Citation Nr: 1745528 Decision Date: 10/12/17 Archive Date: 10/19/17 DOCKET NO. 16-15 985 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for a cervical spine disability. 2. Entitlement to service connection for a low back disability. 3. Entitlement to service connection for bilateral knee disability. 4. Entitlement to service connection for bilateral foot disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). The Veteran had active military service from October 1952 to October 1955. These matters come before the Board of Veterans' Appeals (Board) from a September 2015 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Milwaukee, Wisconsin. These matters were previously before the Board in March 2017 when they were remanded for further development. They have now returned to the Board for further appellate consideration. The Board finds that there has been substantial compliance with the directives of its remand. In an August 2017 rating decision, the Appeals Management Center granted service connection for bilateral hearing loss disability; thus, that issue is no longer for appellate consideration. FINDINGS OF FACT 1. The earliest clinical evidence of a cervical spine disability is not for more than five decades after separation from service. 2. The earliest clinical evidence of a low back disability is not for more than five decades after separation from service. 3. The earliest clinical evidence of a knee disability is not for more than five decades after separation from service. 4. The earliest clinical evidence of a foot disability is not for more than five decades after separation from service 5. The most probative evidence is against a finding of a significant injury in service and/or of chronic symptoms of an injury since service. 6. The most probative evidence is against a finding that the Veteran has a cervical spine disability, a low back disability, a knee disability, and/or a foot disability causally related to, or aggravated by, service. CONCLUSIONS OF LAW 1. The criteria for service connection for a cervical spine disability have not been met. 38 U.S.C.A. §§ 1101 , 1110, 1112, 1113, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102 , 3.303, 3.304, 3.307, 3.309 (2016). 2. The criteria for service connection for a low back disability have not been met. 38 U.S.C.A. §§ 1101 , 1110, 1112, 1113, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102 , 3.303, 3.304, 3.307, 3.309. 3. The criteria for service connection for bilateral knee disability have not been met. 38 U.S.C.A. §§ 1101 , 1110, 1112, 1113, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102 , 3.303, 3.304, 3.307, 3.309. 4. The criteria for service connection for bilateral foot disability have not been met. 38 U.S.C.A. §§ 1101 , 1110, 1112, 1113, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102 , 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The March 2017 remand requested that attempts be made to obtain records from the Veteran's former employer and noted they may contain audiological treatment (as noted above, service connection for bilateral hearing loss has since been granted). A VA Form 21-4138 dated in March 2017 reflects that the Veteran will not submit forms for VA to obtain additional records as he checked with his former employer and his former employer's health care provider and he was told "no records are currently available as he retired many years ago." Thus, to the extent any such records are relevant to the claims remaining on appeal, further efforts to obtain them would be futile, and the duty to assist has been satisfied. The Veteran's service treatment records (STRs) are presumed to have been destroyed in a fire. (See National Personnel Records Center (NPRC) May 2014 correspondence to the Veteran, and March 2015 NPRC response to the RO .) Legal Criteria Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). For some "chronic diseases," presumptive service connection is available. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With "chronic disease" shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of a '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. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic disease' became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307. The term "chronic disease," whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. Where a portion of service records cannot be located through no fault of the Veteran, VA has a "heightened" obligation to more fully discuss the reasons and bases for its decision and to carefully consider applying the benefit- of-the-doubt doctrine. See, e.g., O'Hare v. Derwinski, 1 Vet. App. 365 (1991). However, the threshold for allowance of a claim is not lowered and the need for probative medical nexus evidence causally relating the current disability at issue to service is not eliminated; rather, the Board's obligation to discuss and evaluate evidence is heightened. Russo v. Brown, 9 Vet. App. 46 (1996). The Board finds, for the reasons noted below, that service connection is not warranted for any of the claimed disabilities. The Veteran had active service from 1952 to 1955 and was assigned to the XVIII Airborne Corps. He did not have combat, foreign, or sea service. His military occupational specialty was as a light vehicle driver (See DD Form 214). The claims file includes a copy of the Veteran's jump log (parachuting log) which reflects 14 jumps beginning in 1953 and ending in August 1955. The Veteran avers that he has spine disabilities, knee disabilities, and feet disabilities due to a motor vehicle accident and/or parachuting in service. He asserts that in September 1954, he was a passenger in a car which hit a deer and the car tumbled down a 50 foot cliff with his legs pinned below the knees by a car door. He stated that in the incident he received bad cuts and bruises on his legs, and a few scrapes and bruises elsewhere but that he was able to make it to muster (assemble for inspection or to report for duty) and do his daily work without needing to go to a doctor. He asserted that he has had problems with his low back, neck, and knees since that accident. See typed July 2010 statement and handwritten statement. With regard to parachuting jumps, the Veteran has asserted that such jumps were the start of his physical problems. He also referenced a hard landing on a highway after his chute did not open until he was 200 feet above the ground. See January 2015 VA Form 21-4139 and VA Form 9 dated in April 2016. The Board acknowledges the Veteran's parachuting jumps, as reported in his jump log. While the Veteran is competent to report pain, bruises, and cuts, the Board finds that the Veteran is less than credible to the extent he is asserting that he has had chronic problems since 1954. The Veteran has stated that he did not seek treatment for any of the claimed conditions while in service. (See July 2010 typed statement and February 2015 VA Form 21-4138.) To the extent he is asserting continuity of symptomatology from the time of either the car accident and/or his parachuting jumps in service, his statements are inconsistent with the contemporaneous evidence of record in the years soon after service wherein he denied relevant symptomatology. The post-service evidence from 1956 to 1958 includes completed DA Form 1140s (Army Reserve Qualification and Availability Questionnaire) from 1956, 1957, and 1958. Block 11 of each form reflects that the Veteran, by signing his name, certified that to the best of his knowledge and belief, he had no physical defect or condition except as noted on the form which would prevent his performance of full military service. The Veteran did not report any physical defects or conditions on the form, and signed the form certifying to its accuracy (See Instructions for DA Form 1140). If the Veteran had a spine, leg, or foot disability in any of the three years after separation from service, it seems reasonable that he would have noted such, especially as the spine, leg, and feet are all integral parts of the body for a soldier. The Board finds it would have been reasonable for him to have noted it on this form, rather than certify that he was fit for duty. Accordingly, the preponderance of the evidence is against a finding that arthritis manifested to a compensable degree within one year of service with respect to any of the joints on appeal. The Veteran has also been inconsistent in reporting when his symptoms began. When he spoke to a VA clinician, he reported onset after service, but when he filed a claim for compensation, he reported the onset in service. See Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the testimony.) Importantly, in making such a credibility finding, the Board is not implying that the Appellant has any intent to deceive. Rather, the Appellant may be simply mistaken in his recollections due to the fallibility of human memory for events that occurred decades ago. This is consistent with the law's view of memory in general. See generally, Seng v. Holder, 584 F.3d 13, 19 (1st Cir. 2009) (notwithstanding the declarant's intent to speak the truth, a statement may lack credibility because of faulty memory). Post service, the Veteran was employed in manual labor. The DA 1140s noted above reflect that his occupation was assembling electrical switch boxes and motor control cabinets. The earliest clinical evidence of the claimed disabilities is not until approximately six decades after separation from service. The lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service connection claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The claims file includes VA examinations and clinical opinions which support a finding that it is less likely as not that the Veteran has disabilities of the cervical spine, low back, knees, or feet causally related to service. There is also no evidence, and the Veteran has not contended, that he had preexisting disabilities which were aggravated by service. A 2015 VA examination report reflects that the Veteran stated that his neck and shoulders tightened up recently. The clinician, who considered the Veteran's statements, found that the Veteran's disability was likely due to age and genetics. The Board notes that the record does not include genetic testing; however, even assuming arguendo that the Veteran was not genetically predisposed to a spine disability, the opinion still reflects that the Veteran's age was the only other likely factor. (The Board notes that the Veteran turned 85 years old in 2015.) With regard to the low back, the 2015 VA examination report reflects that the Veteran reported that he started getting back problems a year or two after service. With regard to the Veteran's knees, the 2015 VA examination report reflects that the Veteran stated that his knees started hurting approximately 15 years earlier or in 2000; this would be 45 years after separation from service. An August 2015 VA radiology report reflects mild knee osteoarthritis. With regard to the Veteran's feet, the 2015 VA examination report reflects that the Veteran reported that he is not sure why his feet swell up, but that they have been swelling for the last 20 years, or since approximately 1995 (which is 40 years after separation from service). The Veteran reported that he injured his foot when he stepped on something and landed wrong. The report reflects a diagnosis of hallux valgus. A 2017 VA clinical opinion reflects, in pertinent part, as follows: It is less likely than not that disabilities of the neck, low back, knees, and feet, had their clinical onset during service, or arthritis was manifest within one year of service, or are otherwise related to any in-service disease, event, or injury. There were no medical records to review in this case either during or after service. Based on the veteran's test[i]mony at the time of his exams, he did not have problems with his back, knees, feet or neck at the time of discharge. It was considered that the veteran had injuries during service and that if service records were found these injuries would have been documented including being involved in an MVA, however, most injuries resolve without sequellae. Consideration of his being involved in parachute jumps was also considered. Parachute jumps are known to be difficult on the body but delayed manifestation of the difficulties would not be expected without test[i]mony indicating that there was chronic problems at or near the time he was doing the jumps. Considering that the veteran did not give test[i]mony of having prolonged treatment, surgery or difficulty at the time of discharge for any of these conditions it is unlikely that his current problems resulted from any injury in service. The condition, based on the veteran's te[s]t[i]mony, that manifested closest to discharge was his back pain which started a year or two after service. Back pain is very common. If his current back problems resulted in some structural damage caused by events in service, it is very unusual that 60 years later he still had not had any formal treatment of the back. It is also notable that there were no after service records provided that could possibly shed light on the origin of the veteran's current difficulties. The Board finds that the lack of necessity for treatment in service, the Veteran's assertion on his Reserve forms that he was physically fit in the year after service, and the Veteran's reported post-service onset to VA clinicians are all probative evidence that support a finding that the Veteran did not have severe injuries in service, or chronic symptoms since service. The VA opinion is probative of the issue and is supported by the evidence. The Veteran has not been shown to have the experience, training, or education necessary to make an etiology opinion to the claimed disabilities. Although lay persons are competent to provide opinions on some medical issues, the Board finds that a lay person is not competent to provide a probative opinion as to the specific issues in this case in light of the education and training necessary to make a finding with regard to the complexities of age, osteoarthritis, and traumatic arthritis. The Board finds that such etiology findings fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In sum, the most probative evidence is against a finding that the Veteran has a disability of the cervical spine, low back, knee, or feet causally related to, or aggravated by service or that arthritis may be presumed to have been incurred in service. Thus, service connection is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for a cervical spine disability is denied. Entitlement to service connection for a low back disability is denied. Entitlement to service connection for bilateral knee disability is denied. Entitlement to service connection for bilateral foot disability is denied. ______________________________________________ M.C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs