Citation Nr: 1702951 Decision Date: 02/02/17 Archive Date: 02/15/17 DOCKET NO. 13-22 300 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for a left knee disability. 3. Entitlement to service connection for a left ankle disability. 4. Entitlement to service connection for a right lower extremity disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty from June 1986 to October 1986. He had service in the Army National Guard from November 1985 to March 2005. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The issue of entitlement to service connection for a right lower extremity disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's low back disability was not incurred in service and was not caused or permanently aggravated by his active military service. 2. The Veteran's left knee disability was not incurred in service and was not caused or permanently aggravated by the Veteran's active military service. 3. The Veteran's left ankle disability was not incurred in service and was not caused or permanently aggravated by his active military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a low back disability have not been met. 38 U.S.C.A. §§ 101, 1110, 1112, 1131 (West 2014); 38 C.F.R. § 3.303 (2016). 2. The criteria for entitlement to service connection for a left knee disability have not been met. 38 U.S.C.A. §§ 101, 1110, 1112, 1131 (West 2014); 38 C.F.R. § 3.303 (2016). 3. The criteria for entitlement to service connection for a left ankle disability have not been met. 38 U.S.C.A. §§ 101, 1110, 1112, 1131 (West 2014); 38 C.F.R. § 3.303 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all of the evidence in the claims folder. 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 these claims. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2016). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Active military service includes any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(21) and (24) (West 2014); 38 C.F.R. § 3.6(a) and (d) (2016). It follows that service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing active duty for training, or from injury incurred or aggravated while performing inactive duty for training. 38 U.S.C.A. §§ 101(24),106, 1131. Active duty for training is defined, in part, as full-time duty in the Armed Forces performed by Reserves or National Guard members for training purposes. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). Inactive duty for training is generally duty (other than full-time duty) prescribed for Reserves or performed by a member of the National Guard of any state. 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d). Annual training is an example of active duty for training while weekend drills are inactive duty. VA's Office of General Counsel has defined "injury" as harm resulting from an external trauma, while "disease" is defined as some type of internal infection or degenerative process. VAOPGCPREC 04-2002 (May 14, 2002). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2016). The Veteran is seeking entitlement to service connection for low back, left knee, and left ankle disabilities. The Veteran claims that during a period of active duty training, a military Humvee backed into him while he was talking to a driver in a private vehicle and he was pinned between the two vehicles. He testified that immediately following the accident, he experienced pain in his back, left knee, and left ankle, which has persisted ever since. As an initial matter, the Board notes that most of the Veteran's service treatment records are missing and presumed lost. The Board finds that additional efforts to obtain these records would be futile. See 38 U.S.C.A. § 5103A(b)(3). The Board has considered the U.S. Court of Appeals for Veterans Claims (Court) statement in Washington v. Nicholson, 19 Vet. App. 362, 371 (2005) that: [I]n cases where, as here, the appellant's SMR's have been lost or destroyed, the Board's obligation to provide well-reasoned findings and conclusions to evaluate and discuss all of the evidence that may be favorable to the appellant, and to provide an adequate statement of the reasons or bases for its rejection of such evidence is heightened. The Board has undertaken its analysis with this heightened duty in mind. As noted above, most of the Veteran's service treatment records are missing; however, service personnel records confirm that in May 1995, the Veteran was indeed struck by a military vehicle and pinned between it and a privately owned vehicle, suffering contusions of the right thigh. He received outpatient treatment at Winn Army Community Hospital and his condition was characterized as temporary, rather than permanent. Significantly, no injury to the back, left knee, or ankle was noted. Additionally, of record are a Report of Medical Examination and Report of Medical History completed in November 2003. The November 2003 Report of Medical Examination is negative for any disability of the back/spine, left knee, or left ankle. The only disabilities noted were hypertension and hypercholesterolemia. On the November 2003 Report of Medical History, the Veteran denied knee or foot problems, although he did report a history of back problems. At a May 2006 Initial Medical Review, the Veteran did report back problems, as well as hypertension , and hypercholesterolemia. Private medical records do not show any complaints of or treatment for a low back, left knee, or left ankle disability until years after the 1995 accident. Additionally, these records show that the Veteran reported injuring his low back on the job in 1998, with subsequent non-service related re-injuries. The Veteran was afforded a VA examination in June 2012. The examiner diagnosed the Veteran with degenerative disc disease of the lumbar spine, mild osteoarthritis of the left knee, and left ankle sprain. He opined that it is less likely than not the Veteran's current low back, left knee, and left ankle conditions are related to the May 1995 accident in service, noting that other than the initial line of duty determination, there are no further complaints related to the Veteran's accident. The Veteran has not presented any medical evidence that contradicts the examiner's conclusion that any current disabilities of the low back, left knee, and left ankle are unrelated to his 1995 accident. Based on all the above evidence, entitlement to service connection for a low back disability, a left knee disability, and a left ankle disability must be denied. While the Veteran is competent to report symptoms of pain in his back and left lower extremity following the 1995 accident, the Board does not find his testimony credible. As an initial matter, the Board notes that the line of duty determination, prepared at the time of the accident, does not support the Veteran's claim that he injured his back, left knee, or left ankle. The only disability noted at that time was a contusion of the right thigh. If there had been any significant injury to the back or left lower extremity, it is highly probable that such an injury would have also been documented. Additionally, although most of the service treatment records are missing, a November 2003 Report of Medical History and Report of Physical Examination are of record. No disability of the back, left knee, or left ankle was noted by the examining physician at that time. The Veteran did not report any left knee or ankle problems or relate any past injury to these joints. He did report low back problems, but did not attribute them to a specific injury and his private medical records document a history of on-the-job injury to the lower back. The Board finds these contemporaneous records to be more credible than statements made by the Veteran more than a decade after the fact as part of a claim for compensation. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the veteran). Furthermore, even if the Board were to accept that the Veteran's account that he suffered from back and left lower extremity pain following the 1995 accident, the preponderance of the evidence does not support a finding that any trauma the Veteran suffered that day resulted in permanent disability. There is no evidence of any treatment for low back, left knee, or left ankle problems in the years immediately after the accident, suggesting that any injury the Veteran sustained in May 1995 was temporary and resolved without residual complaints. The Board notes that the Veteran remained a member of the Army National Guard for nearly a decade following the 1995 accident, and there is no evidence that any injury related to that incident prevented him from performing his military duties during active and inactive duty training during that time period. While the Veteran has offered his own opinion as to the etiology of his claimed disabilities, he has not demonstrated that he has any knowledge or training in determining the etiology of such conditions. In other words, he is a layman, not a medical expert. The Board recognizes that there is no bright line rule that laypersons are not competent to offer etiology opinions. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (rejecting the view that competent medical evidence is necessarily required when the determinative issue is medical diagnosis or etiology). Evidence, however, must be competent evidence in order to be weighed by the Board. Whether a layperson is competent to provide an opinion as to the etiology of a condition depends on the facts of the particular case. In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) drew support from Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) for support for its holding. Id. In a footnote in Jandreau, the Federal Circuit addressed whether a layperson could provide evidence regarding a diagnosis of a condition and explained that "[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although the Veteran seeks to offer etiology opinions rather than provide diagnoses, the reasoning expressed in Jandreau is applicable. The Board finds that the question of whether the Veteran currently has low back, left knee, and left ankle disabilities due to an accident in service is too complex to be addressed by a layperson. This connection or etiology is not amenable to observation alone. Rather it is common knowledge that such relationships are the subject of extensive research by scientific and medical professionals. Hence, the Veteran's opinion of the etiology of his current disability is not competent evidence and is entitled to low probative weight. The Board gives greater weight to the opinion of the VA medical examiner, as well as to the contemporaneous medical evidence. For all the above reasons, entitlement to service connection for a low back disability, a left knee disability, and a left ankle disability are denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2016). The Duty to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), 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 C.F.R. § 3.159 (2016). Here, the Veteran was provided with the relevant notice and information prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). He has not alleged any notice deficiency during the adjudication of his claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. Here, the Veteran's available service records, VA records, and identified private treatment records have been obtained and associated with the claims file. The Veteran was also provided with a VA examination which contains a description of the history of the disabilities at issue; documents and considers the relevant medical facts and principles; and provides opinions regarding the etiology of the Veteran's claimed conditions. VA's duty to assist with respect to obtaining relevant records and an examination has been met. 38 C.F.R. § 3.159(c); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). ORDER Service connection for a low back disability is denied. Service connection for a left knee disability is denied. Service connection for a left ankle disability is denied. REMAND The issue of entitlement to service connection for a disability of the right lower extremity was denied by the RO in a July 2014 rating decision. The Veteran submitted a notice of disagreement with this decision in August 2014, but the RO has not issued a statement of the case for the above issue. Accordingly, the Board is required to remand the issue to the RO for issuance of a statement of the case. See Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: The RO should issue a statement of the case for the issue of entitlement to service connection for a right lower extremity disability. See Manlincon v. West, 12 Vet. App. 238 (1999). After the RO issues a statement of the case, then if, and only if, the Veteran timely files a VA Form 9, Substantive Appeal, or other correspondence containing the necessary information, this issue may be returned to the Board for adjudication. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs