Citation Nr: 1628017 Decision Date: 07/14/16 Archive Date: 07/28/16 DOCKET NO. 12-24 119 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for degenerative disease of the lumbar spine, claimed as a low back condition. 2. Entitlement to service connection for degenerative disease of the bilateral knees. 3. Entitlement to service connection for degenerative disease of the left ankle, claimed as a left leg condition. REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Gallagher, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1963 to September 1965, with a prior period of active duty for training (ACDUTRA). This appeal is before the Board of Veterans' Appeals (Board) from a June 2010 rating decision of the abovementioned Department of Veterans Affairs (VA) Regional Office (RO). In March 2016, the Veteran testified during a Board hearing in St. Petersburg, Florida, before the undersigned Veterans Law Judge. A transcript is included in the claims file. FINDINGS OF FACT 1. A lumbar spine disability is not related to service and did not manifest within one year of separation from service. 2. A knee disability is not related to service and did not manifest within one year of separation from service. 3. A left ankle disability is not related to service and did not manifest within one year of separation from service. CONCLUSIONS OF LAW 1. The criteria for service connection for degenerative disease of the lumbar spine, claimed as a low back condition, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015). 2. The criteria for service connection for degenerative disease of the bilateral knees have not been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015). 3. The criteria for service connection for degenerative disease of the left ankle, claimed as a left leg condition, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In the present case, required notice was provided by letter dated March 2009. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). As to VA's duty to assist, all necessary development has been accomplished. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records and VA medical records have been obtained. The Veteran was provided a VA examination of his lower back, knees, and left ankle in March 2009. The Board finds that this examination and its associated report were adequate. Along with the other evidence of record, they provided sufficient information to decide the appeal and a sound basis for a decision on the Veteran's claims. The examination report was based on examination of the Veteran by an examiner with appropriate expertise who thoroughly reviewed the claims file. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, VA has satisfied its duties to notify and assist, additional development efforts would serve no useful purpose, and there is no prejudice to the Veteran in adjudicating this appeal. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Merits The Veteran claims service connection for degenerative disease of the lumbar spine, bilateral knees, and left ankle. Service connection may be granted 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(a). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The term "active military, naval or air service" is further defined as (1) active duty or a period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and (2) any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. See 38 U.S.C.A. § 101(24). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In determining whether service connection is warranted for a disability, VA is 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. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Service treatment records indicate that in December 1962, during his period of ACDUTRA, the Veteran suffered a left ankle fracture. His leg was in a cast and he was placed on restricted duty for four weeks. In January 1963, the cast was removed, x-rays were normal, and the Veteran was deemed fit for discharge. At his September 1963 active duty induction examination, the Veteran reported no ankle injuries in his medical history and no abnormalities of any kind were noted on examination. In May 1964, the Veteran reported low back pain after falling into a hole. No tenderness or radicular signs were noted, but physical examination revealed moderate muscle spasms in the left lumbar area. Subsequently, in December 1964 the Veteran exhibited right knee tenderness and limitation of extension, but x-rays showed no evidence of fracture. No musculoskeletal disabilities were noted at his August 1965 separation examination, and in the accompanying report of medical history the Veteran denied having ever experienced arthritis, foot trouble, or trick or locked knees. VA treatment records reflect that in July 1996 the Veteran underwent surgery on his left knee to remove a patellar bursa cyst, with a follow-up surgery to address varicosities in September 1996. At a February 2005 rheumatology consultation, the Veteran reported that he had been suffering knee and lower back pain for three years. X-rays from December 2004 showed mild osteoarthritis at the patellofemoral and femoral tibial joint and moderate osteoarthritis of the lumbosacral spine. He received follow-up care in May and August of 2005 and reported that his knees were bothering him at a January 2006 follow-up. In his February 2009 claim, the Veteran reported that his claimed disabilities began on the day of his separation from service. In September 2009, the Veteran underwent a VA examination. He reported intermittent pain with remissions in his back and knees since repeated parachuting in service. He further reported no current pain in the left ankle but recurrent ulcers which he attributed to his in-service left ankle injury. Based on physical examination and x-rays, the examiner diagnosed degenerative disease of the lumbar spine, both knees, and the left ankle. As to his lumbar spine disability, the examiner opined that it was less likely than not related to any low back injury sustained during active duty. This opinion was based on the rationale that military records only reflected one incident of acute back spasm, and the Veteran's current degenerative disease is at the level one would expect on a person of his age. As to his knee disability, the examiner opined that it was less likely than not related to any knee injury sustained during active duty. This opinion was based on the rationale that military records only reflected one incident of an acute transient condition of the right knee, and the Veteran's current degenerative disease is at the level one would expect on a person of his age. As to his left ankle disability, the examiner opined that it was less likely than not related to any ankle injury sustained during service. This opinion was based on the rationale that despite the Veteran's in-service injury, x-rays do not reflect unilateral traumatic arthritis but rather bilateral degenerative disease at the level one would expect on a person of his age. In his September 2010 notice of disagreement, the Veteran reported that he had experienced pain and discomfort since the injuries described in his service treatment records. In his August 2012 substantive appeal, the Veteran reported that his 1996 surgeries were related to his in-service knee injuries, and that his back has not felt fine since September 1965. At his March 2016 hearing, the Veteran stated that he made 37 to 39 parachute jumps while in service. Specifically, he stated that his back injury arose from a 30-foot tower jump two weeks prior to separation. He stated that he hit the base of the hill, lost consciousness, and was taken to the hospital. He stated that x-rays showed his back was hurt and he was placed on light duty. He stated he could barely walk. He reported back pain ever since, though he did not get it treated. As to the Veteran's lower back, the Board finds that the evidence weighs against a finding that his current disability is related to service or manifested within one year of separation. The VA examiner's opinion is highly probative, indicating that the Veteran's single acute incident of back spasms in service is unlikely to cause degenerative arthritis of a level that is typically age-related. The Board finds this opinion more credible than the statements of the Veteran, because the Veteran's statements are not consistent throughout the record. Specifically, at his VA examination the Veteran reported that repeated parachuting had caused all of his claimed disabilities, but at his March 2016 hearing he reported being knocked unconscious and hospitalized for a back injury from a tower jump two weeks prior to separation. Furthermore, the latter incident is not reflected in his service treatment records, which show only outpatient treatment for back spasms after the Veteran reported falling into a hole more than one year prior to separation. Similarly, the Veteran in some statements reported constant back pain since separation, but at his VA examination he reported intermittent back pain with remissions, and his VA treatment records show that he reported back pain with an onset in 2002. For these reasons, the Board finds that the evidence weighs against a finding that his current disability is related to service or manifested within one year of separation, and service connection is therefore denied. As to the Veteran's knees, the Board finds that the evidence weighs against a finding that his current disability is related to service or manifested within one year of separation. The VA examiner's opinion is highly probative, indicating that the Veteran's single acute incident of knee tenderness in service is unlikely to cause degenerative arthritis of a level that is typically age-related. The Board finds this opinion more credible than the statements of the Veteran, which as discussed above are not consistent throughout the record. The Board further notes that there is no medical evidence in the record that the Veteran's current bilateral knee disability is at all related to his 1996 left knee surgery to remove a bursa cyst, nor is there any evidence establishing a relationship between that surgery on his left knee and the right knee tenderness and motion limitation experienced in service. For these reasons, the Board finds that the evidence weighs against a finding that his current disability is related to service or manifested within one year of separation, and service connection is therefore denied. Finally, as to the Veteran's left ankle, the Board finds that the evidence weighs against a finding that his current disability is related to service or manifested within one year of separation. The VA examiner's opinion is highly probative, indicating that the Veteran's ACDUTRA left ankle injury is unlikely to cause degenerative arthritis of a level that is typically age-related and currently present in both of the Veteran's ankles. Furthermore, the Board notes that the Veteran's statements of in-service onset are not consistent throughout the record as discussed above. For these reasons, the Board finds that the evidence weighs against a finding that his current disability is related to service or manifested within one year of separation, and service connection is therefore denied. ORDER Service connection for degenerative disease of the lumbar spine, claimed as low back pain condition, is denied. Service connection for degenerative disease of the bilateral knees is denied. Service connection for degenerative disease of the left ankle, claimed as left leg condition, is denied. ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs