Citation Nr: 1801767 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 16 26 636 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a lumbar spine disorder. 2. Entitlement to service connection for a left knee disorder. REPRESENTATION Veteran represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD T. Berryman, Associate Counsel INTRODUCTION The Veteran had active service in the Army from March 1957 to March 1959. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran is not shown to have a chronic lumbar spine disorder. 2. The Veteran is not shown to have a chronic left knee disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disorder have not been met. 38 U.S.C.§ 1131 (2012); 38 C.F.R. § 3.303 (2017). 2. The criteria for service connection for a left knee disorder have not been met. 38 U.S.C.§ 1131 (2012); 38 C.F.R. § 3.303 (2017). 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. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was met, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of the claims at this time is warranted. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The National Personnel Records Center (NPRC) reported that the Veteran's service treatment records (STRs) are not available. Apparently, they were destroyed in the fire at the NPRC in 1973. The Board recognizes its heightened duty to explain its findings and conclusions and to consider the benefit of the doubt in cases where records have been destroyed by the fire. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991); Dixon v. Derwinski, 3 Vet. App. 261 (1992). A diligent effort to obtain the Veteran's STRs from the NRPC was made, which indicated the Veteran's records were not available. Additionally, the Veteran reported that the only treatment he received for either a lumbar spine disorder or a left knee disorder was in 1958. The Veteran has not submitted any evidence of current medical treatment, nor has he submitted information of any current medical providers. Finally, the Veteran was offered the opportunity to testify before the Board, but he declined. The Board notes that the duty to assist a claimant is not a one-way street, and in this case the Veteran has failed to cooperate in the development of his claims. Olsen v. Principi, 3 Vet. App. 480 (1992); Wood v. Derwinski, 1 Vet. App. 406 (1991); 38 C.F.R. § 3.655. While it is regrettable that no service treatment records are available, the Veteran has effectively foreclosed all the other avenues that might give VA the ability to assist him. For example, he declined to have either a Board or DRO hearing at which he might have been able to explain more about his alleged in-service injury. A review of his claims file notes only a vague reference to falling in a fox hole. The Veteran provided no details about such an incident, what, if any treatment was rendered after, what, if any injuries occurred. Likewise, the Veteran has not identified any post-service treatment for either his back or left knee. He has not provided any description in his statements that would allow VA to even concede the current presence of either a back or knee disability. No VA examination was requested in relation to the issues of service connection for a lumbar spine disorder or a left knee disorder, but U.S. Court of Appeals for the Federal Circuit has recognized that there is not a duty to provide an examination in every case. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Rather, the Secretary's obligation under 38 U.S.C. § 5103A(d) to provide the Veteran with a medical examination or to obtain a medical opinion is not triggered unless there is an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability. See McLendon, 20 Vet. App. at 81. This standard has not been met in this case. Essentially, beyond the Veteran filing a claim for service connection, there is no evidence showing a current lumbar spine disorder or a left knee disorder, and no assertion that there was a specific back or knee injury in service. As such, there is no basis at this time to order a VA examination. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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). Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from 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 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. The Veteran filed his service connection claims in May 2014, which were denied by the February 2015 rating decision. The Veteran has vaguely asserted that he injured his lumbar spine and left knee during training and received treatment in 1958. As discussed above, the Veteran's STRs are regrettably unavailable. However, the Veteran's claims file does not contain any medical evidence showing any complaints, symptoms, treatment, or diagnoses for a lumbar spine disorder or a left knee disorder at any time. As such, the record does not show any current chronic lumbar spine disorder or current chronic left knee disorder. In the absence of proof of a current disability, there can be no valid claim for service connection. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Giplin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (indicating service connection presupposes a current diagnosis of the condition claimed). The requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim...even though the disability resolves prior to the Secretary's adjudication of the claim." McClain v. Nicholson, 21 Vet. App. 319 (2007); see also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Here, the Veteran has not submitted any medical evidence showing that he has a current lumbar spine disorder or a left knee disorder, and he has not even described any knee or back symptomatology that could be construed as suggesting the presence of a disability. Accordingly, the Board finds that the evidence is against the claims and entitlement to service connection for a lumbar spine disorder and a left knee disorder are denied. ORDER Service connection for a lumbar spine disorder is denied. Service connection for a left knee disorder is denied. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs