Citation Nr: 1410160 Decision Date: 03/12/14 Archive Date: 03/20/14 DOCKET NO. 11-09 295 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a left knee disability. 2. Entitlement to service connection for a lower back disorder. REPRESENTATION Veteran represented by: David Owens, Agent ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The Veteran had active service from April 1974 to June 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Waco, Texas. FINDINGS OF FACT 1. A current left knee disability has not been demonstrated. 2. A current low back disability is unrelated to a disease or injury in service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left knee disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2013). 2. The criteria for entitlement to service connection for a lower back disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) - Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). 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. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(b)(1) (2013). In May 2009, prior to adjudication of the Veteran's claim, the RO advised him of the evidence and information necessary to substantiate his service connection claims, as well as he and VA's respective responsibilities in obtaining such evidence and information. That same communication also informed the Veteran of the evidence and information necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. The Veteran was afforded VA examinations over the course of this appeal, the most recent in 2012. The examiners considered an accurate history, and provided definitive opinions supported by sufficient reasons. The examinations and opinion are; therefore, adequate. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). All reported service and post service treatment record have been obtained, and there is no indication of any outstanding records. For the foregoing reasons, the Board finds that VA has fully satisfied the duty to assist the Veteran in obtaining evidence reasonably likely to substantiate the claims. II. Laws and Regulations - Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110, 1131 (West 2002). In order to establish service connection, there must be evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). For chronic diseases (as defined in 38 U.S.C.A. § 1101 and 38 C.F.R. § 3.309(a)) the second and third elements of service connection can be established by showing a continuity of symptomatology since service. However, service connection via 38 C.F.R. § 3.303(b) is only available for chronic diseases. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d) (2013). III. Facts and Discussion The Veteran asserts that while on active duty, he injured both his back and left knee. With respect to his back, he has averred that he was on an obstacle, fell off the obstacle, and then injured is back. He has reported that he received treatment a couple of times for back pain while still on active duty. The service treatment records show that in April 1976, the Veteran was seen after falling from an overhead bar and landing on his buttocks. He experienced a four day history of back pain, but a physical examination was reportedly normal. He reported mild thoracic spine pain in November 1976. When the Veteran was discharged from service, he did not report any history of back symptoms and his end-of-enlistment physical included no findings of back disability. The service treatment records show the Veteran reported tenderness in the left patella after physical training in June 1974. X-ray and physical examinations were normal except for mild infrapattellar tenderness. In September 1974, it was reported that his pain had decreased and he could walk without much difficulty. He continued to have medial tenderness and was to undergo knee strengthening. There were findings of occasional swelling and discomfort. A disability of the left knee was not diagnosed. The Veteran also did not mention any knee disability at his end-of-enlistment physical there were no findings of left knee disability. Post-service records show the Veteran began physical therapy in April 1994. It was noted that he had injured his back lifting heavy objects on December 17, 1993; and now had a diagnosis of lumbar herniated nuclear pulposus with mild "contrusion" at L5 and S1. In April 1995, a psychologist reported that the Veteran had stopped work as a truck driver in February 1994, and was currently unemployed due to an on-the-job back injury, for which he was receiving workers compensation. The Veteran underwent VA hospitalization in April and May 1995 for treatment of cocaine dependency. His physical disabilities were recorded, but these did not include back or left knee disabilities. VA outpatient treatment records dated from June 1995 to October 2007, note a history of back disabilities dating back to 1994, but do not report a left knee disability. In February 2008, the Veteran reported chronic knee pain. No specific history or diagnosis was reported. The Veteran filed his initial claim for service connection in April 2009. He reported that he had been in a "bad" car accident in service and that was the source of his back and left knee disabilities. In conjunction with his claim for benefits, the Veteran underwent an examination of the knee in February 2010 and of the back in June 2012. On the knee examination, all reported findings were normal. The examiner concluded that while the Veteran may have complaints of pain in the knee or occasional restrictions of movement of the knee, he did not have a diagnosable condition, disorder, or disability of the left knee. With respect to the lower back, the examiner did confirm the presence of a current disability. The examiner noted the Veteran's report of a car accident in service with ongoing symptoms since. The examiner concluded that while the Veteran may have injured his back in service, such an injury was only transitory and did not produce a chronic disability. The examiner further found that any back disability from which he was currently suffering was not related to the Veteran's military service or any incident therein. The reason for the opinion was that the separation examination was normal. Analysis The service treatment records demonstrate an in-service left knee injury. Although the Veteran has reported current left knee symptoms, VA examination and treatment records do not show an underlying disability and the VA examiner opined that there was no such disability. Pain without a diagnosed or identifiable underlying malady or condition, does not constitute a "disability" for which service connection may be granted). Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). An underlying left knee disability was not identified in service or since. Absent a current underlying disability, the weight of the evidence is against the claim; reasonable doubt does not arise, and the claim is denied. 38 U.S.C.A. § 5107(b). The evidence does demonstrate a current low back disability and a back injury in service. The question is whether the evidence supports a link between the current disability and service. The Veteran has arthritis in the low back. Arthritis is a chronic disease. 38 U.S.C.A. § 1101. As such, the nexus could be shown by a continuity of symptomatology. Cf. Walker. In his claim and subsequent statements the Veteran has reported continuity of symptomatology beginning in service. These statements are competent, but not credible. The Veteran's reports beginning in 2009, must be weighed against his failure to report any pertinent symptomatology at the time of his separation from service and records associated with the December 1993 back injury. At the time of treatment for the 1993 back injury, the Veteran reported no history of previous back symptoms. He continued to receive intermittent treatment at VA for many years but also reported no ongoing back symptoms prior to the 1993 injury. The Veteran only reported a continuity of symptoms in conjunction with his claim for VA compensation. Given the significant amount of contradictory evidence, his reports of continuity are not deemed credible. The only medical opinion as to nexus is negative. There is no other medical evidence of record that provides an opinion as to the etiology of the current disorders of the lower back and left knee. Service connection may also be granted on a presumptive basis for chronic diseases when such are manifested to a compensable degree within the initial post-service year. 38 U.S.C.A. § 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The record does not show arthritis in service or within the year immediately following his release from active duty and the evidence does not otherwise establish manifestations within that timeframe. Accordingly, he is not afforded the presumption set forth under 38 C.F.R. §§ 3.307, 3.309(a) (2013). Absent competent and credible evidence of a nexus, the preponderance of the evidence is against the claim for service connection for a lower back disability. Reasonable doubt does not arise and it is also denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER 1. Entitlement to service connection for a left knee disability is denied. 2. Entitlement to service connection for a lower back disorder is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs