Citation Nr: 1800488 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 12-36 084 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a disability of the right upper extremity. 2. Entitlement to service connection for a left knee disability. 3. Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from July 1976 to July 1979. He had a second period of active service dating from July 1979 to December 1985, from which he was discharged under other-than-honorable conditions. In a decision approved in August 2017, VA determined that the Veteran's second period of active duty is considered to be under dishonorable conditions for VA benefits and a bar to benefits. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran was scheduled to appear at the Waco RO for a personal hearing before a Veterans Law Judge in August 2015; however, he withdrew his request for a hearing pursuant to 38 C.F.R. § 20.704(e). In Board decisions dated September 2015 and August 2016, the claims were remanded for further evidentiary development. As will be discussed below, a review of the record reflects substantial compliance with the Board's Remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The VA Appeals Management Center (AMC) most recently continued the previous denials in a September 2017 supplemental statement of the case (SSOC). The Veteran's VA claims file has been returned to the Board for further appellate proceedings. FINDINGS OF FACT 1. A disability of the right upper extremity was not present during the Veteran's honorable period of active service, nor does the record contain any indication that any current right upper extremity disability is causally related to his honorable period of active service or any incident therein. 2. A left knee disability was not present during the Veteran's honorable period of active service, nor does the record contain any indication that any current left knee disability is causally related to his honorable period of active service or any incident therein. 3. A low back disability was not present during the Veteran's honorable period of active service, nor does the record contain any indication that any current low back disability is causally related to his honorable period of active service or any incident therein. CONCLUSIONS OF LAW 1. A disability of the right upper extremity was not incurred in the Veteran's honorable period of active service. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. A left knee disability was not incurred in the Veteran's honorable period of active service. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 3. A low back was not incurred in the Veteran's honorable period of active service. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Pursuant to the September 2015 Board Remand, the AOJ obtained the Veteran's outstanding service treatment and personnel records, including records from Ireland Army Hospital. In compliance with the August 2016 Board Remand, the AOJ issued an administrative decision dated in August 2017, in which it determined that the Veteran's other than honorable discharge from his second period of active duty service (July 1979 to December 1985) was dishonorable for VA purposes and therefore a bar to benefits. Thus, the Board finds that VA does not have a duty to assist that was unmet. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011). II. Analysis 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. § 1110; 38 C.F.R. § 3.303(a). Disorders diagnosed after discharge may still be service connected when all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert, 1 Vet. App. at 54. In this matter, the Veteran contends that he has disabilities of the right upper extremity, left knee, and low back, which are related to his military service. For the reasons set forth below, the Board concludes that service connection is not warranted. Notably, the Veteran's service treatment records (STRs) from his honorable period of active duty service (July 1976 to July 1979) are absent any treatment for, or diagnosis of, disabilities of the right upper extremity, left knee, or low back. On his application for benefits, the Veteran reported that the disabilities arose in 1977. Efforts to obtain hospital reports from Fort Knox, where he reports treatment for injuries in an accident, yielded a response showing only hospitalization in May 1979 for dental extractions. During that hospitalization, review of systems revealed no reports of a prior motor vehicle accident, no trauma, and no musculoskeletal complaints. Indeed, the Veteran was shown to have full range of motion. The Board finds that it is likely that the Veteran would have mentioned a roll-over jeep accident at that time when asked about trauma to the temporomandibular joint had such event occurred. See AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). A service treatment record dated in October 1980 noted that the Veteran complained of right thigh pain and provided a history of having an accident one year prior. He noted that he had been going to physical therapy from July to November 1979 with no help; no description of the accident was provided. Thus, it appears the accident the Veteran is referring to in his claim may have occurred in 1979, rather than 1977 as initially reported. To this end, service after July 15, 1979 is during a period that was terminated by an other-than-honorable discharge. However, any evidence of injury or disability arising during the above-noted period of dishonorable service are disregarded as entitlement to benefits based on such period is precluded by law. 38 U.S.C. § 5303; 38 C.F.R. § 3.129(a). As indicated above, the STRs of record dated from the Veteran's period of honorable service do not document a jeep accident or any injuries of the right arm, left knee, or low back. Although the Veteran reports that these injuries occurred during his honorable period of service, given the inconsistencies in the contemporaneous record described above, the Board assigns his assertions limited probative weight. In short, there is no competent and probative evidence that the Veteran's disabilities of the right upper extremity, left knee, and low back were incurred during his honorable period of active duty. As indicated above, there is no evidence that the Veteran suffered from any right arm, left knee, or low back injuries during his period of honorable military service. Notably, VA treatment records dated in April 2011 indicate that the Veteran underwent wrist surgery in 1989 after an injury, and had arthroscopic surgery on his knee in 2005. VA treatment records dated in July 2006 document a diagnosis of mild osteoarthritis, confirmed by x-ray. VA treatment records dated in November 2008 indicate that he suffered a sprain of the lumbar region at that time. In addition, VA treatment records dated in March 2010 indicate that the Veteran's left knee pain began following a lifting accident at work. Significantly, there is no evidence to suggest that the Veteran was diagnosed with disabilities of the right upper extremity, left knee, or low back for years after his separation from his period of honorable service. Moreover, the evidence of record does not demonstrate that the Veteran had continuous right upper extremity, left knee, or low back symptoms following his July 1979 separation from active duty service. Additionally, no medical professional has suggested that the Veteran suffers from disabilities of the right upper extremity, left knee, or low back that are related to his military service, and neither the Veteran nor his representative has presented, identified, or even alluded to the existence of any such medical evidence or opinion. See 38 C.F.R. § 3.159(c)(4)(i); cf. Duenas v. Principi, 18 Vet. App. 512, 517 (2004), citing Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003) (noting that a medical examination conducted in connection with claim development could not aid in substantiating a claim when the record does not already contain evidence of an in-service event, injury, or disease). In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b) (2014); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). The Veteran's claims of entitlement to service connection for disabilities of the right upper extremity, left knee, and low back are therefore denied. ORDER Entitlement to service connection for a disability of the right upper extremity is denied. Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for a low back disability is denied. ____________________________________________ K. CONNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs