seek to provide; and 3) information that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); C.F.R. § 3.159(b)(1) (2013); Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). Additionally, proper notice must be provided to the claimant before the initial unfavorable adjudication by the RO. 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The United States Court of Appeals for Veterans Claims held that the VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Here, the Veteran was provided with a letter in February 2010 that contained all of the notification required by 38 C.F.R. § 3.159, as defined by Quartuccio, Dingess, and Pelegrini. Specifically, the letter informed the Veteran what the evidence must show in order to establish service connection for his disabilities. It also informed the Veteran how the VA determines disability ratings and effective dates. The letter was received prior to the initial adjudication of the Veteran's claim. Thus, the Board concludes that the duty to notify has been met. To satisfy its duty to assist, the VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A. This includes assisting the claimant in obtaining necessary medical examinations and opinions. Id. The VA must provide a medical examination when there is competent evidence of a current disability, evidence of an in-service injury, an indication that the current disability may be associated with service, and insufficient competent medical evidence on file to reach a decision. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In this case, the Veteran's service treatment records (STRs) could not be located and associated with the claims file. The United States Court of Appeals for Veterans Claims (Court) has generally held that, when STRs are lost or destroyed, VA has a heightened duty to assist in the development of a claim and the Board has a heightened obligation to explain its findings and conclusions. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (citing O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). In February 2010, the RO received a response indicating that the Veteran's records were not available and likely destroyed in a fire. A notice was sent to the Veteran in July 2010 indicating that further attempts to locate his STRs would be futile. See 38 C.F.R. § 3.159(c)(2). The Veteran was given the opportunity to send any copies he had, but did not produce any of the records. Despite the lack of the Veteran's STRs, the Board concludes that the duty to assist has also been met. Multiple sources of private treatment records were identified by the Veteran, and those records have been obtained and associated with the file. The Veteran did indicate an additional source of private treatment as "Clifton Ford Hospital," but indicated that this hospital was no longer operating and destroyed his records after 10 years. The Veteran was scheduled to undergo a VA Compensation and Pension examination regarding his knees and back in July 2013. However, he did not show up for this examination and has not provided good cause for this failure to report. See Wood. V. Derwinski, 1 Vet. App. 190, 193 (1991) (VA's duty to assist the Veteran in developing the facts and evidence pertinent to a Veteran's claim is not a one-way street.) Neither the Veteran, nor his representative, has given any reason for the absence or requested another examination. He was told the ramifications of not attending his examination in the July 2013 SSOC. Thus, there is no indication that there is any relevant evidence outstanding in these claims and the Board will proceed with consideration of the Veteran's appeal. II. Merits of the Claim The Veteran contends that service connection is warranted for his knee conditions, as well as his back condition, as they relate back to his military service. Specifically, he claims that he injured both knees and his back when lifting a heavy "155 hauser (gun)" in order to hook it to the "half track." Service connection is established where a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). A veteran may be granted service connection for any disease initially diagnosed after discharge, but only if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). There is an alternative path to service connection: using a presumption. The presumptive service connection is available to veterans who suffer from certain chronic disorders and diseases that manifest during service or within one year after service. See C.F.R. §§ 3.307, 3.309. If a veteran's conditions cannot be said to be "chronic" in the medical sense, he or she may still yet succeed in establishing the presumptive service connection if a continuity of symptomatology can be shown, assuming his condition is one listed in the regulation. Walker v. Shinseki, 708 F.3d 1331, 1339 (Fed. Cir. 2013). The Veteran's osteoarthritis of the knees and degenerative disc disease of the back qualify for the presumptive service connection. See 38 C.F.R. § 3.309(a). However, there is no indication that these conditions manifested during service or within one year after service. The first complaint of right knee pain is found in a November 2003 private record, over 50 years after the Veteran left service. Likewise, his first complaint of left knee pain came in May 2007 and his first complaint of back pain came in September 2010. For these reasons, the presumptive service connection is not available to the Veteran. With regards to any medical evidence, a diagnosis or opinion by a health care professional is not conclusive and is not entitled to absolute deference. Indeed, the Court has provided guidance for weighing medical evidence. The Court has held, for example, that in meeting our responsibility to weigh the credibility and probative value of the evidence, we may accept one medical opinion and reject others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999); Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)). However, the Board is mindful that it cannot make its own independent medical determinations, and that it must have plausible reasons based upon medical evidence in the record for favoring one medical opinion over another. Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (citing Colvin v. Derwinksi, 1 Vet. Appl. 171 (1991)). Thus, the weight to be accorded the various items of evidence in this case must be determined by the quality of the evidence and not necessarily by its quantity or source. In making all determinations, the Board must fully consider all lay assertions of record. A layperson is competent to report on the onset and continuity of observable symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board's duty is to assess the credibility and weight of the evidence. See Dalton v. Nicholson, 21 Vet. App. 23, 36 (2007); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Competent lay evidence may establish the presence of observable symptomatology and, in certain circumstances, it may provide a basis for establishing service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Although claimants may be competent to provide the diagnoses of simple conditions, such as a broken leg, they are not competent to provide evidence on more complex medical questions beyond simple observations, as is the case here. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a veteran's lay belief that his schizophrenia aggravated his diabetes and hypertension was not of sufficient weight to trigger the Secretary's duty to seek a medical opinion on the issue). Even if lay testimony is competent, should VA find it to be mistaken or lacking credibility, the Board may reject it as unpersuasive. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Once evidence is determined to be competent, the Board must determine whether the evidence also is credible, as only then does it ultimately have probative value. See Layno (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted). In order to grant a veteran's claim for a service connected disability, the VA must examine the evidence and determine whether the claim is supported 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, 53 (1990). 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. Id. Here, the Veteran has a current diagnosis of osteoarthritis in each knee. His right knee was also diagnosed with a meniscus tear. The Veteran has a current diagnosis of degenerative disc disease, L5-S1. He has provided multiple private treatment records from 2003 through 2011 regarding the treatment of these conditions and detailing his subjective complaints of pain. The only evidence the Veteran has submitted regarding an in-service injury is his February 2013 statement that he injured his knees and back in service while lifting a "155 hauser (gun) to hook to the half track." He is competent and credible to report what happened to him in service and there is no reason to doubt his recollection of events in this matter. However, the Veteran is not competent to link his current disabilities with his period of service. This determination requires a complex medical assessment, particularly given the length of time and the Veteran's work history (identified only as "for the railroad") between his claimed in-service injury and his diagnoses. The record is devoid of any evidence that establishes this "nexus," which is needed in order to establish service connection for a disability. See Shedden, 381 F.3d 1163, 1167. In addition, the record is absent any complaints prior to 2003 regarding the Veteran's conditions, so there is no symptomatology to give weight to in deciding his claims. The Veteran has not reported that he had back and knee symptoms during service and/or of a continuity of symptoms since service. As noted above, the Veteran was scheduled for a VA examination in July 2013 in order to obtain an opinion as to whether his current knee and back disorders were related to his in-service injury; however, he did not report for this examination. Neither the Board nor the Veteran is competent to supplement the record with unsubstantiated medical conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Accordingly, in the absence of any competent and credible evidence establishing a nexus between his current disabilities and his period of service, the Veteran's claims for service connection for back and right and left knee disorders must be denied. ORDER Entitlement to service connection for a right knee condition is denied. Entitlement to service connection for a left knee condition is denied. Entitlement to service connection for a back condition is denied. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs