Citation Nr: 1751395 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 12-25 225 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a left shoulder disability. 2. Entitlement to service connection for a low back disability. 3. Entitlement to service connection for a bilateral knee disability. 4. Entitlement to service connection for a bilateral ankle disability. 5. Entitlement to service connection for scars on the chest, shoulder, and back. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Z. Sahraie, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from December 1976 to December 1979 with additional service in the Army Reserve. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. This appeal was processed using the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this case should take into consideration the existence of these records. FINDINGS OF FACT 1. The competent and credible evidence of record establishes that the Veteran's left shoulder disability is etiologically related to active service. 2. The competent and credible evidence of record establishes that the Veteran's back disability is etiologically related to active service. 3. The competent and credible evidence of record establishes that the Veteran's bilateral knee disability is etiologically related to active service. 4. The competent and credible evidence of record establishes that the Veteran's bilateral ankle disability is etiologically related to active service. 5. The competent and credible evidence of record establishes that the Veteran's scars are etiologically related to active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left shoulder disability have been satisfied. 38 U.S.C.A. § 1101, 1110, 1111, 1154(a), 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016). 2. The criteria for service connection for a back disability have been satisfied. 38 U.S.C.A. § 1101, 1110, 1111, 1154(a), 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016). 3. The criteria for service connection for a bilateral knee disability have been satisfied. 38 U.S.C.A. § 1101, 1110, 1111, 1154(a), 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016). 4. The criteria for service connection for a bilateral ankle disability have been satisfied. 38 U.S.C.A. § 1101, 1110, 1111, 1154(a), 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016). 5. The criteria for service connection for scars on the chest, shoulder, and back have been satisfied. 38 U.S.C.A. § 1101, 1110, 1111, 1154(a), 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to notify and assist 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 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran has been provided notice letters throughout the appeal that address all notice elements required. There has been no allegation of notice error in this case. See Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009). The Board has also satisfied its duty to assist. 38 U.S.C.A. § 5103A; 38 C.F.R. 3.159. VA has obtained all identified and available treatment records for the Veteran. In addition, the Veteran has undergone VA examinations in connection with his claims. The Board finds the examinations adequate, because they included reviews of the medical file, interviews of the Veteran, and examination findings supported by rationale. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In light of the foregoing, the Board finds that VA has provided the Veteran with every opportunity to submit evidence and arguments in support of his appeal. The Veteran has not identified any outstanding evidence that needs to be obtained. Entitlement to service connection for a left shoulder disability. Service connection may be established for disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. §§ 1101, 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 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). The Federal Circuit has held that continuity of symptomatology under 38 C.F.R. § 3.303(b) applies only to chronic diseases listed in 38 C.F.R. § 3.309 (2016). Walker v. Shinseki, 708 F.3d 1331, 1338 (2013). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2016). The Veteran carries a current diagnosis of degenerative joint disease of the left shoulder. It is his contention that he injured the shoulder in a 1977 in-service motor vehicle accident, and that he has experienced pain since that time. The Veteran has provided a detailed account of the 1977 motor vehicle accident, to include the names and ranks of three other service members with whom the Veteran was riding at the time. The accident involved a fatality. The Veteran has also outlined the treatment he received in the wake of the accident. The RO made attempts to corroborate this information by seeking treatment records at the two facilities at which the Veteran states he received care; those facilities indicated that records concerning treatment of the Veteran were not extant at the time of request. Nevertheless, the Board finds the Veteran's statements with respect to the accident credible. First, they are supported by his wife's lay statement, which confirms the Veteran's account. Second, the record contains no alternative provenance for the Veteran's injuries, which VA examiners have concluded appear to be post-traumatic conditions which are consistent with an accident of the type the Veteran describes. The Veteran underwent a VA examination of his left shoulder in April 2015. The examiner concluded that the Veteran's degenerative joint disease was at least as likely as not related to the in-service motor vehicle accident. Accordingly, the Board finds the preponderance of the evidence supports the service connection claim, and it is hereby granted. Entitlement to service connection for a back disability. The Veteran has stated that his back disability is also related to the aforementioned 1977 motor vehicle accident. He carries a current diagnosis of degenerative joint disease of the lumbar spine. The VA examiner with whom he met in April 2015 opined that, if the claimed motor vehicle accident indeed took place, the Veteran's current low back disability was more likely than not related thereto. As explained above, the Board finds the Veteran's statements with respect to the accident credible. As such, it considers the April 2015 VA examiner's opinion to constitute a positive nexus opinion, and accepts the same as the most probative evidence of record with respect to the etiology of the Veteran's low back disability. The evidence preponderating in favor of the claim for service connection, the claim must be granted. Entitlement to service connection for a bilateral knee disability. The Veteran carries a current diagnosis of degenerative joint disease of the bilateral knees. He claims that both knees were injured in the aforementioned 1977 motor vehicle accident, and that in addition, his in-service experience as a paratrooper contributed to his current knee symptomatology. Having already discussed the Board's findings with respect to the 1977 motor vehicle accident, the Board will also consider the Veteran's credibility with respect to his statements about parachute jumps in service. The Veteran's DD214 reflects his receipt of a Parachute Badge. As such, and resolving any reasonable doubt in the Veteran's favor, the Board finds his statements credible as to the performance of parachute jumps in service. The VA examiner with whom the Veteran met in April 2015 stated that if he had indeed performed parachute jumps in service, his current knee disability was more likely than not related to these jumps. As the Board finds the Veteran credible with respect to the claimed jumps, the April 2015 VA opinion is considered a positive nexus opinion, and is accepted as the most probative evidence of record on the question of the etiology of the current knee disability. The evidence preponderating in favor of the claim for service connection, the claim must be granted. Entitlement to service connection for a bilateral ankle disability. The evidence of records shows a current bilateral ankle disability. The Veteran contends it relates to the 1977 motor vehicle accident. The VA examiner with whom he met in April 2015 confirmed that his current ankle condition was at least as likely as not related to the accident as described. As the Board has found the Veteran's account of the accident credible, this opinion is taken as a positive nexus opinion and constitutes the most probative evidence of record with regard to the etiology of the Veteran's ankle condition. The evidence preponderating in favor of the claim for service connection, the claim must be granted. Entitlement to service connection for scars on the chest, shoulder, and back. Finally, the Board notes there is a negative nexus opinion in the record with respect to the Veteran's scarring (the presence of which the record confirms). However, that opinion, furnished by a VA examiner with whom the Veteran met in September 2015, is predicated on the assumption that the 1977 motor vehicle accident, as described, did not occur. As explained above, the Board finds the Veteran's statements with respect to the accident credible. Further, there is no alternative explanation in the record for the presence of the scars, and the Veteran has consistently related that they were sustained pursuant to injuries suffered in the accident. As such, with no reason to doubt this contention, the Board finds service connection warranted for the Veteran's scarring. ORDER Entitlement to service connection for a left shoulder disability is granted. Entitlement to service connection for a back disability is granted. Entitlement to service connection for a bilateral knee disability is granted. Entitlement to service connection for a bilateral ankle disability is granted. Entitlement to service connection for scars on the chest, shoulder, and back is granted. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs