Citation Nr: 1343369	
Decision Date: 12/31/13    Archive Date: 01/07/14

DOCKET NO.  10-15 406	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Entitlement to service connection for right thigh contusion (claimed as right knee injury).

2.  Entitlement to service connection for a gastrointestinal disability.

3.  Entitlement to service connection for hypertension.

4.  Entitlement to service connection for a lumbar spine disability.

(The issue of entitlement to a waiver of overpayment of pension benefits in the amount of $58,187.00 is the subject of a separate Board decision)


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

J. Hager, Counsel


INTRODUCTION

The Veteran served on active duty from November 1974 to December 1976.

These matters come before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.

The Veteran requested a videoconference hearing and one was scheduled for December 10, 2010.  The Veteran failed to appear for the hearing and has not suggested there was good cause for his failure to report.  His request for a hearing is therefore considered withdrawn.  38 C.F.R. § 20.704(d) (2013).

The issues of entitlement to service connection for a gastrointestinal disability, hypertension, and a lumbar spine disability 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.


FINDING OF FACT

The Veteran does not have a disability, to include of the right knee, that is due to a disease or injury in service, to include a right thigh contusion.



CONCLUSION OF LAW

A right knee or thigh disability was not incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

VCAA

The Veterans Clams Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159.  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 January 2008 pre-rating letter, the RO notified the Veteran of the evidence needed to substantiate the claim for entitlement to service connection for right knee disability.  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).

For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 was amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim.  73 Fed. Reg. 23,353 (Apr. 30, 2008).  In any event, the January 2008 letter complied with this requirement.

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 claim, in January 2008 letter.

The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d).  This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4).  

In this case, VA obtained the Veteran's service treatment records (STRs) and all of the identified post-service private and VA treatment records.  The Veteran has not been afforded a VA examination because, for the reasons indicated below, the evidence does not reflect, with regard to this claim, that the Veteran has a current disability that may be associated with service.  38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).

For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements.  The claim for entitlement to service connection for right thigh contusion (claimed as right knee disability) is thus ready to be considered on the merits.

Analysis

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 current disability and an in-service precipitating disease, injury or event.  Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).

In order for a veteran to qualify for entitlement to compensation under the pertinent statutes and regulations pertaining to direct service connection, a veteran must prove the existence of a disability, and one that has resulted from a disease or injury that occurred in service.  See Sanchez-Benitez v. Principi, 259 F.3d 1356, 1361-1362 (Fed. Cir. 2001).  The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim.  McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).  

The instant claim stems from the Veteran's December 2007 statement in support of claim (VA Form 21-4138) in which he indicated that he sought service connection for, among other things, right knee injury.  In the statement, the Veteran wrote that, during basic training, he ran into another soldier, with his right knee colliding with the other soldier's knee.  The STRs contain a November 1974 treatment note indicating that the Veteran complained of knee pain after he hit it on someone else's knee.  On examination, there was marked tenderness and slight swelling of the distal anterior aspect of the right thigh, with no apparent knee tenderness.  X-rays of the right thigh and knee showed no fracture.  The impression was of a contusion of the right thigh, with treatment being an ice pack with no marching or running for 72 hours.  There are no further notations with regard to the right knee or thigh in the STRs and the November 1976 separation examination report reflects that the musculoskeletal system and lower extremities were normal.  On the separation report of medical history, the Veteran indicated that he did not have and had never had a trick or locked knee and indicated generally that is health was good.

The Board has continued the RO's characterization of the issue as entitlement to service connection for right thigh contusion (claimed as right knee injury) because the only disorder of the right leg that has been identified in the lay and medical evidence has been the right thigh contusion noted in service.  The subsequent written statements of the Veteran and the other lay witnesses related to other disabilities and do not indicate that the Veteran has a current disability of the right knee that is related to this in-service right knee injury.  The post service treatment records do not contain a diagnosis of any disorder of the right leg, to include the right thigh and knee.  On the October 1996 VA general medical examination, the Veteran indicated that he had a spinal fusion operation in 1991 and was told that he had residual nerve damage to his lower limbs.  There was normal range of motion of the extremities and the diagnosis indicated that the examination was within normal limits, with a history of back problems that were noted in the examination report.  The extensive VA treatment records contain many problem lists, none of which includes any disorder of the right leg, to include the knee and thigh.  The only reference to a knee abnormality appears to be in a November 2001 VA treatment note that indicates a mildly decreased left patellar reflex, but otherwise normal 2 reflexes, including the right patella.  The private treatment records similarly do not contain any references to complaints, treatment, symptoms, or diagnoses relating to the right knee or thigh.

The above evidence reflects that the Veteran has not met his burden of showing a current disability of the right knee or thigh that is related to a disease or injury in service.  38 U.S.C.A. § 5107(a) (a claimant has the responsibility to present and support a claim for VA benefits); Skoczen v. Shinseki, 564 F.3d 1319, 1323 (Fed. Cir. 2009) (the "support" requirement of section 5107(a) obligates the claimant to provide some evidentiary basis for his or her benefits claim).  The Veteran has met the in-service injury requirement, as the November 1974 STR and his lay testimony reflect that he sustained a right thigh injury as a result of the collision he described in his lay statement.  Neither the lay nor medical evidence reflects that the Veteran has a current disability that is related to this injury.  Moreover, neither the Veteran nor the lay witnesses have stated that he has had a right knee or thigh disability since service or at any time since filing the claim, and the normal separation examination and the Veteran's statement at the time of separation that he did not have a trick or locked knee, as well as his report of many other symptoms in the VA treatment records but not right knee or thigh symptoms, also reflects a lack of such disability.  Buczynski v. Shinseki, 24 Vet. App. 221 (2011) (citing Fed. R. Evid. 803(7) for the proposition that the absence of an entry in a record may be evidence against the existence of a fact if it would ordinarily be recorded).  Even considering that a "disability" for the purposes of awarding VA disability benefits is not only a disease or an injury, but also any "other physical or mental defect," 38 U.S.C.A. § 1701(1); Allen v. Brown, 7 Vet. App. 439, 444-45 (1995) (applying definition of disability in section 1701(1) to statutes describing "eligibility for disability compensation for service connected disabilities"), the Veteran has not shown that he has such disability because he has not shown any defect with regard to the right knee or thigh.

For similar reasons, a VA examination is not warranted with regard to this claim. Under the VCAA, VA must provide an examination with regard to claims for disability compensation when there is competent evidence of a disability (or persistent or recurrent symptoms of a disability) that may be associated with an in-service event, injury, or disease, but there is insufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); McLendon, 20 Vet. App. at 81.  For the above reasons, there is no evidence of a disability or persistent or recurrent symptoms thereof with regard to the right knee and thigh, and neither the Veteran nor his representative have pointed to any evidence showing such disability or symptoms that may be associated with his in-service injury.

For the foregoing reasons, the preponderance of the evidence is against the claim for entitlement to service connection for right thigh contusion (claimed as right knee injury).  The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009).


ORDER

Entitlement to service connection for right thigh contusion (claimed as right knee injury) is denied.


REMAND

The VA treatment records contain diagnoses of multiple gastrointestinal disorders and hypertension and there is evidence of gastrointestinal disorder and high blood pressure readings and possible hypertension in service.  There is also evidence of longstanding symptoms of these disorder such that they may be associated with service, and VA examinations are therefore warranted as to the etiology of these disabilities.

As to the Veteran's lumbar spine disability, there are multiple notations in the STRs indicating back injuries and diagnoses, including a motorcycle accident and a fall.  The Veteran has also been diagnosed with multiple back disabilities since service.  As noted above, there have also been post service back injuries.  The January 2010 VA examiner found that X-ray findings in service were consistent with isthmic spondylosis that is congenital in nature and not from the collision he described in basic training.  Dr. Knoll's September 2009 letter indicated that prior to his in-service motorcycle accident, the Veteran had a preexisting lumbar spondylosis and facet changes causing back pain, for which he sought treatment.  Neither of these medical opinions is adequate to decide the Veteran's claim.  The Veteran's spine was normal on the October 1974 entrance examination, and he is therefore presumed to have been in sound condition in this regard.  38 U.S.C.A. § 1111 (West 2002).  Therefore, it must be determined whether there was clearly and unmistakably a preexisting disability, if so, what disability, and whether such disability was clearly and unmistakably not aggravated by service.  Id.  A new VA examination is warranted to answer these and related questions.  Congenital defects are not generally subject to service connection, but may be service connected if there is superimposed acquired pathology as a result of intercurrent injury.

Accordingly, the claims for entitlement to service connection for a gastrointestinal disability, hypertension, and a lumbar spine disability, are REMANDED for the following action:

1.  Schedule the Veteran for a VA examination as to nature and etiology of his current gastrointestinal disorders.  All necessary tests should be conducted.

The claims file must be sent to the examiner for review.

The examiner should first diagnose all current gastrointestinal disorders.  Then, as to any such diagnosed disorder, the examiner should indicate whether it is as least as likely as not (50 percent probability or more) that the such disorder is related to the gastrointestinal symptoms or anything else in service.

A complete rationale should accompany any opinion provided.

2.  Schedule the Veteran for a VA examination as to the etiology of his hypertension.  All necessary tests should be conducted.

The claims file must be sent to the examiner for review.

The examiner should indicate whether it is as least as likely as not (50 percent probability or more) that the Veteran's hypertension is related to service, to include the high blood pressure readings and references to hypertension in the STRs.

A complete rationale should accompany any opinion provided.

3.  Schedule the Veteran for a VA examination as to the etiology of his lumbar spine disabilities.  All necessary tests should be conducted.

The claims file must be sent to the examiner for review.

The examiner should first diagnose all current lumbar spine disorders.

Then, the examiner should offer an opinion as to the etiology of each diagnosed disorder.

The examiner should indicate whether, in his opinion, any lumbar spine disorder preexisted service.  As to any such disorder, the examiner should offer an opinion as to whether the disorder was aggravated, i.e., made permanently worse, by service.

As to any disorder that did not preexist service, the examiner should indicate whether it is as least as likely as not (50 percent probability or more) that the disorder is related to service, to include the lumbar spine injuries, symptoms, and diagnoses in service.  The examiner should also address the post-service back injuries noted in the evidence of record.

A complete rationale should accompany any opinion provided.

4.  After the above development has been completed, readjudicate the claims for entitlement to service connection for a gastrointestinal disability, hypertension, and a lumbar spine disability.  If any benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims 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. 2013).


______________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs