Citation Nr: 1338787 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 11-07 227 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for a left knee disability. 3. Entitlement to service connection for a left leg disability. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The Veteran had active military service from April 1965 to March 1967. This appeal comes to the Board of Veterans' Appeals (Board) from a June 2009 rating decision. In July 2012, the Veteran's claim was remanded by the Board. The directed development has been completed, and because the Board's order was fully complied with, there is no prejudice for the Board to proceed. See Stegall v. West, 11 Vet. App. 268 (1998). As noted in the remand, in August 2011, the Veteran testified at a Travel Board hearing. A transcript of that hearing has been associated with the Veteran's claims folder. Subsequent to the hearing, the judge who conducted the hearing retired from the Board. In May 2012, the Board sent the Veteran a letter informing him of this and asking him if he wished to attend another hearing before a Veterans Law Judge who would render a determination in his case. He was further informed that if no response was received that it would be assumed that he did not want another hearing and that a decision on his claim would be made. No response has been received from the Veteran requesting another hearing. Accordingly, no new hearing will be provided in this matter pursuant to 38 C.F.R. § 20.707. The undersigned has reviewed the hearing. In reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. In so doing, the Board discovered that subsequent to the issuance of the January 2013 supplemental statement of the case, additional VA treatment records were added to the Virtual VA system. Although this evidence was not accompanied by a waiver of RO review, a review of this evidence shows that none of the records are relevant and material to the basis for the Board's decision regarding the back, knee and leg claims. Therefore, this evidence is not "pertinent" as defined at 38 C.F.R. § 20.1304(c) to the issue before the Board, and a remand for RO consideration is not required. FINDINGS OF FACT 1. The evidence renders it less likely than not that the Veteran's current back disability either began during or was otherwise caused by his military service. 2. Symptoms of a left knee disability were not chronic in service; were not continuous since service; and did not manifest to a compensable degree within one year of service separation; and the Veteran's currently diagnosed left knee disability is not causally or etiologically related to his military service. 3. The evidence of record does not establish that a left leg disability is either causally or etiologically related to the Veteran's military service. CONCLUSIONS OF LAW 1. Criteria for service connection for a back disability have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303 (2013). 2. Criteria for service connection for a left knee disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 3. Criteria for service connection for a left leg disability have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). 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 shown in service or within the presumptive period, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition 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). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as sensorineural hearing loss, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). 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. Id. The Veteran asserts that he injured his back, leg and knee digging fox holes in frozen ground while in service. He indicated in his March 2009 claim that his disabilities began in service and worsened in approximately 2003. The Veteran's ex-wife wrote a letter indicating that she met him in 1966 and recalled that he had injured his back moving a refrigerator during service and had injured his left knee digging a fox hole in the dead of winter. She asserted the Veteran had lived with pain all of his life, but noted that it had gotten worse as he aged. The Veteran's ex-brother-in-law also recalled him injuring his back moving a refrigerator for the army and injuring his left knee digging a fox hole, and he recalled having conversations with the Veteran about where he had to dig the foxhole and how the ground was frozen. The Veteran also testified at a hearing before the Board in August 2011, asserting that the first time he hurt his back was moving the refrigerator in service, although he acknowledged aggravating it later on. He also recounted injuring his left knee digging a foxhole. He contended that he was denied medical treatment by his commanding officer, but recalled being sent to a private doctor, although he could not remember at the hearing if the doctor treated his left knee (of note, the VA Form 21-4142 that the Veteran completed in March 2009 to obtain records from Dr. W. indicated that he treated him for his back, hearing, and a poisonous bite. There was no mention of any left knee treatment.). The Veteran denied seeking any medical assistance for either problem in the years following service, noting that in the previous 25 years, his back and left knee began to hurt more. However, even accepting that the pain began 25 years earlier, it would place the onset of symptoms nearly 20 years after he separated from service. In effect, the Veteran at this point provides some limited evidence against his own claim. Service treatment records show that the Veteran's spine and lower extremities were found to be normal at his enlistment physical in April 1965. In February 1967, the Veteran was seen for complaints of back pain after lifting a refrigerator a day earlier. The Veteran was given heat linament and back instructions, and told to avoid lifting more than 15 pounds. He was seen two days later again complaining about back pain that started when he was lying down. Four days later, he requested to go to Scott AFB to get a profile so that he did not have to peel potatoes. Approximately two weeks later, it was noted that the Veteran had experienced trouble with his back all his life that was worse the previous month. He reported getting back pain when lifting. There was no radiation and the pain did not worsen with coughing. He was assessed with a lower back strain. On his medical history survey completed in conjunction with his separation physical in May 1967, the Veteran denied any knee or foot problems, but did note that he had experienced recurrent back pain. The medical officer indicated that the Veteran had experienced a lumbosacral strain that was non-radiating and not severe, and the Veteran's spine and lower extremities were both found to be normal on his separation physical. Following service, there is no record of any treatment for any back or lower extremity problems for a number of years; and it was noted at the Veteran's March 2009 VA examination that following service he worked as a remodeler and a carpenter. It was also noted in a Social Security Administration (SSA) treatment records from June 2007 that the Veteran had worked in 1996 as a siding contractor which he described as heavy work in that he had to lift up to 100 pounds or more and was on his feet most of the day. In 1997-98 the Veteran worked supervising mobile home manufacturing where he would occasionally help carry siding or plywood weighing approximately 50 pounds. In this job, he was on his feet 6-8 hours each day. The earliest post-service treatment records that are of record did not appear until the 2000s. At his hearing the Veteran testified that he had not sought much medical treatment over the years, and noted that records from any treatment he had received were not available. The Veteran also noted that he had been in a motor vehicle accident in the early 1980s which led to neck problems. At a VA examination in March 2009, the Veteran was diagnosed with degenerative disc disease of the back and degenerative joint disease of the knee. Degenerative joint disease is a form of arthritis and is therefore considered to be a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies to the left knee claim. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, degenerative disc disease of the back is not a "chronic disease" listed under 38 C.F.R. § 3.309(a), therefore 38 C.F.R. § 3.303(b) does not apply. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Thus, with regard to the left knee, it must be considered whether the condition was diagnosed either during service or within a year of service. However, as noted above, there is no evidence in either the service treatment records or within a year of separation that shows the presence of a chronic left knee disability. Additionally, while the Veteran and his ex-family have described an injury in service, this does not establish that a chronic knee disability was diagnosed. The Board must also consider whether the evidence establishes a continuity of symptomatology of knee problems from service. In this regard, the Veteran and his ex-family have reported that he injured his knee in service, but such is not recorded in the service treatment records and the Veteran's separation physical specifically found his lower extremities to be normal. With regard to continuity of symptomatology, the fact is that not only was the Veteran not found to have any lower extremity disability at separation, but he also specifically denied any knee problems on his medical history survey completed in conjunction with his separation physical. This is strong evidence that he did not have knee problems consistently since service. The Board acknowledges the statements made by the Veteran and his ex-family member, but notes that these statements were made decades after the Veteran separated from service, and in conjunction with a claim for benefits. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (a pecuniary interest is recognized as a factor which may affect the credibility of a claimant's statements). In May 2007, the Veteran was seen for complaints of left knee pain for several years, yet he had been out of service for approximately four decades at that time. Having weighed the evidence, the Board finds that the Veteran's specific denial of any knee problems at separation to be strong evidence that he was not experiencing any knee problems at that time; a conclusion that is strengthened by the fact that he did not mechanically deny all the listed disabilities on the survey, but rather selectively marked the several problems he was either experiencing or had experienced. This would tend to indicate that the Veteran reviewed and considered the document, and would thus suggest that if he was in fact experiencing any knee problem at that time, he would have mentioned it. Simply stated, the Veteran has provided more highly probative evidence against his own claim on this point. As such, the evidence of no knee problems, generated contemporaneously with separation, is found to be the most probative evidence of record and serves to sever any continuity of symptomatology. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by a veteran). Therefore, the 38 C.F.R. § 3.303(b) presumptions have not been met with regard to the Veteran's left knee disability. Nevertheless, service connection may be granted if the evidence establishes a nexus between a current disability and the Veteran's military service. Radiographic evidence has confirmed the presence of current left knee and back disabilities. The evidence also shows that the Veteran injured his back in service and he has testified that he injured his knee in service. However, an in-service injury alone and the presence of a current disability in the same anatomical region is not sufficient for service connection. Rather, the injury must cause the disability. The Veteran's ex-wife and ex-brother-in-law both wrote that the Veteran had experienced back and leg problems through the years. However, the fact remains that the Veteran has been diagnosed with degenerative joint disease of the knee and degenerative disc disease of the spine, conditions that are not able to be seen by the naked eye and are therefore not capable of lay observation. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Rather, the diagnosing of such disabilities is a medically complex question, because such a diagnosis involves the review of radiographic evidence, and the Veteran and his ex-family members have not been shown to have the qualifications to render such a diagnosis. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Determining the etiology of the two conditions is also a medically complex question, for which the Veteran lacks the requisite medical training to provide. VA obtained a medical opinion in March 2009 to assess the etiology of the two current disabilities. However, the examiner, who was fully versed in the Veteran's in-service and post-service medical and work histories, ultimately found that it was less likely than not that either the Veteran's left knee disability or his back disability were the result of his military service, to include any injuries therein. The examiner further explained that he believed that the Veteran's back and left knee disabilities developed over time and did not have anything to do with his military service. This opinion has not been questioned by any other medical evidence, it was rendered with full knowledge of the record. As such, it is considered to be highly probative and entitled to great weight. The Board is sympathetic to the Veteran's claim, and has carefully read and weighed the statements proffered by the Veteran and his ex-family, which is why the medical opinion was obtained. However, while the Veteran's ex-wife and brother-in-law have described back and knee pain for years, it is observed that the Veteran's back and lower extremities were found to be normal at separation, and following service, the Veteran engaged in physically demanding vocations for a number of years and was involved in a motor vehicle accident. During the decades following service, the Veteran, by his own admission, does not appear to have sought much medical treatment, but even when he did, he would describe problems as having existed for several months or several years, when the treatment was occurring decades after he had separated from service. These findings all support the medical opinion of record in this case. Thus, the evidence of record is against the Veteran's claims for service connection for left knee and back disabilities and those claims are accordingly denied. With regard to the Veteran's claim for service connection for a left leg disability, it is unclear what the exact disability is that he is seeking service connection for. In his claim, the Veteran stated that he injured his leg, knee and back digging the foxholes. At his hearing, he recalled getting bitten by something in service and receiving treatment for it, but he denied that it was still bothering him, providing some evidence against this claim. Service treatment records do note that the Veteran was treated in July 1965 for a furuncle on his left leg which was felt to be the result of an insect or spider. He underwent a surgical procedure to debride the necrotic skin, and a week later that the ulcer was observed to be healing nicely. At the Veteran's separation physical there was no mention of any residual problems, and his lower extremities were noted to be normal. At his hearing, the Veteran also denied any current problems as a result of the bite. In March 2007, the Veteran presented for treatment with complaints of left leg pain. X-rays showed no evidence of any acute fracture or dislocation of the left tibia or fibula. The Veteran was noted to have a swollen, distal leg. A Doppler study was negative for deep venous thrombosis. The Veteran was noted to have had swelling in his left leg for approximately one month, which had improved after he discontinued the use of an unloading brace. The Veteran denied any history of a recallable injury. A bone scan was performed, but no left leg disability was diagnosed. To the extent that the Veteran has reported experiencing pain in his left lower extremity no specific "left leg" disability has been diagnosed, and VA does not generally grant service connection for symptoms alone, without an identified basis for those symptoms. Rather, VA needs to identify a disability, not symptoms of a disability. Here, no specific left leg disability has been diagnosed; and, in the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Moreover, even if the Veteran were diagnosed with a current left leg disability, the fact remains that there was no evidence of a chronic left leg disability in service (he was bitten by an insect, but that injury appeared to have resolved with treatment and without residuals). There has also been no suggestion by any medical professional that the Veteran has a left leg disability as a result of his military service. And, even when the Veteran went for treatment of his left leg in 2007, decades after service, it was noted that the swelling had been present only a matter of months. Thus, even if a left leg disability were to be diagnosed, the evidence of record would strongly weigh against the conclusion that it was in any way service related. As such, the criteria for service connection for a left leg disability have not been met, and the Veteran's claim is denied. II. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in December 2008, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. The letter also informed him how disability ratings and effective dates were established. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA treatment records and SSA records have been obtained. The Veteran indicated that he was treated by a Dr. W. and a request was sent to Dr. W. requesting any records in his possession. Unfortunately, he responded that he had retired in 2003, and his clinic did not have any records for the Veteran. The RO contacted the Veteran in May 2009, but he denied having any additional information to submit and told the RO to go ahead with his claim. At his Board hearing, the Veteran testified at that in the years between service and his claim he had seen several doctors, but they were deceased or he could not remember their names. As such, no records were reasonably identified by the Veteran that are not already of record. The Veteran was also provided with a VA examination (the report of which has been associated with the claims file). The Board finds the examination was thorough and adequate, in that it provides a sound basis upon which to base a decision with regard to the Veteran's claim. The VA examiner personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability. The Veteran has not voiced any objection to the adequacy of the examination. While a VA medical opinion was not provided with regard to the Veteran's left leg, the Federal Circuit Court of Appeals (Federal Circuit) has recognized that there is not a duty to provide an examination in every case. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Rather, the Secretary's obligation under 38 U.S.C. § 5103A(d) to provide the Veteran with a medical examination or to obtain a medical opinion is not triggered unless there is an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability. See McLendon v. Nicholson, 20 Vet. App.79, 81 (2006). The record in this case is negative for any indication, other than the Veteran's own assertion, that he has a left leg disability. There is also no suggestion beyond the Veteran's assertions that a left leg disability is the result of his military service. As such, this conclusory lay statement is insufficient to trigger VA's duty to provide an examination with an opinion. See Waters, 601 F.3d 1274. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER Service connection for a back disability is denied. Service connection for a left knee disability is denied. Service connection for a left leg disability is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs