Citation Nr: 1337394 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 08-36 589 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for a neck disability. 2. Entitlement to service connection for a back disability. 3. Entitlement to service connection for a bilateral knee disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran had active service from June 1969 to May 1971. This appeal comes to the Board of Veterans' Appeals (Board) from an April 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque New Mexico. In March 2013, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO. In May 2013, the Board remanded the appeal to obtain outstanding VA medical records and provide the Veteran an examination. The VA medical records were obtained and an examination was conducted in June 2013. A review of the report of that examination shows substantial compliance with the remand directives. Dyment v. West, 13 Vet. App. 141 (1999). FINDINGS OF FACT 1. A neck disability did not have its onset during active service or within one year thereafter, and it is not causally related to service. 2. A back disability did not have its onset during active service or within one year thereafter, and it is not causally related to service. 3. A bilateral knee disability did not have its onset during active service or within one year thereafter, and it is not causally related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a neck disability have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303 (2013). 2. The criteria for service connection for a back disability have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303 (2013). 3. The criteria for service connection for a bilateral knee disability have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.326(a) (2013). Proper notice from VA must inform the claimant and representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(b) (2013); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice requirements apply to all five elements of a service-connection claim, to include Veteran status, existence of a disability, a connection between service and the disability, degree of disability, and effective date of the disability Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded should be included. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, neither the Veteran nor his representative has alleged prejudice with respect to notice. Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Veteran was notified in a December 2007 letter of the criteria for establishing direct service connection, the evidence required, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. That letter addressed all notice elements and predated the initial adjudication by the RO in April 2008. Next, VA has a duty to assist the Veteran in the development of the claims. That duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013). In this case, all necessary development has been accomplished and therefore appellate review may proceed without prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service medical records, and post-service reports of VA and private treatment and examination. The Veteran's statements in support of the claims are of record. The Board has carefully reviewed those statements and concludes that no available outstanding evidence has been identified. The Board has also reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the claims. VA provided the Veteran with an examination in June 2013 to determine the nature and etiology of his disabilities. 38 C.F.R. § 3.159(c)(4) (West 2002 & Supp. 2013). When VA provides an examination or obtains an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds the examination report to be thorough and adequate upon which to base a decision on the claims. The VA examiner personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and provided the information needed to decide the claims. A relevant opinion was provided. The Board finds the opinion to be adequate, as it was based on a review of the records in the claims file and the Veteran's own statements. The Board finds that no further notice or assistance is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2013); 38 C.F.R. § 3.303(a) (2013). Service connection may also 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 C.F.R. § 3.303(d) (2013). In this case, the disorder at issue is a chronic disease listed under 38 C.F.R. § 3.309(a) (2013). Therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a chronic disease in service or continuity of symptoms after service, the disease shall be presumed to have been incurred in service. For the 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a disorder noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b) (2013). Where a Veteran served for 90 days or more of active service and certain chronic diseases, including arthritis, become manifest to a degree of 10 percent or more within one year from the date of separation from service, the disease shall be presumed to have been incurred in service, even though there is no evidence of that disease in service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.307, 3.309 (2013). 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. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.307, 3.309 (2013). The presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.307, 3.309 (2013). Service connection requires competent evidence of (1) a current disability; (2) the incurrence or aggravation of a disease or injury during service; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Veteran asserts that he sustained injuries to his neck, back, and knees jumping from helicopters wearing a full pack during his service in the Republic of Vietnam, with several jumps made under enemy fire. He further asserts that he was treated for his disabilities by a medical corpsman but record keeping was poor, and that he has had problems with his neck, back, and knees since service. The Veteran's service separation form shows service in Vietnam from July 1970 to April 1971 and receipt of the Combat Infantry Badge which indicates participation in combat with the enemy. Thus, his reports of injuring his neck, back, and knees during service while engaging in combat with the enemy are conceded. 38 U.S.C.A. § 1154(b) (West 2002 & Supp. 2013). The Veteran's service medical records do not show any complaints, findings, or diagnoses of any neck or back disability. The service medical records show complaints of pain in both knees in December 1970 at which time he reported a history of injuring the left knee a year earlier playing football, which appears to be supported by a November 1969 treatment record. Examination showed laxity of the patella, left greater than right, and aspirin and a wrap were provided. An earlier May 1970 treatment record shows that he strained the right knee marching. He did not report any neck, back, or knee problems during his May 1971 separation examination and evaluation of the neck, spine, and lower extremities was normal. VA medical records beginning in September 2006 show that the Veteran had pain in his neck, back, and knees. At a March 2009 VA examination, the examiner provided diagnoses of degenerative changes in the patellofemoral joint areas bilaterally and degenerative spondylosis and arthritic change, and opined that the disabilities were not due to or the result of any inservice injury. The examiner noted that the Veteran did not report any back or knee problems during his discharge examination and there was no reference to any back or knee problems. As the Board found that the examiner did not provide a complete rationale for the opinions on the back and knees, and as the examiner was not asked for an opinion on the neck disability, the Board requested another examination. At a June 2013 VA examination, the Veteran reported jumping out of helicopters during service, and attributed his neck, back, and bilateral knee problems to those jumps. He stated that he reported his problems to the medics in the field who gave him pain killers. He noted that he was moved to a new location about every month and had to jump out of a helicopter at that new location, landing in elephant grass that blocked his view of the ground and sometimes hitting rocks and other things while landing. He indicated having problems in later years. After reviewing the claims file and examining the Veteran, the examiner opined that the conditions were not incurred in or caused by the claimed in-service injury or event. The examiner stated that neither the examination nor x-ray findings were commensurate with the current presentation of the knees and the spine having been substantially injured in Vietnam. The examiner stated that the current presentation was more or less normal for degenerative changes for a person of the Veteran's age. Although the Veteran may have injured his neck, back, and knees while jumping from helicopters during service, there is no objective evidence that he developed a chronic disability of the neck, back, or knees during service or within one year thereafter. His service medical records show complaints of knee pain and a finding of laxity of the patella in December 1970, but no complaints and a normal clinical evaluation of the lower extremities at his May 1971 separation examination. His service medical records do not show any neck or back problems. There are also no medical records documenting any complaints or diagnoses of a neck, back, or knee disability for many years after service. While not dispositive, the passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor that weighs against a claim for service connection. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Thus, the Board finds that the Veteran's current disabilities of the neck, back, and knees did not have their onset during active service or within one year thereafter. The Board also finds that the Veteran's current disabilities of the neck, back, and knees are not causally related to service. The June 2013 VA examiner opined that the Veteran's disabilities are not related to active service, to include the jumps out of a helicopter. Rather, the examiner indicated that the Veteran's degenerative changes were normal for a person of his age. As the opinion was based on examination of the Veteran and his documented medical history, the Board finds it to be of great probative value. Hayes v. Brown, 5 Vet. App. 60 (1993); Wood v. Derwinski, 1 Vet. App. 190 (1992). Moreover, it is the only probative opinion of record and unfortunately it is against the claims. The Board notes the Veteran's assertions, as relayed in an October 2013 statement from his representative, that the June 2013 VA examination report is inadequate. The Veteran stated that he never claimed that he "substantially injured" his neck, back, or knees during service but rather suffered minor injuries that never resolved. The Board observes that the examiner's statement indicates that current findings do not suggest significant injuries during service but rather minor injuries that resolved during service. The statement also indicates that current findings are representative of degenerative changes due to aging, which the examiner explicitly states that the findings were normal for a person of the Veteran's age. The Veteran contested the examiner's statement that he had degenerative changes that were "more or less" normal for someone his age, claiming that he should be granted benefits if the degenerative changes are anything but normal. The Board observes that "more or less" is a figure of speech used by the examiner to indicate that the extent of the Veteran's degenerative changes is within the range that is typically seen in someone his age. Thus, as indicated earlier, the Board finds that the VA examination report is adequate. A lay person is competent to give evidence about observable symptoms such as pain. Layno v. Brown, 6 Vet. App. 465 (1994). Lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). To the extent that the Veteran is claiming to have experienced continuous pain in the neck, back, and knees since active service, he is not found to be credible. He did not complain of his neck, back, and knees during his separation examination and examination at that time showed a normal neck, spine, and lower extremities. There is no medical evidence of a disorder of the back, neck, or knees after discharge until September 2006. At the June 2013 VA examination, he indicated developing problems later in life. Lastly, if he had experienced neck, back, and knee problems continuously since service, it would be reasonable to expect that he would have filed a disability claim or sought treatment much sooner than December 2007. The Board finds that the statements alleging or implying continuity of symptoms are not credible in this case. Therefore, continuity of symptomatology is not established by either the competent evidence or the Veteran's own statements. Moreover, the probative medical evidence of record does not relate the current disorders to active service. In conclusion, service connection for disabilities of the neck, back, and knees is not warranted. As the preponderance of the evidence is against the claims, the claims must be denied. 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a neck disability is denied. Service connection for a back disability is denied. Service connection for a bilateral knee disability is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs