Citation Nr: 1334904 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 08-14 395 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for a cervical spine disability. 2. Entitlement to service connection for a low back disability. 3. Entitlement to service connection for a left hip disability. 4. Entitlement to service connection for a right hip disability. 5. Entitlement to service connection for a left knee disability. 6. Entitlement to service connection for a right knee disability. 7. Entitlement to service connection for a left ankle disability. 8. Entitlement to service connection for a right ankle disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Evan M. Deichert, Counsel INTRODUCTION The Veteran, who is the appellant, had honorable service from July 1980 to June 1983. From July 1983 to May 1986, the Veteran had other than honorable service. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in November 2006 of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a Travel Board hearing on his May 2008 substantive appeal; in November 2008, however, the Veteran withdrew his hearing request. In June 2010, the Board remanded the Veteran's claims for further development, specifically to obtain Social Security records and to have the Veteran undergo a new VA examination. The development ordered by the Board has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. The evidence does not indicate that the Veteran currently suffers from a separate, ratable bilateral hip disability. 2. The Veteran's current disabilities of the cervical spine (chronic cervical spine strain with degenerative disc disease), lumbar spine (chronic thoracolumbar spine strain with degenerative disc disease and left lower extremity sciatica), left and right knees (bilateral knee patellar tendonitis/patellofemoral syndrome), and left and right ankles (bilateral ankle strains with synovitis) were not affirmatively shown to have had onset during an honorable period of service; and the disabilities are not related to an injury, disease, or event during the Veteran's honorable period of service. CONCLUSIONS OF LAW 1. The criteria for service connection for disability of the cervical spine, chronic cervical spine strain with degenerative disc disease, have not been met. 38 U.S.C.A. §§ 1131, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2013). 2. The criteria for service connection for disability of the lumbar spine, chronic thoracolumbar spine strain with degenerative disc disease and left lower extremity sciatica, have not been met. 38 U.S.C.A. §§1131, 5107(b); 38 C.F.R. § 3.303 (2013). 3. The criteria for service connection for a left hip disability have not been met. 38 U.S.C.A. §§ 1131, 5107(b); 38 C.F.R. § 3.303 (2013). 4. The criteria for service connection for a right hip disability have not been met. 38 U.S.C.A. §§1131, 5107(b); 38 C.F.R. § 3.303 (2013). 5. The criteria for service connection for disability of the left knee, knee patellar tendonitis/patellofemoral syndrome, have not been met. 38 U.S.C.A. §§ 1131, 5107(b); 38 C.F.R. § 3.303 (2013). 6. The criteria for service connection for disability of the right knee, knee patellar tendonitis/patellofemoral syndrome, have not been met. 38 U.S.C.A. §§ 1131, 5107(b); 38 C.F.R. § 3.303 (2013). 7. The criteria for service connection for disability of the left ankle, ankle strain with synovitis, have not been met. 38 U.S.C.A. §§ 1131, 5107(b); 38 C.F.R. § 3.303 (2013). 8. The criteria for service connection for disability of the right ankle, ankle strain with synovitis, have not been met. 38 U.S.C.A. §§ 1131, 5107(b); 38 C.F.R. § 3.303 (2013). The Veterans Claims Assistance Act of 2000 (VCAA) Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. A June 2006 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b)(1). 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). The claim was subsequently readjudicated, most recently in a June 2013 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran's Social Security Administration disability determination, and the records considered in that determination, have also been obtained. 38 C.F.R. § 3.159 (c) (2). The Veteran underwent VA examinations in August 2006 and July 2010, and a VA opinion was obtained in March 2012. The August 2006 and July 2010 examinations are adequate for diagnostic purposes, but not the opinions are inadequate. The VA opinion in March 2012 however is adequate. There is no indication in the record that any additional evidence, relevant to the claims, is available. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Principles of Service Connection Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C.A. § 1131 (peacetime service). Generally, to establish entitlement to VA disability compensation, a Veteran must show: (1) a present disability; (2) an 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. All three elements must be proved. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). A discharge or release from active service under conditions other than dishonorable is a prerequisite to entitlement to VA pension or compensation benefits. 38 U.S.C.A. § 101(18); 38 C.F.R. § 3.12(a). Under 38 C.F.R. § 3.12(c), one of the specified reasons for barring benefits include when a service member was discharged by reason of the sentence of a general court-martial. Further, an acceptance of an undesirable discharge to escape trial by general court-martial is also considered to be a discharge under dishonorable conditions. 38 C.F.R. § 3.12(d). A discharge or release from service under conditions specified in 38 C.F.R. § 3.12(c) and (d) is a statutory bar to the payment of benefits, unless it is found that the person was insane at the time of committing the offense causing such discharge. 38U.S.C.A. § 5303(b); 38 C.F.R. § 3.12(b). An insane person is one (1) who, while not mentally defective or constitutionally psychopathic, except when a psychosis has been engrafted upon such basic condition, exhibits, due to disease, a more or less prolonged deviation from his normal method of behavior; or (2) who interferes with the peace of society; or (3) who has so departed (become antisocial) from the accepted standards of the community to which by birth and education he belongs as to lack the adaptability to make further adjustment to the social customs of the community in which he resides. 38 C.F.R. § 3.354(a). Evidentiary Standards VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). As the Veteran has peacetime service only, the provisions pertaining to combat in 38 U.S.C.A. § 1154(b) do not apply. Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competency is a question of fact, which is to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. 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 Veteran. 38 U.S.C.A. § 5107(b). Facts The Veteran served on active duty from July 1980 to May 1986. His service personnel records show that he was granted an honorable discharge on June 30, 1983, and he immediately reenlisted on July 1, 1983. In April 1985, the Veteran pleaded guilty in a Court Martial to wrongful distribution of marijuana. He was sentenced to be confined for 18 months and to be discharged with a bad conduct discharge. His sentence was upheld in November 1985, and he was granted parole in March 1986. The Veteran has sought to have the character of his discharge upgraded to honorable. In a July 1998 decision from the Army Board for Correction of Military Records, the Veteran's application to upgrade his discharge was denied. The Veteran's service personnel records also show that he was awarded the Parachutist Badge. These records show that the Veteran completed 13 jumps with jumps 6 to 13 completed during the second period of service. The Veteran's service treatment records show that, in September 1985, the Veteran sought treatment for bilateral knee pain with a burning sensation. History included injuries from parachute jumps. The assessment was left knee tendonitis. In September 1985 X-rays of the left knee showed no evidence of fracture, dislocation, or other bony abnormalities. There is no other evidence in the Veteran's service treatment records, pertaining to neck, back, knees, or ankles. After service in April 1998, R.D.H., MD, described the Veteran as having chronic low back pain. VA records show that the Veteran had intermittent complaints regarding his claimed conditions. In January 2004, the Veteran complained of chronic back and leg pain. In April 2004, right-sided sciatica was noted. In July 2004, X-rays degenerative changes of the lumbar spine. In August 2004, the Veteran complained of left knee pain. In November 2005, a MRI showed degenerative disc disease. In March 2006, the diagnosis was degenerative disc disease of the cervical and lumbar segments of the spine. History included "168 jumps" with an airborne unit and that the high impact activity could be the cause of the multilevel degenerative disc disease and degenerative joint disease. Private treatment records from Kaiser Permanente show that, in June 2004, the Veteran had arthritic changes in ankles and feet. In statements, the Veteran and other witnessed asserted that the claimed conditions were due to his service as a paratrooper. In April 2006, the Veteran asserted that his numerous jumps as a paratrooper greatly contributed to his claimed conditions. In May 2006, the Veteran stated that he injured his back during service. He attributed his pain in the ankles, knees, hips, back, and neck to active service as a paratrooper. In June and in July 2006, the Veteran, his wife, and a friend attributed the Veteran's current musculoskeletal complaints to service. On VA examination in August 2006, the Veteran complained of injuries to his ankles, knees, back, and neck due to his parachute jumps. The Veteran denied any pain in the hips. The diagnoses were degenerative disc disease of the cervical and thoracolumbar spine, early degenerative joint disease of knees, and peripheral edema of the ankles due to hepatitis C. Regarding etiology, the VA examiner stated that he could not say without resorting to speculation whether the Veteran's current conditions were related to service. In May 2008 in his substantive appeal, the Veteran stated that he injured himself while jumping during his honorable period of service. On VA examination in July 2010, the Veteran stated that he was a paratrooper and that his claims were related to his airborne training with many jumps with improper landings. The VA examiner noted that the Veteran's complaints of knee pain in 1985. The diagnoses were chronic cervical spine strain with degenerative disc disease, chronic thoracolumbar spine strain with degenerative disc disease and left lower extremity sciatica, bilateral knee patellar tendonitis/patellofemoral syndrome, and bilateral ankle strains with synovitis. With regard to the Veteran's claimed hip condition, the VA examiner concluded that the Veteran did not suffer from an independent hip disability, rather the hip complaints were related to the low back disability. The VA examiner concluded hat the Veteran's current bilateral knee condition was directly related to service and that the disabilities of the cervical spine, lumbar spine, and ankles could be due to the increased stress across the musculoskeletal system from parachute jumps. The VA examiner concluded that it was at least as likely as not that the Veteran's spinal and ankle disabilities were related to active service. In March 2012, the VA examiner revised his opinion, stating that the previous opinion was based on the assumption that the Veteran's service was honorable from 1983 to 1986. With the correct facts, however, the VA examiner noted that the Veteran's service treatment records from his period of honorable service contained no relevant complaints of the neck, back, hips, knees, or ankles. The examiner stated that the Veteran described several weeks of knee pain in 1985, during his period of dishonorable service. The VA examiner concluded that it was less likely than not that the Veteran's current conditions were related to his honorable period of service. Ina July 2013, the Veteran's representative argued that there is no conclusive proof that the Veteran's first five parachute jumps did not subject him to the wear and tear, resulting in the claimed disabilities. Analysis On VA examination in July 2010 VA, the diagnoses were chronic cervical spine strain with degenerative disc disease, chronic thoracolumbar spine strain with degenerative disc disease and left lower extremity sciatica, bilateral knee patellar tendonitis/patellofemoral syndrome, and bilateral ankle strains with synovitis, which satisfied the first element of service connection, evidence of current disability. The evidence does not show that the Veteran has a current bilateral hip disability. On VA examinations in August 2006 and in July 2010, the VA examiners found that the Veteran's hip complaints were actually associated with the back disability, which extended to the area of the right sacroiliac joint. In July 2010, the VA examiner stated that the Veteran did not suffer from an independent hip disability, rather the hip complaints are related to low back disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As the evidence indicates that the Veteran does not have a bilateral hip disability, the claims of service connection are denied. As for the second element of service connection, an in-service incurrence of a disease or injury, he Veteran's service treatment records do detail complaints for bilateral knee pain and left knee tendonitis was documented in September 1985. The service treatment records do not show any neck, back, or ankle abnormalities. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). The evidence from the July 2010 VA examination did link the Veteran's conditions to his active service though to the period of dishonorable service, as discussed below. The Veteran's claims fail, however, as the most probative evidence of record links the current disabilities to period of dishonorable service. In May 1987 in an administrative decision, VA determined that the Veteran was eligible for benefits for his period of honorable period of service, dating from July 1980 to June 30, 1983. However, because of the Veteran's court martial and his bad conduct discharge, the second period of service was a complete bar to VA benefits based on any disability incurred during the period of dishonorable service. In March 2012, the VA examiner concluded that it was less likely than not that the Veteran's current conditions were related to the period of honorable service. The VA examiner noted that the service treatment records for the period of honorable service were negative for any complaint relating to neck, back, hips, knees, or ankles, rather the sole entry pertained to the knees in September 1985 during the period of dishonorable service, two years after the initial period of honorable service. The VA examiner concluded that the current disabilities were less likely than not related to the period of honorable service. The VA examiner had earlier offered a positive nexus opinion, but the opinion is afforded no weight as the VA examiner retracted the opinion because it was based on an inaccurate factual premise. Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). As for the opinion of the VA health care professional in March 2006, that the high impact activity, "168 jumps," could be the cause of multilevel degenerative disc disease and degenerative joint disease. For two reasons, the Board affords the opinion less weight than the opinion of the VA examiner in March 2012. First, the Court of Appeals for Veterans Claims has held that a speculative opinion by a medical professional cannot provide the degree of certainty required for medical opinion. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (by using the term "could," without supporting clinical data or other rationale, doctor's opinion simply was too speculative to provide the degree of certainty required for medical opinion); see also Bostain v. West, 11 Vet. App. 124, 127 (1998) (a medical opinion expressed in terms of "may," also implies "may or may not" and therefore is too speculative to establish a plausible claim (citing Obert v. Brown, 5 Vet. App. 30, 33 (1993))); McLendon v. Nicholson, 20 Vet. App. 79, 85 (2006) (speculative medical opinion as to causation cannot establish a medical nexus to service). The VA health care professional's opinion employed the term "could," which is too speculative to serve as a nexus opinion in the Veteran's favor. Secondly, the opinion is based on an inaccurate factual premise. See Reonal, 5 Vet. App. at 460-61. The record does not show that the Veteran completed "168" jumps as relied on in the opinion. And the VA health care professional did not distinguish the two periods of service and whether the conditions related to the period of honorable service. As for the Veteran statements and the other lay statements that the Veteran's current conditions are related to the period of honorable period of service, the Veteran and other lay witnesses are competent to offer an opinion on a simple medical condition. However a lay opinion is limited to inferences that are rationally based on perception or capable of lay observation and does not require specialized education, training, or experience. Here, the medical question of causation is not a simple medical one that can be answered by the Veteran or the other witnesses based on inferences gained by personal knowledge, because the medical question falls outside the realm of common knowledge of a lay person. And no factual foundation has been established to show that the Veteran or other lay witnesses are otherwise qualified through specialized education, training, or experience to competently analyze the probable cause of the Veteran's musculoskeletal disabilities. As the lay opinions are not competent evidence, the opinions are not admissible as evidence and cannot be considered as evidence favorable to the claim. The Veteran's representative argued that service connection was still appropriate for the Veteran's disabilities, stating that there was no conclusive proof that the Veteran's first five parachute jumps did not subject him to the wear and tear, resulting in the claimed disabilities. The VA examiner in the opinion in March 2012 provided a detailed analysis of why the Veteran's current disabilities were more likely related to the period of dishonorable service, noting that the Veteran did not complain of any musculoskeletal conditions during the period of honorable service. To the extent there is evidence of degenerative joint disease, degenerative joint disease was not manifested within a year of the period honorable of service, and service connection on a presumptive basis for degenerative joint disease is not warranted. 38 U.S.C.A. § 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). As the preponderance of the evidence is against the claims for service connection; there is no doubt to be resolved, and service connection for disabilities of the neck, back, hips, knees, hips, and ankles is not warranted. ORDER Service connection for a cervical spine disability is denied. Service connection for a low back disability is denied. Service connection for a left hip disability is denied. Service connection for a right hip disability is denied. Service connection for a left knee disability is denied. Service connection for a right knee disability is denied. Service connection for a left ankle disability is denied. Service connection for a right ankle disability is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs