Citation Nr: 1522998	
Decision Date: 06/01/15    Archive Date: 06/16/15

DOCKET NO.  13-17 535	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Hartford, Connecticut


THE ISSUES

1.  Whether new and material evidence has been submitted to reopen a claim for service connection for a back disability.

2.  Entitlement to service connection for a back disability.

3.  Entitlement to service connection for a left knee disability.


REPRESENTATION

Appellant represented by:	Connecticut Department of Veterans Affairs


WITNESS AT HEARINGS ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

C. L. Wasser, Counsel


INTRODUCTION

The Veteran served on active duty from September 1950 to May 1952.

This case comes to the Board of Veterans' Appeals (Board) partly on appeal from a March 2013 decision by the RO in Hartford, Connecticut that determined that new and material evidence had been submitted to reopen a claim for service connection for a back disability, and then denied the claim.  This case also comes to the Board on appeal from a July 2014 rating decision that denied service connection for a left knee disability. 

A personal hearing was held in July 2013 before a Decision Review Officer of the RO, and a transcript of this hearing is of record.  A video conference hearing was held in January 2015 before the undersigned Veterans Law Judge (VLJ) of the Board, and a transcript of this hearing is of record.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

1.  The RO previously denied service connection for a back disability in a January 2005 rating decision and properly notified the Veteran, who did not appeal that decision. 

2.  Some of the additional evidence received since that January 2005 rating decision, however, is not cumulative or redundant of evidence already of record and considered in that decision and raises a reasonable possibility of substantiating the claim for service connection for a back disability.

3.  The preponderance of the competent and credible evidence does not show that the Veteran's current back disability manifested during active service.  Nor does the evidence show that arthritis of the back was manifested to a compensable degree within the first post-service year, or is otherwise related to service.

4.  The preponderance of the competent and credible evidence does not show that the Veteran's current left knee disability manifested during active service.  Nor does the evidence show that arthritis of the left knee was manifested to a compensable degree within the first post-service year, or is otherwise related to service.


CONCLUSIONS OF LAW

1.  The January 2005 rating decision that denied service connection for a back disability is final.  38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 3.104(a), 20.1103 (2014). 

2.  New and material evidence having been received, the claim for service connection for a back disability is reopened.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2014).

3.  A back disability was not incurred in or aggravated in military service, and may not be presumed to have been so incurred or aggravated.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2014).

4.  A left knee disability was not incurred in or aggravated in military service, and may not be presumed to have been so incurred or aggravated.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2014).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

The RO provided the appellant pre-adjudication notice by letters dated in April 2012 and April 2014.  38 C.F.R. § 3.159(b) (2014).  The appellant has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls upon the party attacking the agency determination)

VA also fulfilled its duty to assist the Veteran with these claims by obtaining all potentially relevant evidence, which is obtainable, and therefore appellate review may proceed without prejudicing him.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Bernard v. Brown, 4 Vet. App. 384 (1993).  To this end, the RO obtained his service treatment records (STRs), service personnel records, private medical records, and VA clinical records.  The Board notes that the Veteran has reported receiving inpatient treatment during service for a back injury at Fort Benning in the spring of 1951.  A memorandum from the National Personnel Records Center reflects that a search of the records of Fort Benning Army Hospital for 1951 was conducted, and no records were located pertaining to the Veteran.  VA has also attempted to obtain private medical records from Manchester Memorial Hospital, and this facility has indicated that the Veteran was last seen there in November 1968 and his medical records are unavailable.  The Veteran has testified that records of a physical examination for his civilian employer were unavailable.

The Veteran was also provided a comprehensive VA compensation examination in December 2012 in furtherance of his claim of service connection for a back disability, that was based on clinical findings and a review of the record.  The Board finds that the examination report contains the information needed to adjudicate the claim and an adequate supporting rationale was provided for the medical opinion.  Thus, the Board concludes that the VA compensation examination was adequate.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate). 

The Board acknowledges that the Veteran has not been afforded a VA examination and that no VA medical opinion has been obtained in response to his left knee disability claim, but the Board has determined that VA has no duty to provide an examination or obtain a medical opinion in response to the claim.  In this regard, the Board notes that VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim.  McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i).  The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold.  McLendon, 20 Vet. App. at 83.

In this case, there is competent evidence of the post-service presence of a left knee disability but there is no competent evidence of an injury or disability in service, or competent and credible evidence that the knee disability may be associated with the Veteran's active service or a service-connected disability.  As he has not presented a prima facie case for service connection for a left knee disability, VA is not obliged to provide an examination or obtain an opinion in response to the claim.

VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time.

Also, significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of these claims that has not been obtained.  In April 2014, the Veteran stated that he had no additional evidence to submit.  Hence, no further notice or assistance is required.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

At this time, the Board also notes that it is cognizant of the ruling in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. § 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  However, as discussed above, to the extent possible, VA has obtained the relevant evidence and information needed to adjudicate this appeal.  Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the July 2013 RO hearing or January 2015 Board hearing.


New and Material Evidence

In its March 2013 decision, the RO determined that new and material evidence had been received to reopen the previously denied claim for service connection for a back disability.  Regardless of how the RO ruled on this question, the Board must determine whether there is new and material evidence to reopen this claim, before proceeding further, because this initial determination affects the Board's jurisdiction to adjudicate this claim on its underlying merits.  Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). 

A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision.  38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2014).  If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim.  38 U.S.C.A. § 5108 (West 2014); see also Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). 

New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a) (2014). 

In determining whether evidence is "new and material," the credibility of the new evidence must be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992); Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curium).  See also Duran v. Brown, 7 Vet. App. 216 (1994) ("Justus does not require the Secretary to consider the patently incredible to be credible").  The United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening."  Shade v. Shinseki, 24 Vet. App. 110 (2010). 

The Veteran submitted his original claim for service connection for a back disability in October 2004.  The RO denied entitlement to service connection for this disability in an unappealed January 2005 rating decision, on the basis that a current back disability was not shown.  The RO properly notified the Veteran of this denial, he did not appeal it, and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of the rating decision.  See 38 C.F.R. § 3.156 (2014); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010).  Thus, the January 2005 rating decision became final based on the evidence then of record.  38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103 (2014). 

The Veteran filed an application to reopen his claim for service connection for a back disability in March 2012, and in the March 2013 decision currently on appeal, the RO reopened the previously denied claim, and denied service connection for a back disability.  The instant appeal ensued.

The evidence of record at the time of the prior final January 2005 decision included his STRs, service personnel records, and the Veteran's lay statements.

Additional evidence received since the prior final January 2005 rating decision includes a report of a December 2012 VA compensation examination that shows a current back disability.

This additional evidence, especially in combination with other evidence of record, is new and material.  Specifically, the claims file now contains medical evidence showing a diagnosis of a current low back disability, the lack of which was one basis for the prior denial of this claim.  Thus, this evidence relates to an unestablished fact necessary to substantiate this claim and raises a reasonable possibility of substantiating this claim, so this claim is reopened.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.

Service Connection

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic disorder manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b) (2014).  Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).

In order to establish service connection for the claimed disorder, there must be (1) medical evidence of 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, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability.  See 38 C.F.R. § 3.303 (2014); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 

Certain diseases like arthritis are considered chronic, and will be presumed to have been incurred in service if manifested to a compensable degree (meaning to at least 10-percent disabling) within one year of separation from service.  This presumption, however, is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309(a) (2014).  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b).

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 claims and what the evidence in the claims file shows, or fails to show, with respect to the claims.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Analysis

The Veteran claims that he has disabilities of the back and left knee as a result of an injury after a parachute jump during training in service.  He has stated that he jumped successfully, but then after landing, injured his back on a stone while lying on the ground, when he rolled over to release the harness of his parachute.

Since the back claim has been reopened, service connection for a back disability is to be reviewed based on all the evidence of record.  Manio, supra. 

The Board has considered whether adjudicating the back claim on a de novo basis at this time would prejudice the Veteran.  The Veteran has been provided the pertinent laws and regulations regarding service connection and has been given the opportunity to review the evidence of record and submit arguments in support of his claim.  His arguments have focused squarely on the issue of service connection, not whether new and material evidence had been submitted.  Finally, the RO has adjudicated this claim on the merits.  Therefore, the Board can proceed immediately with the readjudication of this claim without prejudicing the Veteran.  See Sutton v. Brown, 9 Vet. App. 553 (1996); Bernard v. Brown, 4 Vet. App. 384 (1993).

A review of the evidence reflects that the Veteran has been diagnosed with a back disability, as demonstrated on VA examination in December 2012.  Consequently, the determinative issue is whether or not this disability is attributable to his military service.  See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between the disability and an injury or a disease incurred in service.").

The Veteran served on active duty from September 1950 to May 1952.  His service treatment records reflect that in June 1951, he was treated for a traumatic injury to the soft tissue over the lower back.  Subsequent service treatment records are negative for back complaints or a diagnosis of a back disability.  On separation medical examination in May 1952, the Veteran's spine and lower extremities were clinically normal.  The examiner noted that the Veteran had no Army hospitalizations, and currently had no medical complaints.  Service treatment records are entirely negative for a left knee injury or disability.

In his initial back claim in October 2004, the Veteran said his back/spine disability began in 1951, and he was treated for this condition at the Fort Benning hospital.  He stated that he was treated for this condition after service in approximately 1970 at Manchester Memorial Hospital by Dr. B.  He related that during a parachute jump while in training with the 13th Ranger Company at Fort Benning, he rolled over on his back to release the parachute harness and a stone pushed against his spine, causing him to be paralyzed.  He said he was carried to a hospital on base, and returned to his company two or three days later.  He said that his hospital records should be available from Fort Benning dated in the spring of 1951.

In an October 2004 statement, the Veteran said he graduated from airborne school in April 1951, and then went to Ranger training.  He said his back injury incurred during his 6th or 7th parachute jump, and that after landing, he rolled over on his back to release the harness and a very sharp pain made him black out.  The next thing he remembered was being carried off the field.  Later, someone told him he had rolled onto a stone and apparently injured his back.  He remembered being in a hospital unit, but was unsure for how long.  He was told to stay in bed in his barracks for a few days, and after that he felt okay.  He continued Ranger training, then went to another camp for mountain climbing, then made another parachute jump.  Then he volunteered to go to Korea, where he served in combat for three months, and then returned to the U.S.  The Veteran stated that he had back problems throughout this time, but never enough to complain, as far as he remembered.  After service, he continued to have back problems, which worsened over time.  First he went to a chiropractor, until his assistance hurt more than it helped, and then went to a neurology physician, Dr. G., who put him in Manchester Hospital a few times, where he received traction.  He used a hospital bed at home to sleep.  Eventually he had back surgery by Dr. B. at Manchester Hospital, and that physician told him that his spinal disc was shattered and that the discs above and below had collapsed.  When he asked Dr. B. how he thought it happened, he reportedly said it looked like an old wound.  When he told Dr. B. about his parachute accident, Dr. B. said that was probably what caused the disc to be damaged.  The Veteran said that since his surgery, his back gave him few problems, but he still had to be careful with it, and his activity was limited by it.  He said his back continued to weaken with time.

In a November 2004 statement on a release form, he said that after service, he was admitted to Manchester Memorial Hospital for various back treatments, including traction, leading up to an operation to correct three herniated discs by Dr. B.  He did not remember the exact spelling of the doctor's name or the date of the surgery.  He said he was treated there from 1960 to 1980.

VA medical records dated from 2001 to 2014 primarily reflect treatment for unrelated conditions.  A November 2001 initial primary care progress note reflects that the Veteran presented with high cholesterol and requested medications.  His problem list included arthritis of the left knee with previous left knee arthroscopy, and had spinal surgery in 1967.  He did not complain of back or knee symptoms.  It was noted that he had a private physician.  A May 2002 treatment note reflects that the Veteran reported that he received steroid injections for his left knee arthritis.

In a March 2012 statement, the Veteran said he injured his back in a parachute fall in service, and he still had low back pain.  He stated that he had surgery in 1972.

A private medical record dated in March 2012 by R.P., MD reflects that the Veteran complained of back pain.  The Veteran reported that he suffered a back injury during a fall while parachuting in the military.  Dr. P. stated that she had no record of this injury and his back had not been treated in this office up until now.  He planned to pursue this through VA.  With regard to his surgical history, the Veteran reported that he had disc surgery in the 1970s, and a knee arthroscopy.   He did offer any knee complaints, and a left knee disability was not diagnosed.

In an April 2012 statement, the Veteran stated that during the parachute incident in service, a stone partially penetrated his spine when he rolled over.  He said he was immediately paralyzed, he was hospitalized, and then stayed in his barracks for two to three days.  He then returned to training, from which he graduated in September 1951.  He subsequently served in combat in Korea.  He said he had intermittent pain and discomfort after the incident.  He related that his discharge process was very fast and he did not recall having a physical examination.  He stated that after service, he had intermittent back pain.  In another April 2012 statement, he said that his spinal surgeon, Dr. B., told him that rolling on a stone caused his spinal damage.

In a May 2012 statement, the Veteran said that he had spinal surgery in the late 1960s, but his private medical records from Manchester Memorial Hospital and Dr. B. were unavailable, and his physicians from that period were all deceased.  

An August 2012 private report of a magnetic resonance imaging (MRI) of the low back showed moderate lumbar levoscoliosis, straightening of the normal lumbar lordosis, diminished height of lumbosacral intervertebral discs, and endplate osteophytes.

On December 2012 VA compensation examination of the back, the examiner noted that the claims file was reviewed, and summarized relevant medical records, as well as the Veteran's reported history of a spine injury after a parachute jump.  The Veteran reported that after his in-service injury from a stone, he was on bed rest for three days, after which he was able to walk without restrictions and resumed his Ranger training.  He said his back still hurt at that time but he did not seek care.  He denied post-service back injuries.  After service, he reportedly sought treatment for his back condition from a chiropractor, and then by a doctor in the 1960s.  He reported successful spine surgery in 1970, which relieved his pain.  He said he had been seen by Dr. P. for the past eight years.  He complained of chronic low back pain.  He took medication for arthritis pain in his shoulders and knees.  He stated that he was retired.  After an examination, the examiner indicated that he did not have radiculopathy of the lower extremities.  The Veteran used a cane for back and knee degenerative joint disease.  The VA examiner diagnosed lumbar degenerative joint disease and levoscoliosis, and opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. 

The examiner's rationale for the opinion was that there was documentation for a soft tissue injury in June 1951 with nothing to follow.  He completed his tour of duty in May 1952, including a deployment to Korea.  The examiner opined that the Veteran's current degenerative joint disease of the lumbar spine with levoscoliosis was not likely related to soft tissue injury over the lower back in 1951 with the diagnosis being made 61 years after the injury.  The examiner opined that his back disability was more likely related to aging, and stated that she was unable to link his lumbar disc surgery to service without resorting to speculation since the surgery occurred 20 years after service.  

A February 2013 private medical record from P.G.P., PA-C, reflects that the Veteran was a new patient.  He complained of low back pain.  He had onset of pain after a parachute jump in the service in 1951, and reported being paralyzed in both legs for two to three days at that time.  Since then he had persistent back pain, and underwent surgery in 1968 with Dr. B.  He still had persistent pain.  After an examination, the P.A. diagnosed low back pain, lumbar disc degeneration, lumbar spondylosis, and scoliosis.  The examiner stated that the Veteran had chronic worsening lower back pain with history of surgery in 1968, and had onset of back pain after parachute injury while in the service in 1951.  His main reason for the visit today is the help substantiate his VA disability claim.

At a July 2013 RO hearing, the Veteran reiterated many of his assertions.  He stated that in June 1951, he rolled over on something, possibly a stone or something in his bag, harness or parachute, and it went into his back with a sharp pain and he was "out cold."  When he woke up, he was unable to walk, and was carried off the field.  He was hospitalized at Fort Benning for about three days, during which time he was still unable to walk.  He was able to walk when he returned to his barracks, but he was told to stay in his barracks on bed rest for three days, after which he felt "pretty good," and returned to training.  He made three more parachute jumps after that, even though he still had back pain.  He did not complain about it.  He then went to Korea, where he served in communications in a combat group.  He said that prior to starting his post-service job in the late 1950s, he told his employer about his back problem, and he had a physical examination.  He said he had to sign a waiver in order to be hired.  He testified that these records are unavailable.  He said that over the years, his back problems worsened, until he had back surgery.  He said his surgeon told him he had a damaged disc, and collapsed discs.  He said he received only private medical care for his back until 2005 when he went to VA.

He reiterated his assertions in a June 2013 letter.  He said that ten years after the parachute incident, the discs surrounding his damaged spinal disc collapsed, after which he had surgery.

In December 2013, the Veteran filed his original claim for service connection for a left knee disability.

By a letter dated in December 2013, a private medical provider, D.S., P.A.-C, stated he saw the Veteran in the office today with a known history of back injury in 1950 when airborne in the Army.  He said that the Veteran had injuries to his left knee and lumbar spine at that time, but his left knee was treated conservatively at that point.  He indicated that he currently had end-stage left knee arthritis and a MRI-documented ligament tear.  A left total knee arthroplasty was panned.  He said the Veteran's right knee was not injured at that time.  

By a letter dated in March 2014, D.S. stated that the Veteran recently underwent left total knee arthroscopy.  He noted that the Veteran had medical records indicating his onset of symptoms dating back to the June 16, 1951, while in training for the 13th Ranger Company.  The Veteran reported that he injured his knee back at that time and had problems since then.  D.S. opined that most likely the initial onset of his symptoms dated back to this point, which led him to a total knee arthroplasty at this time.

By a letter dated in April 2014, a private physician, R.C., MD, indicated that the Veteran gave a history of chronic back pain dating back to the 1950s, and also had a significant amount of left leg pain but fortunately following a total knee arthroplasty last month that had markedly improved.  The Veteran reported that his symptoms started with an injury on a parachute jump in 1951, and he was unable to move his legs following the jump and was carried off.  He subsequently had conservative care and then underwent a lumbar laminectomy and decompression and fusion for that injury.  Dr. C. noted that radiographs showed advanced degenerative disc changes and multi-level arthrosis, collapse of both the L4-5 and L5-S1 disc spaces with fusion from L4 to the sacrum.  The diagnosis was back pain secondary to posttraumatic arthropathy post laminectomy syndrome and associated arthrosis.  Dr. C. opined that based on a reasonable degree of medical certainty, the persistent symptomatology that the Veteran suffered, namely low back pain, was service connected and directly related to the injuries sustained in the parachute jump of 1951. 

In a July 2014 statement, the Veteran reiterated many of his contentions.  He contended that his current left knee and back disability were incurred in the same parachute incident, but that unfortunately his records were not complete.  He said he treated his back and knee problems himself after separation from service.

At his January 2015 Board hearing, the Veteran reiterated many of his contentions.  He again stated that he was unable to walk after the incident.  He said he did not recall if he was taken to the hospital after his injury in the parachute incident, but the next thing he remembered after the incident he was in his barracks.  He said he stayed in his barracks for three days, and he was walking around after that.  He stated that he had continuous back and leg problems after that incident and after service.  He said his doctors told him that the injuries shown on his imaging studies were old, and that he had no post-service injuries to these areas.

Based on all of the above evidence, the Board concludes that entitlement to service connection for a back disability and a left knee disability is not warranted. While it is conceded that the Veteran did incur a soft tissue injury to the back in service, the preponderance of the evidence supports a finding that this in-service injury did not cause the Veteran's current back disability.  Moreover, the service treatment records are entirely negative for a left knee injury, left knee symptoms, or a left knee disability.

Ultimately, the Board must consider all the evidence relevant to the claims, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service, and any other pertinent facts.  See Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000).  Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role.  See Jordan v. Principi, 17 Vet. App. 261 (2003).

Throughout this appeal, the Veteran has consistently asserted that his back disability is related to service, and more recently asserted that his left knee disability is related to service.  He is certainly competent to say he began having back and knee pain while in service, since this is within the realm of lay experience.  38 C.F.R. § 3.159(a)(2).  See also Jandreau, supra; Davidson, supra; Charles v. Principi, 16 Vet. App. 370 (2002); Falzone v. Brown, 8 Vet. App. 398, 403 (1995)).  However, the Board must determine if these statements are also credible.

Here, after reviewing all the relevant lay and medical evidence, the Board finds that the weight of this evidence (the most probative of it) indicates the Veteran has not experienced continuous low back and left knee symptoms since service.

There is no evidence, other than the Veteran's recent statements, of complaints or treatment for a left knee injury or disability during service.  Moreover, aside from the single service treatment record showing treatment for a traumatic injury to the soft tissue over the lower back, there is no evidence of a spinal disc or spinal injury in service, and no medical evidence of any paralysis of the legs.  Further, there is no evidence of in-service hospitalization for a back injury, as the Veteran initially claimed (though he recently stated that he could not recall if he was hospitalized for his back in service).  Both his spine and lower extremities were clinically normal on separation medical examination in May 1952.  The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms").

The post-service medical evidence also does not reflect any complaints or treatment related to the back or left knee for nearly 50 years following the conclusion of his service, although the Veteran has consistently reported having spinal surgery in the late 1960s/early 1970s, and the recent medical evidence shows that he had spinal surgery in the past.  And while it is true he need not have received continuous treatment for his back and knee disabilities during those many intervening years after the conclusion of his service up to the present, only persistent or recurrent symptoms, the absence of any intervening complaints or findings related to this disability for so long after service is a factor weighing against continuity of symptomatology.  38 C.F.R. § 3.303(b).  See also Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (ruling that a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service resulting in any chronic or persistent disability); Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where Veteran had failed to account for lengthy time period between service and initial symptoms of disability).  The lengthy period of time between the Veteran's in-service parachute incident and any evidence of a back or knee disability strongly suggests the Veteran's disability began years after service. 

Moreover, the Veteran never filed a claim for service connection for the back  disability until 2004, or for a left knee disability until 2013, and did not claim that his back symptoms began in service until filing his original VA disability compensation claim in 2004.  See Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the Veteran's statements, it may consider whether self-interest may be a factor in making such statements).  While the Veteran previously reported intermittent back symptoms after service, more recently he has reported constant back symptoms since service.  He has made conflicting statements about exactly how he injured his back while lying on the ground in service, and on at least one occasion, stated that someone told him that he rolled onto a stone.  Moreover, as shown by the evidence and as noted by the VA examiner, he was extremely active during demanding physical conditions after the June 1951 soft tissue back injury.  For example, as demonstrated by his own statements and testimony, he continued his Ranger training, then went to another camp for mountain climbing, made additional parachute jumps, and then served in combat in Korea for three months.  

With regard to the left knee disability, in his multiple statements since 2004 relating that his back disability began in a parachute incident in service, it was not until 2013 that he reported having a left knee injury in that same incident.  This fact weighs heavily against the credibility of his statements regarding an in-service knee injury, particularly in the absence of any complaints, treatment or diagnosis of a left knee injury in service or for a left knee disability until 2001.  The Veteran has never even described how his left knee was purportedly injured in service.  The Board finds that his statements in this regard are incredible.  

These inconsistencies in the record weigh against the Veteran's credibility as to the assertion of continuity of back and left knee symptomatology since service. See Madden v. Gober, 125 F.3d 1477, 1481 (Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence). 

Moreover, the VA examiner has disassociated any current back disability from service, after clinical examination and a review of his claims file.  The December 2012 VA examination report is of high probative value because the examiner is qualified to comment on the etiology of this claimed disorder, examined the Veteran, reviewed his medical records, including the June 1951 service treatment record, and considered the Veteran's reported history of a back injury in service and continuous symptoms after service.  It appears that the examiner accepted as credible the Veteran's accounts of a back injury in service, but concluded that it was unlikely given all the evidence of record that this injury is the cause of the Veteran's current back disability.  Rather, she related it to aging.

The VA examiner had the benefit of reviewing the Veteran's claims file and, thus, not only considered what is said to have occurred during service but also during the many decades since.  The December 2012 opinion is well-reasoned and consistent with the other evidence of record.  Prejean v. West, 13 Vet. App. 444 (2000).  The VA examiner sufficiently discussed the underlying medical rationale of the opinion, which, rather than mere review of the claims file, is more so where the probative value of the opinion is derived.  See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Green v. Derwinski, 1 Vet. App. 121 (1991).

Although some private examiners, including Dr. C., have related the Veteran's current back disability and left knee disability to service, the Board finds that these opinions have little probative weight.  It appears that most of the opinions were based solely on the Veteran's reported history, rather than based on a review of the medical records, particularly since the service treatment records are negative for a left knee injury or a spinal injury.  See Swann v. Brown, 5 Vet. App. 229, 233 (1993) (medical opinion premised on unsubstantiated account is of no probative value and does not serve to verify the occurrences described).  It does not appear that Dr. C. reviewed any of the Veteran's service treatment records, and his April 2014 opinion suggests that the Veteran injured his back in a parachute jump, rather than rolling onto something sharp after landing safely.

With regard to the March 2014 opinion by D.S., although he apparently reviewed the June 1951 service treatment record, he makes no mention of the subsequent May 1952 separation examination report showing a clinically normal spine and lower extremities, which significantly reduces the probative value of his opinion.

Additionally, while the Veteran may sincerely believe that his current back disability and left knee disability are related to service, he has not demonstrated that he has any knowledge or training in determining the etiology of such conditions.  Although lay persons are competent to provide opinions on some medical issues, the specific issues in this case (whether the Veteran's back and left knee degenerative joint disease is related to active duty) fall outside the realm of common knowledge of a lay person.  See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer).  As a result, the Veteran's assertions cannot constitute competent medical evidence in support of this claim.

The Board gives greater weight to the medical opinion of the December 2012 VA examiner, who concluded that it is less likely than not that the Veteran's back disability is related to trauma in service. 

In sum, the weight of the competent and credible evidence does not link the current back disability and left knee disability to service, and there is no evidence of arthritis of the low back or left knee manifested to a compensable degree within the first post-service year. 

The Board therefore finds that the most probative evidence is against the claims. And since, for the reasons and bases discussed, the preponderance of the evidence is against the claims, there is no reasonable doubt to resolve in the Veteran's favor, and his claims for service connection for a back disability and a left knee disability must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

The petition to reopen a previously denied claim for service connection for a back disability is granted.

Service connection for a back disability is denied.

Service connection for a left knee disability is denied.




______________________________________________
K. PARAKKAL 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs