Citation Nr: 1338293 Decision Date: 11/21/13 Archive Date: 12/06/13 DOCKET NO. 08-00 204 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a left knee disability. 2. Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Kalisse Anderson, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1980 to August 1983 and from August 1987 to March 1990. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran was scheduled for a Board Hearing in May 2010, but did not appear and did not indicate any desire to reschedule. As such, the Veteran's hearing request is deemed withdrawn. This case was previously before the Board in July 2011, at which time the claim was remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his claim. This case is once again before the Board for appellate consideration of the issues on appeal. The remand instructed the AOJ to make additional efforts to obtain service treatment records and to schedule the Veteran for a VA examination, both of which were done. The AOJ made a formal finding in April 2012 that the records requested were unavailable. The Veteran underwent a VA examination in January 2012. The claims were readjudicated in March 2012. Therefore, there was substantial compliance with the Board's remand instructions. FINDINGS OF FACT 1. The competent evidence of record does not indicate that the Veteran has been diagnosed with a left knee disability. 2. The Veteran's current back disability was not manifest in service and is unrelated to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disability have not been met. 38 U.S.C.A. § 1131 (2002); 38 C.F.R. § 3.303 (2012). 2. The criteria for service connection for a back disability have not been met. 38 U.S.C.A. § 1131 (2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. In Timberlake v. Gober, 14 Vet. App. 122 (2000), the Court held that the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. The Federal Circuit has also held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzalez v. West, 218 F.3d 1378 (Fed. Cir. 2000). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of an in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Service connection may also be established by chronicity and continuity of symptomatology. See 38 C.F.R. § 3.303(b). Continuity of symptomatology may establish service connection if a claimant can demonstrate (1) that a condition was "noted" during service; (2) there is post-service evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). "[S]ymptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496. Left Knee Disability The Veteran asserts entitlement to service connection for a left knee disability related to active service. Specifically, he asserts that he injured his left knee while playing basketball at the field house at Fort Knox. A review of the Veteran's service medical records shows that the Veteran was seen twice for knee pain, in March and May 1981, more than 30 years ago. The treatment notes from the May 1981 visit state that there was no pain on motion. See May 1981 Service Treatment Record. After May 1981, there are no further service treatment notes regarding the Veteran's left knee. Importantly, in 1987, the Veteran re-enlisted in the Army. On his report of medical history, which is signed by the Veteran, he did not report any swollen or painful joints. See May 1987 Report of Medical History. On the Veteran's re-enlistment medical examination, the examiner found the Veteran's lower extremities normal upon clinical evaluation, providing evidence against the claim. See May 1987 Report of Medical Examination. Regardless of whether the Veteran injured his left knee in service, there is no competent evidence of a current left knee disability. A February 2007 VA examination record notes the Veteran received x-rays of both knees, which were interpreted by a radiologist as being unremarkable with no abnormalities identified. The radiologist stated, "views of both knee joints are normal." See February 2007 VA Examination. In January 2012, the Veteran was afforded an additional VA examination and the examiner gave no diagnosis of a left knee disability and noted that x-rays of his left knee were normal. See January 2012 VA Examination. While the Veteran has consistently reported left knee pain, pain is not, in and of itself, a "disability" for the purposes of service connection. To prevail on the issue of service connection, there must be medical evidence of a current disability at some point during the pendency of the claim. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997) (a 'current disability' means a disability shown by competent medical evidence to exist at the time of the award of service connection); Brammer v. Derwinski, 3 Vet. App. 223 (1992) (in the absence of proof of a present disability, there can be no valid claim for service connection as Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability). In any event, even if the Board finds the Veteran has a current knee disability, the best evidence in this case indicates no problems following the injury the Veteran has cited, providing more highly probative evidence against this claim that outweighs the Veteran's lay statements of a knee problem that has existed since the 1981 knee injury. The Board concludes that a preponderance of the evidence is against the claim for service connection for a left knee disability. The benefit of the doubt rule does not apply and service connection for a left knee disability is not warranted. Back Disability The Veteran maintains he suffers from a back disability as a direct result of his active service. Specifically, he contends he injured his back jumping off an APC during field training at Fort Hood sometime in 1987 or 1988. While the evidence of record reveals that the Veteran currently suffers from a back disability, diagnosed as degenerative disc disease, the competent, probative evidence of record does not etiologically link the Veteran's current disability to his service or any incident therein. The Veteran's service treatment records have two entries regarding his back. In May 1982, the Veteran reported recurring back pain. The examiner reported full range of motion, no tenderness or muscles spasms. See May 1982 Service Treatment Record. In May 1988, the Veteran was seen for back pain, but was treated for gastrointestinal issues and an ulcer. See May 1988 Service Treatment Record. However, the Veteran's service treatment records are silent regarding the Veteran's claim that he injured his back jumping off an APC while stationed at Fort Hood. VA service treatment records show that the Veteran began complaining of back pain intermittently starting in 2003. In February 2007, the Veteran underwent a VA examination of the spine that included a review of his back by a radiologist, noting that the Veteran had narrowing at the L4/5, no compressions, the alignment of the spine is unremarkable and that the posterior compartment was well within normal limits. See February 2007 VA Examination. The Veteran underwent another VA examination in January 2012 to determine if there was an etiological link between the Veteran's current diagnosis of his back disability and his active service. The examiner noted that the Veteran has "typical diffuse age acquired mild degenerative disk [sic] disease of the lumbar spine." The examiner concluded that it was less likely than not that his back disability was incurred in service or was caused by the claimed in-service injury. See January 2012 VA Examination. In addition, there is no continuity of symptomatology in the instant case. In this regard, the Board observes the Veteran began complaining of his back pain on and off since 2003 and was first diagnosed with a back disability in February 2007, a period of over 16 years since his separation from service. The Board may, and will, consider in its assessment of service connection the passage of a lengthy period of time wherein the Veteran has not complained of the malady at issue. 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); see also Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc). In sum, the Board finds that there is no evidence of a chronic back disability shown in-service. The evidence of record also does not support the Veteran's contention that he has suffered a continuity of symptomatology since separation from active service. The threshold question therefore is whether there is sufficient medical evidence to establish an etiological link between the Veteran's current back disability and his active service. As noted above, the Veteran underwent two VA examinations and both examiners, after reviewing the Veteran's claim folder, including service treatment records, and physically examining the Veteran, rendered a diagnosis of degenerative disc disease. However, given the lack of an in-service diagnosis or evidence of an in-service injury, and the absence of any records indicating a back condition until approximately 2003, the VA examiner in January 2012 gave a negative etiological opinion. The Board acknowledges that the Veteran claims that he suffers from a back disability that is etiologically related to his active service. However, as a layperson, the Veteran is not competent to give a medical opinion on the diagnosis or etiology of a condition. Lathan v. Brown, 7 Vet. App. 359 (1995). Thus, while the Veteran is competent to report (1) symptoms observable to a layperson, e.g. pain; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, he is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Consequently, lay assertions of a medical diagnosis or etiology cannot constitute evidence upon which to grant the claim for service connection. Lathan, 7 Vet. App. at 365. The Veteran's statements have been carefully considered, but they are simply outweighed by the medical opinions cited above. In sum, there is no competent medical evidence included in the record to support the Veteran's assertions that his currently diagnosed back disability is etiologically related to his active service. The lack of complaints during service regarding an in-service diagnosis or injury, as well as the absence of any medical evidence of a diagnosis or treatment until many years after service is also probative evidence against the claim for direct service connection. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for a back disability, and the benefit of the doubt rule does not apply. See 38 U.S.C.A. § 5107 (2002). Duties to Assist and Notify When VA receives a complete or substantially complete application for benefits, it must notify the claimant of (1) the information and evidence not of record that is necessary to substantiate a claim, (2) which information and evidence VA will obtain, and (3) which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (2002). See Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran received notification prior to the initial unfavorable agency decision through a December 2006 letter. The Veteran's claim was subsequently readjudicated, most recently in a June 2012 supplemental statement of the case. The duty to notify the Veteran was satisfied under the circumstances of this case. 38 U.S.C.A. § 5103. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A (2002); 38 C.F.R. § 3.159 (2012). Service treatment records have been associated with the claims file. All post-service treatment records and reports identified by the Veteran have also been obtained, aside from the Ireland Army Community Hospital records. These records were requested multiple times with no avail, and the Appeals Management Center determined that the records for the period of August 1983 to August 1987 and since March 1989 are unavailable. Any further attempts to obtain these records would be futile. The Veteran has not identified any additional records that should be obtained prior to a Board decision. Therefore, VA's duty to assist the Veteran in obtaining any additional records has been satisfied. See 38 C.F.R. § 3.159(c)(4). In this regard, it is important for the Veteran to understand that the Board has assumed the injuries cited above did, in fact, occur, therefore, the loss of these records is of limited importance. The critical question in this case what not the injuries in service, but whether the Veteran has a current disability in 2013 (regarding the knee) and whether the current back problem is related to the injury the Veteran has cited. The Veteran was afforded a VA examination in January 2012. See 38 U.S.C.A. § 5103A; see also 38 C.F.R. § 3.159(c)(4); Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The Board finds the VA examination adequate for the purposes of the present claim, as it involved a review of the Veteran's pertinent medical history as well as a physical examination and provides a discussion of the relevant symptomatology. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the fullest extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; see 38 C.F.R. § 3.159. ORDER Service connection for a left knee disability is denied. Service connection for a back disorder is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs