Citation Nr: 1338859 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 10-48 878 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for a bilateral knee disability. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD G. E. Wilkerson, Counsel INTRODUCTION The Veteran served on active duty from May 1946 to June 1947. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decisions by the Department of Veterans Affairs (VA) Regional Offices (RO) in Houston, Texas. In an April 2013 rating decision, the RO granted service connection for bilateral hearing loss and tinnitus. As this represents a full grant of these matters previously on appeal, they are no longer before the Board. A review of the Veteran's Virtual VA and VBMS electronic claims file reveals additional VA outpatient treatment records dated through January 2013. These were reviewed by the RO prior to the April 2013 supplemental statement of the case and by the Board prior to issuing this decision. 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's current low back disorder did not manifest in service, arthritis was not manifested within one year of service, and a low back disorder is unrelated to service. 2. The Veteran's current bilateral knee disorder did not manifest in service, arthritis was not manifest within one year of service, and a bilateral knee disorder is unrelated to service. CONCLUSIONS OF LAW 1. A low back disability was not incurred in or aggravated by service and arthritis may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). 2. A bilateral knee disability was not incurred in or aggravated by service and arthritis may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a 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). In a December 2007 pre-rating letter, the RO notified the Veteran of the evidence needed to substantiate the claims for service connection. This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran has substantiated his status as a veteran. The Veteran was notified of all other elements of the Dingess notice, including the disability rating and effective date elements of his claims, in the December 2007 letters. The Board further finds that VA has complied with the duty to assist by aiding the appellant in obtaining evidence. In this case, VA obtained all of the identified post-service private and VA treatment records. The Veteran was also provided with a VA examination in September 2012 as to the nature and etiology of the claimed disabilities on appeal. Because the examiner reviewed the claims file, interviewed and examined the Veteran, and provided an opinion with a supportive rationale, the Board finds that the examination is adequate. The record reflects that the Veteran's service treatment records have not been obtained. In February 2008, the National Personnel Record Center (NPRC) informed the RO that the Veteran's service treatment records were likely destroyed in a fire. The Court has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule where applicable. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Because of missing records, the analysis below has been undertaken with this heightened duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). In February 2008, the RO sent a letter to the Veteran informing him of the unavailability of these records and asking him to submit any pertinent records in his possession. In April 2010, the RO again requested the Veteran's service treatment records from the NPRC, which indicated that the Veteran's complete organizational unit from the time of the alleged injury was needed to perform a search for the records. The Veteran was subsequently called to inform him of the unavailability of these records and of alternative evidence needed. He indicated that he never went to sickbay or any treatment facility during service. In September 2010, the RO made a formal finding that the Veteran's service treatment records were unavailable for review. The Board finds that all potential avenues have been exhausted to attempt to locate service personnel and treatment records pertinent to the Veteran. In addition, the Veteran has been notified several times regarding the absence of his records and has indicated that he did not seek treatment during service and that he did not have any records to submit. Further efforts to locate these records would be futile. Therefore, the Board finds that VA's duty to assist has been met. The Board acknowledges the Veteran's September 2012 statement to the effect that the September 2012 VA examination was inadequate. In this statement, the Veteran wrote that he did not initially identify all the places where he experienced pain on a chart of the human body, only noting his back and not his knees, hips, and neck. However, given that the Veteran subsequently discussed his knee pain, we find the initial report of pain locations inconsequential. The other locations of pain are not relevant to the current appeal. The Veteran also indicated that he did not mention all the names of his treatment providers following service to the examining physician. However, given that the VA examiner did not base his opinion solely on the lack of treatment following discharge from service, the Board also finds that does not render the opinion inadequate for adjudication purposes. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claims on appeal are thus ready to be considered on the merits. II. Analysis The Veteran contends that he is entitled to service connection for a low back disability and bilateral knee disability, as he believes that these current disabilities stem from initial injuries incurred in service as a result of parachute jumping duties. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. However, 38 C.F.R. § 3.303(b), applies to only those chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 38 U.S.C.A. § 1101. With respect to the current appeal, this list includes arthritis. See 38 C.F.R. § 3.309(a). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). However, in order for the presumption to apply, the evidence must indicate that the disability became manifest to a compensable (10 percent) degree within one year of separation from service. See 38 C.F.R. § 3.307. The Board notes that the provisions of 38 U.S.C.A. § 1154(b) do not apply, as it has not been claimed that the disabilities were incurred while engaging in combat. As noted above, the Veteran's service treatment records are unavailable. The Veteran has indicated that he joined the Airborne Division with the prospect of making additional jump pay. He noted that, after qualifying jumps, he had to make maintenance jumps every 3 months to keep jump status. During his final jump, he reportedly went out of the plane incorrectly and landed awkwardly which caused his knee and back problems. He indicated that he did not go to sick bay, and had a friend who was a medic give him some anti-inflammatory pills to treat his pain. The Veteran further noted that he did not report any problems at discharge since he was told it would take an additional two to three weeks to be discharged. The Veteran indicated that he went to a chiropractor after service for treatment of a slipped disc caused by the parachute jump injury. He has indicated that he was treated by a number of physicians over the years, though he has not specified what disability he sought treatment for or the type of treatment provided. The Veteran also submitted copies of letters to a friend, H. P., written while he was in service in which he addresses his duties as a paratrooper with the Airborne Division. A statement from the Veteran's brother, D. B., reflects that he knew that the Veteran received a back and knee injury as the result of a parachute jump. He indicated that he remembered the Veteran's report of back and knee pain following his discharge from service. He noted that the Veteran went to see a physician for back treatment following service. A November 2004 chiropractor report reflects that the Veteran presented with complaints of back pain. He noted that he had experienced this pain for a long time. With respect to accidents, the Veteran reported that he fell off of a ladder in 1996, but reported no other injuries. He reported a past history of a slipped disk affecting the right leg. The Veteran presented for treatment again in October 2005 after he stepped in a hole with his left foot and experienced pain across the low back. A 2006 private treatment report reflects that the Veteran complained of bilateral knee pain. On inspection of the knees, there were well-healed medial incisions over the proximal tibia, which the Veteran indicated was from an infection he had as a child, which was lanced in multiple places. After examination, an impression of right knee osteoarthritis was indicated. An August 2007 VA outpatient treatment report reflects that the Veteran reported chronic back and knee pain, which he indicated began in service. A May 2008 VA outpatient treatment report reflects an assessment of diffuse degenerative joint disease. An April 2010 VA outpatient treatment report reflects a complaint of right knee pain with no history of trauma. In May 2010, the Veteran presented with complaints of bilateral knee pain. He indicated that he experienced a loud and painful pop to the right knee when he sat on a low chair. An x-ray of the right knee revealed moderate degenerative changes with medial compartment narrowing bilaterally. Similar findings were present on the left. The Veteran complained of right knee pain again in June 2010. The Veteran indicated that he had noted bilateral knee pain over the years. He indicated that he hurt his right knee a few weeks prior when sitting down on a low chair. He reported that he never had surgery or injections to the knee. He did note that as a teenager, he had a massive infection to the knee. The scars were visible. The Veteran reported that he experienced catching and giving-way sensations. A neoprene hinged brace had helped him. After examination, an assessment of bilateral knee osteoarthritis, right greater than left, was indicated. The Veteran underwent steroid injection of both knees. In October 2010, the Veteran indicated that he was still having low back pain, which he related to a bad jump while in service. Another October 2010 treatment report reflects that the Veteran continued to complain of bilateral knee pain. The Veteran underwent bilateral knee injection. Continued VA outpatient treatment records document complaint and treatment of bilateral knee pain and arthritis. On VA examination in September 2012, the Veteran reported that he began having problems with his back and knees after a single jump injury in which he injured both his back and knees. He indicated that he had jumped a total of 7 times during service. He stated that he never reported this injury, but had a hard landing. He stated that he thought the right knee was the one injured in service, though both knees bothered him at the time of examination. The examiner noted that there was a documented history of infection in the right knee prior to service, but that did not prevent his service or post-service activities. He indicated that he worked at a ball bearing factory after his discharge. He also stated that he was seen by a chiropractor shortly after he was discharge. He now received treatment at VA. After physical examination and x-rays, the examiner diagnosed degenerative disc disease of the lumbar spine and osteoarthritis of both knees. The examiner indicated that he reviewed the Veteran's claims file. He opined that is less likely as not that the Veteran's degenerative disc disease of the lumbar spine is related to service. In so finding, he noted that the x-ray changes and physical examination were compatible with his age and senescence. The examiner noted that the records were silent for a period of approximately 60 years that would document continued complaints or treatment, and there was no history of documented continuing complaints or treatment to indicate a chronic disabling condition. Rather, the examiner found the current changes to be compatible with the Veteran's age. The examiner also referred to medical literature indicating that degenerative disc disease is the preferred term for changes in the spine that occur with age and senescence. He also noted that calling it degenerative disease is a somewhat misleading term because these changes occurred with normal aging. As regards the diagnosed degenerative joint disease of both knees, the examiner also found this condition to be less likely as not related to service. Again, he noted that the Veteran's x-ray changes and physical examination were compatible with his age and senescence. He noted that while the Veteran believed he injured his right knee in service, both knees were involved approximately the same extent on x-ray studies with slightly greater loss of motion on the right knee. In addition, the records were silent for a period of approximately 60 years that would document continued complaints or treatment, and there was no history of documented continuing complaints or treatment to indicate a chronic disabling condition. There was also no evidence of treatment for years following service, and the Veteran was gainfully employed for many years. In sum, the record does reflect a current diagnosis of low back and bilateral knee disabilities, characterized as degenerative disc disease and bilateral knee osteoarthritis, respectively. However, given the evidence outlined above, the Board finds that the weight of the evidence is against the claims for service connection for these disabilities. The record does not document any chronic low back or bilateral knee disability until 2004, over 50 years since the Veteran's discharge from service. In addition, the passage of many years between discharge from active service and the documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Here, there is more than mere silence. For the reasons stated below, the most probative evidence of record is the September 2012 VA examination report. The only medical opinion of record is that of the September 2012 VA examiner, who had a thorough review of all pertinent evidence and stated there is no relationship among the Veteran's low back or bilateral knee disability and any circumstance of his service. The Board has also considered the Veteran's written statements, as well the statement from his brother, to the effect that his back and knee problems first manifest in service as a result of a parachute jump injury, and that he has experienced these symptoms continuously since service. The Veteran is competent to testify as to his observations, but this testimony must be weighed against the other evidence of record. See Jandreau, 492 F.3d at 1376-77; Buchanan, 451 F.3d at 1336. In this case, the Board finds the other evidence of record more probative. There is no documentation of complaints of back or knee problems for many years after service. The first record of treatment for the low back in 2004 does not reflect continuous back symptoms service or indicate prior injury in service. At that time, the Veteran gave a history of some of his symptomatology to the 1950s, which does not date any of it to service. He provided no more specific information. Likewise, the 2006 private treatment report pertaining to the Veteran's knee complaints does not reflect a history of knee problems dating back to initial injury in service. The Board finds that the Veteran's report of medical history to a treatment provider is very probative evidence on the question of when the symptomatology began. To the extent that the Veteran advances his own interpretation of his medical condition indicating that his current low back and bilateral knee disabilities are related to service, the Board acknowledges that lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). In any event, the probative value of the Veteran's general assertions in this regard is outweighed by the probative value of the specific, reasoned opinion of the physician who performed the September 2012 VA examination. The above evidence also reflects that there was neither a diagnosis of arthritis of the lumbar spine or bilateral knees within the one year appeal period or symptoms that were early manifestations of arthritis. See 38 C.F.R. § 3.307(c); Traut v. Brown, 6 Vet. App. 495 (1994) (establishing service connection on a presumptive basis does not require that a chronic disease be diagnosed within the applicable time period; rather, symptoms that manifest within this time period may subsequently be determined to have been early manifestations of a chronic disease). Therefore, entitlement to service connection for a low back or bilateral knee disability is not warranted on a presumptive basis. For the foregoing reasons, the preponderance of the evidence is against the claims for service connection for a low back disability and bilateral knee disability. The benefit-of-the-doubt doctrine is therefore not for application, and the claims must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). ORDER Entitlement to service connection for a low back disability is denied. Entitlement to service connection for a bilateral knee disability is denied. ____________________________________________ REBECCA FEINBERG Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs