Citation Nr: 1339008 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 10-14 142 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection a neck disability. 2. Entitlement to service connection for a bilateral knee disability. 3. Entitlement to service connection for a bilateral ankle disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran had active service from April 1980 to April 1984 and from October 1984 to June 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In June 2011, the Veteran testified at a videoconference hearing before the undersigned and a transcript of that hearing had been associated with the claims file. In February 2012, the Board remanded the appeal for additional development. In a December 2012 rating decision, the RO thereafter granted the Veteran's claims of service connection for posttraumatic stress disorder (PTSD) and tinnitus. Therefore, the Board finds that these issues are no longer in appellate status. See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997) (holding that the RO's award of service connection for a particular disability constitutes a full award of benefits on the appeal initiated by the veteran's notice of disagreement on such issue). FINDINGS OF FACT 1. The most probative evidence of record shows that the Veteran's current neck disability is not related to service. 2. The most probative evidence of record shows that the Veteran's current bilateral knee disability is not related to service. 3. The most probative evidence of record shows that the Veteran's current bilateral ankle disability is not related to service. CONCLUSIONS OF LAW 1. A neck disability was not incurred in or aggravated by active service and it may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1154(b), 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 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 active service and it may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1154(b), 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). 3. A bilateral ankle disability was not incurred in or aggravated by active service and it may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1154(b), 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). The Board finds that a letter dated in March 2008, prior to the September 2008 rating decision, provided the Veteran with notice that fulfills the provisions of 38 U.S.C.A. § 5103(a) including notice of the laws and regulations governing disability ratings and effective dates. As to the duty to assist, the Board finds that VA has secured all available and identified pertinent in-service and post-service evidence including the Veteran's available service treatment records as well as his post-service records from Dr. Linda Foster and the Nashville and Murfreesboro VA Medical Centers in substantial compliance with the Board's remand instructions. See 38 U.S.C.A. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required). In January 2009, the RO notified the Veteran that additional service treatment records of his could not be located by National Personnel Records Center (NPRC). In May 2010, the RO prepared a memorandum outlining the steps it took to locate additional service treatment records of the Veteran. In this regard, the Board notes that where, as here, "service medical records are presumed destroyed, . . . the Board's obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt is heightened." O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The cases, however, do not establish a heightened "benefit of the doubt," but rather only a heightened duty of the Board to consider the applicability of the benefit of the doubt, to assist the claimant in developing the claim, and to explain its decision when the veteran's medical records have been destroyed. The case law does not 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 appellant. Russo v. Brown, 9 Vet. App. 46 (1996). Therefore, adjudication of this appeal may go forward without these records. See Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) (the "'duty to assist' is not a license for a 'fishing expedition' to determine if there might be some unspecified information which could possibly support a claim . . . [and] this duty is limited to specifically identified documents that by their description would be facially relevant and material to the claim"). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the June 2011 Board video hearing, the Veteran was assisted at the hearing by an accredited representative and the representative and the VLJ asked questions to ascertain the extent of any in-service event or injury and whether the Veteran's current disabilities are related to his service. They also asked questions to draw out the current state of the Veteran's disabilities. No pertinent evidence that might have been overlooked and that might substantiate the claims was identified by the Veteran or the representative that was not obtained while the appeal was in remand status. The hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims for service connection. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). The Veteran was also afforded a VA examination in February 2012 which along with the April 2013 addendum is adequate to adjudicate the claims and substantially complies with the Board's remand instructions because after a review of the record on appeal and a comprehensive examination of the claimant the examiner provided the requested opinion as to the origins of the Veteran's current neck, knee, and ankle disabilities which opinions are supported by citation to relevant evidence found in the claims file. See 38 U.S.C.A. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall, supra; D'Aries, supra; Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). In summary, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A or 38 C.F.R. § 3.159. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the appeal. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). In adjudicating the claims below, the Board has reviewed all of the evidence in the Veteran's claims file including those found in VA's electronic file system. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the Veteran's claims folder shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Claims The Veteran contends that the disabilities at issue were incurred during his more than 17 years of active service. Specifically, at the videoconference hearing in June 2011, the Veteran testified that he injured his neck during a training exercise in jump school in 1991, when he landed on uneven ground and fell backwards striking his head, and said that he's had chronic stiffness in his neck ever since. He also asserted that his chronic knee and ankle problems are the result of his many years marching with 120 pounds of equipment on his back and jumping out of airplanes. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); See also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where all the evidence establishes it was incurred in service. 38 C.F.R. § 3.303(d). Also, specifically enumerated disorders, including arthritis, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309. In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Klekar v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). Initially, the Board finds that the record does not establish service connection under 38 C.F.R. § 3.303(a). In this regard, service personnel records showed that the Veteran was assigned to a field artillery unit as well as an airborne unit during his years of service and was authorized to wear the Parachutist Badge. Moreover, service treatment records showed that in June 1991 he was treated for a sore neck after hitting his head during a jump the previous week; in November 1996 for a mild right ankle sprain after falling down stairs; in June 1997 for left knee pain related to a sports injury; and at the March 1998 separation examination the claimant reported a history that included having broken bones and being treated for a right knee injury. However, at an earlier November 1995 examination the Veteran denied a history of swollen or painful joints, lameness, or a trick or locked knee and on examination his neck and lower extremities were normal. Likewise, at the March 1998 separation examination he specifically denied any history of arthritis, reported that the bone he broke was a finger, and on examination the neck and lower extremities were normal. Therefore the Board finds, as the November 1995 examiner and March 1998 separation examiner must have found that any earlier neck, knee, and/or ankle injury did not result in a chronic disability. The Board also finds the opinions by these examiners more probative than the lay claims from the Veteran regarding sustaining chronic neck, knee, and ankle disabilities as a result of his documented in-service injuries and his training as a parachutist. See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). Likewise, because the post-service record does not show the Veteran being diagnosed with arthritis in either the neck, knees, and/or ankles in the first post-service year the Board finds that 38 C.F.R. §§ 3.307, 3.309(a) is of no benefit to him in establishing service connection for these disabilities. Post service, the record does not show the Veteran complaining and/or being diagnosed with a disability of the neck, knees, and ankles (which at that time was diagnosed degenerative joint disease) until 2012, 14 years after his 1998 separation from military service. As to the lay claims from the Veteran and his representative regarding continuity of symptoms with the inference that this represented the onset of disability in service, the Board finds that this outweighed by the in-service examinations which revealed normal neck and lower extremities and the post-service medical record which is negative for the diagnosis of neck, knee, and/or ankle disabilities until over a decade after his separation from military service. Lastly, the record does not contain a competent and credible medical opinion establishing such a relationship between the claimed disabilities and service. In fact, the March 2012 VA examiner opined that they were less likely than not incurred in or caused by the claimed in-service injuries because no significant injuries are noted in the service treatment records that would be anticipated to cause further injury or the early onset of arthritis in this Veteran's neck, knees, and ankles. Supporting this conclusion was that the findings on X-ray are consistent with the Veteran's age, and the examiner was unaware of any evidence in the medical literature that shows increased risk for individuals who have performed parachuting without injury to be at risk for early or more severe arthritis. Therefore, it was concluded it is less likely than not that the claimed disabilities are due to his history of parachuting and it is more likely due to the normal aging process. These medical opinions are not contradicted by any other medical evidence of record. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Moreover, the Veteran and his representative are not competent to provide a nexus opinion because such an opinion requires medical expertise which they do not possess. See Jandreau, supra. Under these circumstances, the Board finds that a basis upon which to establish service connection for neck, knee, and ankle disabilities has not been presented. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309; Also see Hickson, supra. In reaching the above conclusions, the Board also considered the doctrine of reasonable doubt. 38 U.S.C.A. § 5107(b). However, as the most probative evidence of record is against the claims; the doctrine is not for application. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED ON NEXT PAGE) ORDER Service connection for a neck disability is denied. Service connection for a bilateral knee disability is denied. Service connection for a bilateral ankle disability is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs