Citation Nr: 1340494 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 07-02 546 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant had service in the Army National Guard of Oklahoma (OKARNG) from May 1973 to May 1984. The record shows he had active duty for training (ACDUTRA) from December 1973 to April 1974, and various other periods of ACDUTRA and inactive duty for training (INACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision by the Muskogee, Oklahoma, Regional Office (RO) of the Department of Veterans Affairs (VA). In January 2011, the appellant testified at a video conference hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. The issues on appeal were adequately explained to him and the submission of evidence which he may have overlooked and which would be advantageous to his position was suggested. See 38 C.F.R. § 3.103(c) (2012). The Board remanded the case for additional development in October 2010, April 2011, and February 2013, and in September 2013 found de novo adjudication was warranted and remanded the case for appropriate action. This appeal was processed using the Virtual VA and VBMS (efolder) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of the electronic record. The issues of entitlement to service connection for a heart disorder, hypertension, and paranoid schizophrenia 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. FINDINGS OF FACT 1. A back disability was not manifest during service and is not shown to have developed as a result of an established event, injury, or disease during service. 2. A left knee disability was not manifest during service and is not shown to have developed as a result of an established event, injury, or disease during service. CONCLUSIONS OF LAW 1. A back disability was not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 2. A left knee disability was not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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, 3.326(a) (2012). The appellant was notified of the duties to assist and of the information and evidence necessary to substantiate his claims by correspondence dated in August 2006 and April 2011. The notice requirements pertinent to the issues addressed in this decision have been met and all identified and authorized records relevant to these matters have been requested or obtained. The available record includes service treatment records dated in August 1979 and April 1983, service department reports, private treatment records, and the appellant's statements and testimony in support of his claims. The Board notes that in his original August 1994 claim the appellant reported that he injured his back and left knee in February 1991 during OKARNG service and that at his Board hearing in January 2011 he reported that he had been injured in 1973 or 1974 at Fort Chafee, Arkansas, when a truck tire fell on him. It is significant to note that at his hearing in January 2011 he indicated that he had received no service department medical treatment for these injuries and that in a September 1994 statement he reported "[t]here was no medical administered or records made of [the] accident." Extensive efforts have been taken over the course of this appeal to obtain additional service treatment and/or personnel records without success and that in May 2013 the appellant was notified that additional evidence could not be obtained. The Board also notes that at his January 2011 hearing the appellant reported that he had received private medical care subsequent to his injury in 1973 or 1974. The subsequent record shows that in July 2011 VA was notified that there were no private medical records available. The available record includes a September 1994 decision showing the appellant sustained post-service, work-related injuries to the low back and left knee during employment at Durant Milling. Correspondence dated in 1994 also noted his Social Security Administration (SSA) disability claim was pending for a hearing. Although no subsequent SSA records were requested or obtained by VA, the Board finds no indication any additional SSA records exist relevant to the present appeal. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that relevant SSA records must be obtained, but that there must be a specific reason to believe the records may give rise to pertinent information to conclude that they are relevant. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). In fact, there is no credible evidence of any back or knee disorders prior to the Veteran's work-related injuries. In correspondence dated in April 2012 the appellant also reported that he had no additional evidence to submit in support of his appeal. The Board finds the development requested on remand has been substantially completed. There is no evidence of any additional existing pertinent records and further attempts to obtain additional evidence would be futile. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Although a medical opinion addressing the appellant's claims has not been obtained, the Board finds there is no credible evidence of a specific event, disease, or injury occurred during service as to these matters and an additional examination is not required. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (a VA examination is not required when there is no credible evidence establishing an event, injury, or disease in service). The Board finds the appellant's statements, in essence, that he sustained injuries in approximately 1973 or 1974 to be not credible due to inconsistency with the other evidence of record and finds his statements that he sustained injuries in service in February 1991 to be not credible because the service department has verified that he had no service after 1984. The available evidence is sufficient for adequate determinations. There has been substantial compliance with all pertinent VA law and regulations and to adjudicate the claims would not cause any prejudice to the appellant. Service Connection Service connection may be granted for a disability resulting from injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Active military, naval, or air service includes any period of active duty training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(21), (24) (West 2002); 38 C.F.R. § 3.6(a), (d) (2012); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). ACDUTRA is, generally, full-time duty in the Armed Forces performed by reserves for training purposes. 38 C.F.R. § 3.6(c)(1) (2012). The United States Court of Appeals for Veterans Claims (hereinafter "the Court") has held that regulations concerning presumptive service connection, the presumption of soundness, and the presumption of aggravation are inapplicable to claims based upon ACDUTRA service. See Smith v. Shinseki, 24 Vet. App. 40 (2010). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of the veteran's service as shown by the veteran's service record, the official history of each organization in which the veteran served, the veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). The Federal Circuit has held that a claimant seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Medical evidence is required to demonstrate a relationship between a current disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person's observations would be competent. Clyburn v. West, 12 Vet. App. 296 (1999). Whether lay evidence is competent and sufficient in a particular case is an issue of fact and lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (sometimes the layperson will be competent to identify the condition where the condition is simple, for example, a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) Lay evidence presented by a claimant concerning his continuity of symptoms after service may generally be considered credible and ultimately competent, regardless of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102 (2012). In this case, the appellant has asserted that he incurred back and left knee injuries in 1973 or 1974 when a truck tire fell on him during service and also that he sustained injuries in February 1991. Service treatment records show that upon examinations in August 1979 and April 1983 the appellant's spine and lower extremities were found to be clinically normal. A September 1994 workmen's compensation decision noted the appellant sustained work-related injuries to the low back and left knee during employment at Durant Milling. Based upon the evidence of record, the Board finds that back and left knee disabilities were not manifest during service and is not shown to have developed as a result of an established event, injury, or disease during service. There is no credible evidence of any event or injury during service related to these claims and no credible evidence of any disability manifest until many years after service nor prior to his work-related injuries. The appellant's statements as to injuries in service are found to be not credible due to inconsistency with the other evidence of record. In determining whether evidence submitted by a claimant is credible VA may consider internal consistency, facial plausibility, and consistency with other evidence. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (superseded by statute for an unrelated point of law as stated by Duenas v. Principi, 18 Vet. App. 512 (2004)); see also Buchanan, 451 F.3d at 1337 (VA can consider bias in lay evidence and conflicting statements of the veteran in weighing credibility); Macarubbo v. Gober, 10 Vet. App. 388 (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor); Pond v. West, 12 Vet. App. 341, 345 (1999) (holding in a case where the claimant was also a physician, and therefore a medical expert, that the Board should properly consider the appellant's own personal interest in the outcome of the case). Therefore, the appellant's claims for entitlement to service connection must be denied. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The preponderance of the evidence in this case is against the appellant's claims. ORDER Entitlement to service connection for a back disability is denied. Entitlement to service connection for a left knee disability is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs