Citation Nr: 1400465 Decision Date: 01/07/14 Archive Date: 01/23/14 DOCKET NO. 08-09 652 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for a bilateral knee disorder. 2. Entitlement to service connection for a lumbar spine disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1969 to February 1973. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas. The Veteran testified at a Board hearing at the RO in Little Rock, Arkansas in December 2008. This transcript has been associated with the file. The case was brought before the Board in March 2011, at which time the claims were remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his appeal, to include notifying the Veteran how to substantiate his claims, obtaining records from the Social Security Administration (SSA), and affording him a new VA examination. The Veteran was notified in April 2011 on how to substantiate his claims. His SSA records were obtained and associated with the claims file and he was afforded a VA examination in May 2011. Therefore, the Board finds that there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that a bilateral knee disorder is related to service. 2. The preponderance of the evidence is against a finding that a lumbar spine disorder is related to service. CONCLUSIONS OF LAW 1. The criteria to establish service connection for a bilateral knee disorder have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 2. The criteria to establish service connection for a lumbar spine disorder have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to review the entire record, the Board does not have to discuss each piece of evidence reviewed. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2013). Here, the Veteran was provided with the relevant notice and information in an April 2011 letter. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Although this notice was provided after the September 2007 rating decision, he has not alleged any notice deficiency during the adjudication of his claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. Here, the Veteran's service records, VA records, and private treatment records have been obtained and associated with the claims file. The Veteran was afforded a VA medical examination in May 2011 for his knee and lumbar spine claims. This opinion was rendered by a medical professional following a thorough examination and interview of the Veteran and review of the claims file. The examiner obtained an accurate history. The examiner provided a detailed conclusion for the opinions that were reached. Therefore, the Board finds that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the foregoing, all relevant facts have been adequately developed to the extent possible; no further assistance to the Veteran in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder on a direct basis, generally there must be probative evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be granted for a chronic disease, including arthritis, when it is manifested to a compensable degree within one year of separation from service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). The Veteran contends that his bilateral knee and lumbar spine disorders began in service when he fell down a ladder while onboard the U.S.S. Mount Vernon. For the reasons that follow, the Board concludes that service connection is not warranted. In reviewing the Veteran's service treatment records, the Board observes that at his April 1969 entrance examination he did not report any knee or back problems. He was qualified for entrance to service. In March 1972 there is an entry that the Veteran injured his left knee playing football 3 days earlier. He reported a similar episode 4 years earlier, prior to entering service. His x-rays showed his knee was normal and he was diagnosed with a left knee strain and given an Ace bandage. There is no follow up for this condition. At separation from service at his January 1973 examination the Veteran himself stated that he did not have arthritis, recurrent back pain, or a trick or locked knee. He did report health abnormalities including mumps, asthma, boils, and sleep walking. On examination his knees and back were normal. The first post service reference to knee or lumbar spine pain comes from a 1991 VA treatment record, approximately 18 years after separation from service. The Board may, and will, consider in its assessment of a service connection the passage of a lengthy period of time wherein the veteran has not complained of the disorder at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. Principi, 284 F.3d 1335, 1358 (Feb. Cir. 2002) (en banc). The evidence weighs against the Veteran's claim for service connection. A February 1991 VA treatment record noted lumbar spine pain and knee pain. He was diagnosed with lumbar spine strain. An April 1997 private treatment record indicated the Veteran reported left knee pain. He was advised that his weight was the major problem and that he needed to lose weight. There was evidence of osteoarthritis. A May 1997 private treatment record noted the Veteran reported lumbar spine pain which began 6 days earlier. He was diagnosed with a herniated nucleus L4-L5 with right sided radiculopathy. In a March 2002 VA treatment record the Veteran reported that he injured his back in 1989 while working in the steel industry. In a separate March 2002 VA treatment record the Veteran again reported that he was told he had 3 ruptured discs in his back 3.5 years earlier. He reported back pain which had existed overall for 15 years, or since 1987. In a May 2002 VA treatment record he reported his back pain began 12 years earlier, or 1990, after an injury. He stated he stopped working in 2001, but not due to his lower back pain, due to the worksite closing. In June 2002 x-rays revealed osteoarthritis of the bilateral knees. A December 2002 VA treatment record noted the Veteran complained of left knee pain which had been present for a couple of months. The Veteran was afforded a VA examination in May 2011. He reported injuring his knees and back after he fell down a ladder in service. See also December 2008 Board hearing transcript. The examiner noted there was no record of the Veteran's fall in his service treatment records and no records of a lumbar spine injury. The Veteran did strain his left knee playing football in 1972. The examiner reviewed the claims file, performed a physical examination of the Veteran, and ultimately opined that it was less likely that not that the Veteran's knee and lumbar spine disorders were related to service. With regard to the presumption of arthritis, there is no evidence the Veteran had arthritis in his knees or lumbar spine within one year of service. Accordingly, the presumption of service connection does not apply. See 38 C.F.R. §§ 3.307, 3.309. A preponderance of the competent probative evidence of record weighs against the Veteran's assertion that his knee and lumbar spine disorders are related to service. The evidence of record includes the Veteran's statements and testimony asserting continuity of symptoms with respect to his bilateral knee and lumbar spine disorders since active duty service. The Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Furthermore, an absence of evidence of a disorder may not be considered substantive negative evidence. See Buczynski v. Shinseki, 24 Vet. App. 221 (2011). The exception is 'where the silence in regard to a condition can be taken as proof that a doctor did not observe the symptom' or if the fact would have normally been recorded. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Buczynski, supra. The Board acknowledges that the Veteran believes he has bilateral knee and lumbar spine disorders as a result of an injury in service. The Veteran's nephew submitted a statement in April 2005 attesting to the fact that he remembered the Veteran telling him he was injured when he fell down a ladder in service. J.S. also submitted a statement that although he did not see the accident, he remembered the Veteran was sore and limping around after he fell in service. See also May 2011 statement. In July 2007 G.S. submitted a statement that he also did not see the Veteran's injury, but he remembered that the Veteran was less physically active and made trips to sick bay following the incident. Although lay persons such as the Veteran are competent to provide opinions on some medical issues such a pain and limited movement, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the issue of diagnosing and determining the etiology of osteoarthritis of the bilateral knees and degenerative changes of the lumbar spine, these fall outside the realm of common knowledge of a lay person. The Veteran's assertion has been investigated by competent medical opinion, and found to be without merit. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The Board finds credible the Veteran's report that currently experiences bilateral knee and lumbar spine pain. The Board also finds credible the Veteran's friends statements that he experienced pain after falling down a ladder. The Veteran has also stated that he was treated every week for knee and back pain from July 1972 to his separation in February 1973. Unfortunately, there is no objective evidence of this treatment. As noted above, the Board cannot make a determination that the lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence. See Buchanan, supra; Kahana, supra; Buczynski, supra. However, the Board can weigh the Veteran's service treatment records against the Veteran's contentions that his bilateral knee and lumbar spine disorders are related to service. As discussed, the Veteran stated he was treated weekly for knee and spine pain for 8 months, but there is no evidence of this in the service treatment records. Also on separation from service the Veteran himself was given the opportunity to report any health problems and only stated he had asthma, mumps, boils, and prior sleep walking. He specifically denied knee or back problems. It is unclear why the Veteran reported other ailments during this time period but failed to report any knee or spine symptoms. On examination, these conditions also were not diagnosed. The gap of 18 years between separation from service and the first evidence of treatment for these conditions in 1991 also weighs against the Veteran's contentions that these conditions are related to service. No medical examination has linked the claimed conditions to service; to the contrary the May 2011 VA examiner opined that it was less likely than not that the bilateral knee or lumbar spine disorders were related to service. Finally, the Veteran's own reports at private and VA medical appointments reveal evidence that his conditions began after a work injury in 1989 or at the earliest in 1987. See e.g., March and May 2002 VA treatment records. Unfortunately, this evidence weighs against the Veteran's claim that his bilateral knee and lumbar spine disorders are related to service. Accordingly, the Board concludes that the preponderance of the evidence is against the claims for service connection on a direct and presumptive basis and the benefit of the doubt rule does not apply. See 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). ORDER Entitlement to service connection for a bilateral knee disorder is denied. Entitlement to service connection for a lumbar spine disorder is denied. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs