Citation Nr: 1802722 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 12-17 520A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a bilateral knee disability. 2. Entitlement to service connection for a back disability. 3. Entitlement to service connection for a bilateral shoulder disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The appellant served on active duty for training (ACDUTRA) from March 5, 1978 to March 28, 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2015, the appellant testified at a video conference hearing held before the undersigned Veterans Law Judge. A transcript of this hearing is of record. In January 2016, the Board remanded this matter for additional evidentiary development. FINDINGS OF FACT The appellant's current right knee, left knee, back, left shoulder, and right shoulder disabilities were not shown until many years after his military service, and are not related to his military service. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral knee disability have not been met. 38 U.S.C. §§ 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for a back disability have not been met. 38 U.S.C. §§ 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 3. The criteria for service connection for a bilateral shoulder disability have not been met. 38 U.S.C. §§ 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Under the Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist a claimant in the development of a claim. VA's duty to notify was satisfied by letters in March 2010, May 2010, October 2010, and March 2017. See 38 U.S.C. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In addition, the Board finds that the duty to assist a claimant has been satisfied. The appellant's available service treatment and personnel records are on file, as are all available post service treatment records identified by the appellant. To the extent records have not been obtained, the RO obtained negative responses from pertinent sources concerning the availability of any additional records, and also notified the appellant of these circumstances. As discussed more fully below, the Board does not find any credible evidence linking the Veteran's current disabilities to his military service. Thus, a medical opinion is not required in the adjudication of this matter. Finally, the appellant was provided with a November 2015 Board video conference hearing, and there is no allegation that the hearing provided to the appellant was deficient in any way. Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). Additionally, the RO has substantially complied with the Board's January 2016 remand. Specifically, in September 2016, the RO requested that the appellant identify any sources of additional post service medical treatment records that may be available. To date, no response has been received. The RO also obtained the appellant's records from the Social Security Administration. Finally, the RO made a final attempt to obtain the appellant's complete service treatment and personnel file from the National Personnel Records Center (NPRC) in St. Louis, Missouri. It also made a follow up request for these service records from the VA Record Management Center in March 2017, and informed the appellant of their unavailability that same month. The Board acknowledges its heightened duty "to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing the claim, and to explain its decision when serviced records are lost or missing. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (citing Russo v. Brown, 9 Vet. App. 46, 51 (1996)); see also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, no presumption, either in favor of the claimant or against VA, arises when there are lost or missing service records. See Cromer, 19 Vet. App. at 217-18 (Court declined to apply "adverse presumption" against VA where records had been lost or destroyed while in Government control because bad faith or negligent destruction of the documents had not been shown). After a careful review of the file, 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). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir. 2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Service connection for certain chronic diseases, to include arthritis, may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The appellant filed his present claim seeking service connection for bilateral knee, back, and bilateral shoulder disabilities in March 2010. He attributes these conditions to a fall while in the shower during his basic training. Initially, the Board finds that the Veteran does currently have left knee, right knee, back, left shoulder, and right shoulder disabilities. Accordingly, the Board's decision shall focus on whether these conditions are related to his military service. Based upon a longitudinal review of the record, the Board concludes that service connection is not warranted for any current knee, back, or shoulder disability. The appellant served on active duty for training from March 5, 1978, to March 28, 1978. His complete service treatment and personnel records could not be located, and the limited records that have been received do not reference an injury. Following his separation from service, the first post service evidence referencing a knee, back, or shoulder disability is an April 1995 treatment report. This is over 17 years after the appellant's discharge from the service. To the extent that the appellant claims that his current knee, back, and shoulder disabilities began during his military service, the Board finds such assertion to be lacking in credibility. Post service treatment records do not support this contention. No reference to any ongoing history of knee, back, or shoulder problems since his military service is found in the earlier treatment reports of record. While the Board acknowledges that the absence of any corroborating medical evidence supporting his assertions, in and of itself, does not render his statements incredible, such absence is for consideration in determining credibility. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (noting that the absence of contemporaneous medical documentation may go to the credibility and weight of appellant 's lay testimony, but the lack of such evidence does not, in and of itself, render the lay testimony incredible). In addition, a review of the records received from the Social Security Administration reveals that he worked physically strenuous jobs following his separation from military service, including as a construction laborer, machinist, warehouseman, and maintenance man. Specifically, his employment as a maintenance man in 1998 and 1999 involved lifting steel, pallets, and shelfs all day long. His employment as a machinist from 1993 to 1995 involved frequently lifting steel weighing 50 pounds or more. Moreover, the appellant as a layperson has not been shown to be capable of linking any of his current knee, back, or shoulder disabilities to his military service, as such matters requires medical expertise to determine. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). As noted above, his statements of ongoing symptomatology for over 17 years are contradicted by his physically intensive post service history of employment. Accordingly, his statements regarding causation are not competent evidence to establish service connection. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant 's claims, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Service connection for a bilateral knee disability is denied. Service connection for a back disability. Service connection for a bilateral shoulder disability. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs