Citation Nr: 1340204 Decision Date: 12/05/13 Archive Date: 12/20/13 DOCKET NO. 08-07 030 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for a left knee disorder. 3. Entitlement to service connection for night sweats. 4. Entitlement to service connection for bilateral leg pain, to include as secondary to a low back disorder. 5. Entitlement to service connection for hypertension, to include as secondary to pain associated with back and knee disorders. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M.H. Stubbs, Counsel INTRODUCTION The appellant served on active duty from March 1976 to June 1976. He also had additional periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) in the Indiana Army National Guard. This matter comes to the Board of Veterans' Appeals (Board) from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine. Jurisdiction over the appellant's claims was later transferred to the Indianapolis, Indiana RO. The appellant initially requested a Board hearing on his substantive appeal VA Form 9. However, he then submitted a written statement requesting a formal RO hearing in lieu of a Board hearing. He was afforded a hearing before a Decision Review Officer in April 2009. A transcript of the testimony offered at this hearing has been associated with the record The issues of entitlement to service connection for a heart disorder and hearing loss have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The issues of entitlement to service connection for a low back disorder, bilateral lower extremities disorders, and hypertension are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. There is no competent and credible evidence the appellant has a chronic disability to account for his night sweats; or that such disability had its onset in service or is related to his periods of ACDUTRA service. 2. The preponderance of the evidence is against finding that the appellant has a left knee disorder that was incurred in, aggravated by, or otherwise related to a disease, injury, or event in service. CONCLUSIONS OF LAW 1. The criteria for service connection for a disorder manifested by night sweats have not been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 , 3.159, 3.303, 3.304, 3.307, 3.309 (2013). 2. A left knee disorder was not incurred in or aggravated by active military service, and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103A, 5107; 38 C.F.R. §§ 3.102 , 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The VA has a duty to provide notification with to respect establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159(b). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Proper VCAA notice 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; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004). This notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court 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) the Veteran status; (2) the existence of a disability; (3) a connection between the Veteran's service and the disability; (4) the degree of disability; and (5) the effective date of the disability. VA's notice requirements were satisfied by letters issued in December 2006 and February 2012. The December 2006 letter was sent prior to the initial adjudication of the Veteran's claims and explained the evidence the Veteran was responsible for obtaining, the evidence VA would obtain on his behalf, the criteria for establishing service connection, and how VA determines effective dates and disability ratings. Regarding VA's duty to assist, the appellant's service treatment and personnel records, VA treatment records, and available private treatment records are associated with his claims file, and the Veteran has not identified any relevant, available treatment records that have not been obtained. The February 2012 letter requested additional information on any outstanding records, and the Veteran did not respond to this letter. The Veteran was also provided with VA examinations and related medical opinion addressing the etiology of his night sweats and left knee arthritis, and the Board finds that the VA examinations and medical opinions are sufficient for adjudicatory purposes. The examination reports reflect that the examiner performed a sufficient medical examination of the Veteran and reviewed the Veteran's claims file in conjunction with the examination, and the medical opinion is supported by a sufficient rationale. The Veteran also testified on his own behalf and has made reasoned arguments in support of his claims through his representative and through written statements. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claims. As VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. Laws and Regulations In general, applicable laws and regulations state that service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That a condition or injury occurred in service alone is not enough; there must be disability resulting from that condition or injury. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Brammer v. Derwinski, 3 Vet. App. 223 (1992). 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). Service connection may also be granted for chronic disabilities, such as arthritis, if such are shown to have been manifested to a compensable degree within one year after the veteran was separated from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Active military, naval, or air service includes active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty, and any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. 38 C.F.R. § 3.6(a). Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Factual Background and Analysis The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that 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 claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Left Knee The appellant provided written statements and testified that he injured his left knee in Honduras in 1993. He testified that he was in Honduras during a severe storm, and that the wind tossed him through the air and he struck his knees. A review of his service treatment and personnel records reveal that the appellant served in Honduras from June 12-27, 1993. On June 26, 1993, he complained of left leg pain secondary to a strong storm blowing various items around his tent and striking his left leg. He was noted to have an ankle contusion as a result of the injury. He returned to Indiana and was seen for continued left leg pain. X-rays were noted to be negative. He had swelling of his ankle immediately after injury and ankle pain with weight-bearing. He was assessed with an ankle abrasion. The service treatment records also contain records from an August 1981 jeep accident. The appellant was a passenger in a Jeep travelling less than 5 miles per hour when it struck a log. The appellant struck his head and complained of neck and back pain shortly after the accident. While in the hospital, the following day, the appellant reported pain in his left knee as well. X-rays were again noted to be negative. An April 1982 evaluation noted a normal clinical evaluation of the lower extremities and the appellant denied a history of knee symptoms. The earliest post-service treatment record (regarding the appellant's left knee) contained in the claims file is from September 2006. The Veteran complained of injuring his left knee at work. He rotated to the left and slipped and heard a pop in his left knee. There was swelling and immediate pain. He had difficulty walking and it hurt to bend his knee or stand. X-rays revealed mild osteoarthritis and fabella. The Veteran did not report any prior medical history concerning his left knee. In January 2007, the appellant was afforded a VA joints examination. He reported that while serving in Honduras in 1993, he fell and suffered contusions to both legs and specifically his left knee. He was treated with pain medication and rest. He reported his symptoms resolved and he was able to continue service until 1996.. The examiner noted that after service, the appellant did not have any complaints of leg or knee pain, but that he began to complain of left knee pain in 2002. The appellant limped during the examination, but he favored his right leg due to sacroiliac joint pain. After physical examination, he was assessed with a contusion of the left knee in 1993, and degenerative joint disease of the left knee via x-ray results. The examiner opined the appellant's left knee arthritis was not likely related to his one-time contusion in service in 1993 because he did not have complaints prior to his release from service, and his pain started two or three years ago as a result of developing osteoarthritis. The examiner noted that a one-time contusion cannot cause arthritic changes in the knee. On an Indiana disability determination worksheet dated in March 2007, the appellant reported he had bilateral knee pain which began in the mid-1990s. Note states "suspected UA, but not radiologically confirmed." The appellant reported that physical therapy was suggested, but he could not afford such care. In April 2007, the appellant reported to a private physician that his knee pain had been occurring intermittently throughout the "years." He reported that his knee pain began when he fell on both knees during a rainstorm while serving in Honduras. He stated that since then he had intermittently twisted both knees with various activities. In adjudicating a claim, the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Board acknowledges that the Veteran is competent to give evidence about what he experiences. See Layno v. Brown, 6 Vet. App. 465 (1994). Competency of evidence, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). See also Buchanan, supra (The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. If the Board concludes that the lay evidence presented by a veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence.) Here, the Board notes that the appellant is competent to report injuries he sustained during a storm in Honduras. However, the most credible evidence weighs against finding suggest that the appellant injured his left knee in the storm. Service treatment records include a diagnosis of an ankle contusion and ankle pain and swelling after the storm in Honduras in 1993. Thus, the Board does not find the appellant's statements regarding his left knee injury and contusions to be credible as they are not supported by the complaints and clinical findings recorded at the time of the alleged injury. The first x-ray diagnosis of arthritis is more than one year after the appellant's period of active service. The service treatment records contain a complaint of left knee pain in 1981 following a Jeep accident. A 1982 periodic evaluation included a normal clinical evaluation of the lower extremities and the appellant did not complain of knee pain. There are no additional complaints of knee pain during his periods of ACDUTRA and INACDUTRA in the available record. Private treatment records obtained by the VA have a 2006 record of a work-related knee injury, and there are no prior records. Lastly, the 2007 VA examiner opined that the appellant's left knee arthritis was less likely due to a one-time knee contusion, as such a contusion could not cause arthritis. During the 2007 VA examination the appellant reported the pain from his 1993 injury resolved, and did not begin again until 2002. As there is no competent and credible evidence of continuity of symptomatology of left knee pain from service to the present, and the medical opinion of record is negative, the Board finds that entitlement to service connection for a left knee disorder is not warranted. Night sweats The appellant alleges that he has suffered from night sweats since he received a vaccination during National Guard training. During his RO hearing he testified that he was sick for several days after a vaccination, but that he was unsure what the vaccination was for, possibly malaria, the flu, or hepatitis. The vaccination records contained in the service treatment records are dated in the 1970s. However, the Board concedes that it is likely the appellant continued to receive vaccinations throughout his period of service and in connection with his trip to Honduras in particular. Service treatment records do not include any complaints of night sweats. There are limited post-service treatment records regarding the appellant's complaints of sweating. In April 2003, the appellant reported left-sided chest discomfort. He reported he "got sweaty last night when he came in after one of" the episodes of chest discomfort. The diagnostic impression was of "chest pain." The Board notes that the appellant has complained of chest pain on several occasions, but the records do no indicate that he has been diagnosed with a disease or disorder other than "chest pain" as most of his work-ups are negative. In August 2012, the appellant was afforded a VA examination. He reported he was sick for three days following a vaccination, and that he would wake up soaked in sweat. He stated that his night sweats have continued since the vaccination. He reported that since basic training he wakes up drenched in sweat twice per week. He has to get out of bed because he is so hot. He reported a cough in connection with the sweats began in 2006 or 2007, but after he was given a prescription for Nexium, his coughing stopped. He denied any skin problems. The examiner did not diagnose hyperhidrosis, but diagnosed night sweats. The examiner noted that an overheated room or too many bed coverings may be a simple cause for an increase in sweating at night. Other etiologies included malignancy, infection, medications, endocrine causes, neurologic disease, menopause, and idiopathic hyperhidrosis. The examiner opined the appellant's night sweats were less likely than not due to his service. The examiner noted that there was "no medical pathology determined over the 36-year period [the Veteran] reports having" night sweats. He had no constitutional symptoms, and only one medication he is on, Amlodipine, carries the side-effect of sweating, but he was only prescribed the medication in 2009. The examiner noted that during his testimony in 2009, the appellant reported his sweating began in 1993, although he reported to the examiner it began in 1976. The examiner opined that the appellant's night sweats were likely idiopathic in nature and benign. The Board notes again that the appellant is competent to report he experiences night sweats and to describe when his night sweating began. However, here, the appellant has provided conflicting histories regarding the onset of his symptoms. Also the frequency of his night sweats decreased between his 2009 testimony and his 2012 examination. Overall, the Board finds his statements of continuity to be less than credible due to inconsistencies in reporting the onset post-service and no complaints of sweating in-service although he sought treatment for numerous other ailments. As noted in the 2012 examination, no medical provider has given an etiology or underlying cause of the appellant's complained-of night sweats. The record contains one complaint which the Veteran associated with chest pain, but a medical care provider has not commented on this association. The VA examiner has found the night sweats to be idiopathic. As his night sweats are not a symptom of an underlying disability and the medical opinion of record is negative, the Board finds that entitlement to service connection for night sweats is not warranted. In sum, the weight of the evidence is against the claims. As the evidence of record is not roughly in equipoise, there is no doubt to resolve. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the claims are denied. ORDER Entitlement to service connection for a left knee disorder is denied. Entitlement to service connection for night sweats is denied. REMAND Unfortunately, a remand is required in regards to the Veteran's increased rating claims. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. Such development would ensure that his due process rights, including those associated with 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326, are met. The appellant was afforded VA spine examinations in January and October 2007. The examiner's both noted that the appellant underwent spine surgery in 1998 following a work-related injury. The examiners opined that the appellant's in-service strain was less likely than to have caused his current lumbar spine problems, and that his intervening work-injury was likely to have caused his current spine problems. The Board notes that the appellant has stated that he underwent spine surgery in 1998, and that records indicate he underwent surgery in 2000. The service medical records also not that he underwent spine surgery for a work-related injury in 1981. The claims file does not contain treatment records regarding the appellant's spine surgery. As the record contains various dates for when the surgery may have occurred, and the injury and surgery are the basis for the negative opinions, it would be beneficial if the claims file contained the operation records. The Board notes that the appellant was requested to provide additional releases for treatment records not contained in the claims file in February 2012; however, the record also indicates that the appellant is illiterate. As such, on remand, the appellant should be contacted by telephone and in writing for an additional request. Ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim.) The Veteran's claims of bilateral leg pain and hypertension are claimed as secondary to his low back disorder, and are thus inextricably intertwined with the low back disorder. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Accordingly, the case is REMANDED for the following action: 1. Contact the appellant via telephone and in writing to provide him with the opportunity to identify or submit any additional pertinent evidence in support of his claim of entitlement to service connection for a low back disorder, bilateral leg disorders secondary to his back disorder, or hypertension. Particularly, any treatment records for any spinal surgeries he has undergone and any treatment records prior to 2003. Based on the appellant's response, the RO/AMC must attempt to procure copies of all records that have not been previously obtained from identified treatment sources. The appellant's representative should also be contacted to assist in locating records, or obtaining release forms. The record reveals the appellant is illiterate. 2. Attempt to obtain any VA medical records dated since 2004 not currently associated with the claims file and associate them therewith. Perform any and all follow-up as necessary, and document negative results. 3. If additional records are obtained, schedule the Veteran for a VA spine examination to determine the etiology of any diagnosed low back disorder. After a review of the claims file, including any electronic records, the examiner should opine whether it is at least as likely as not (a 50/50 probability or greater) that any currently diagnosed lumbar spine disorder is due to his service, to include any periods of ACDUTRA/INACDUTRA, and the August 1981 Jeep accident. A complete rationale should be provided for all opinions expressed. 4. After the above is complete, readjudicate the Veteran's claim. If the claim remains denied, issue a supplemental statement of the case (SSOC) to the Veteran and his representative, and they should be given an opportunity to respond, before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs