Citation Nr: 1803223 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 14-07 215A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a bilateral knee disability also claimed as chronic joint damage. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD K.B. McDonald, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from February 1968 to January 1971, with service in Vietnam from January 1969 to January 1970. He had subsequent inactive service in the US Army Reserves. Among other awards and decorations, the Veteran is in receipt of the Bronze Star Medal. The Board of Veterans' Appeals thanks the Veteran for his honorable service to our country. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which declined to reopen the claim of entitlement to service connection for chronic joint damage, also claimed as a bilateral knee condition. The Board notes that the September 2011 and April 2010 rating decisions denied the Veteran's claim based on the absence of new and material evidence in the case of a prior finally denied claim. However, evidence submitted since the March 2003 rating decision included service treatment and personnel records relating to the Veteran's claim that were not previously of record. VA regulations provide that if, after VA issues a decision on a claim, it receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. § 3.156 (c)(1) (2017). Thus, in this instance, new and material evidence is not required and the appeal may proceed as a reconsideration of the original claim. Furthermore, in the January 2014 Statement of the Case, the RO also adjudicated the underlying claim of service connection, so the Board may now proceed with appellate review of the same. The Veteran appeared before the undersigned Veterans Law Judge in a Travel Board hearing in November 2016 to present testimony on the issue on appeal. He submitted additional evidence at that time, with a waiver of RO consideration of that evidence. FINDING OF FACT The most probative evidence of record fails to demonstrate that a bilateral knee disability had its onset during active service, within one year following separation from active service, or is otherwise related to the Veteran's period of active service. CONCLUSION OF LAW The criteria to establish service connection for a bilateral knee disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist Veterans in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In this case, the Veteran has not referred to any explicit deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (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 [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence within the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the given claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Service Connection Service connection generally requires (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303; see Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Here, the medical evidence reflects that the Veteran is currently diagnosed with bilateral degenerative joint disease of both knees, with prior arthroscopic surgery on the right knee. VA examination, March 2010; Private treatment, December 2009. Thus, there is evidence of a current bilateral knee disability and the first required element to establish service connection is met. The Board now turns to the question of whether there was an in-service incurrence of knee-related disease or injury. To this end, the Veteran initially asserted that his bilateral knee disability, claimed as chronic joint damage, was the result of wearing military boots, and two military vehicle accidents in Vietnam. Veteran's Application for Compensation, July 2002. Over the course of the Veteran's appeals history with VA, the history provided by the Veteran has changed. The Veteran's claim for benefits has now become expressly focused on a single motor vehicle accident alleged to have occurred in Vietnam in or around July 1969, to which he attributes the causation of his current knee problems. Hearing testimony, November 2016. In this respect, the Veteran has repeatedly asserted that as a combat Veteran his word should be taken as truth as to the events occurring in service. Statement in support of claim, March 2011. Under 38 U.S.C. § 1154(b), if a veteran engaged in combat with the enemy during his service, his lay testimony of injuries sustained in service will be sufficient to establish an in-service incurrence so long as it is consistent with the circumstances, conditions, or hardships of that service, and in the absence of evidence to the contrary. 38 C.F.R. § 3.304(d). However, participation in combat is a determination that is to be made on a case-by-case basis, and requires more than just presence in a combat zone. Specifically, a veteran must have "personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality." VAOPGCPREC 12-99 (October 18, 1999). In this case, the Veteran undisputedly served in the Republic of Vietnam. His service personnel records confirm that he served as an officer in the Adjutant General Corps in Support Command as a postal officer handling operational and administrative functions of the 40th Army Postal Unit. While this occupational specialty is not indicative of combat in and of itself, the Board does acknowledge that two documents within the service personnel records reflect that this Veteran participated in military operations against a hostile force wherein the Veteran is described as controlling and managing "his defensive force in an aggressive manner during enemy attacks upon Camp Radcliff." An Khe Detachment Letter Report, July 1969. The Veteran also received an Army Commendation Medal for achievement in connection with military operations "against a hostile force" between May 1, 1969 and June 15, 1969 in Qui Nhon. Citation letter, service personnel records. However, the in-service injury alleged by the Veteran does not involve an enemy attack on Camp Radcliffe, nor does the Veteran allege such. Instead, he states that the injury occurred during an off-site vehicle convoy in which he travelled to inspect a unit mail room. He describes an explosion of an unknown source that happened with a truck forward of the vehicle he occupied. The Veteran's vehicle then collided with a forward vehicle within the convoy. The Veteran describes no engagement with the enemy at any time during this vehicular accident scenario. See Hearing transcript, November 2016; Veteran's written statement, May 2011. The Veteran does not describe the presence of any enemy combatants, nor any incoming fire at the time of the accident. There is no indication from the evidence of record, including the Veteran's account of the accident history, that the incident in question involved combat with the enemy. As such, given the evidence of record, the Board makes a factual finding that the Veteran engaged in combat with the enemy on Camp Radcliff at some point between May 1 and June 15, 1969, but not during the motor vehicle accident alleged by the Veteran. In short, while the Veteran was in combat the injury described is not consistent with the circumstances and conditions of his documented combat service as required by 38 U.S.C. § 1154(b). As such, the lower evidentiary standard of 38 C.F.R. § 3.304(d) does not apply to the alleged motor vehicle accident, and further substantiation is necessary. In support of his contentions, the Veteran has submitted his history of the event through written and sworn testimony, as well as equipment maintenance paperwork detailing repair work to be done on a quarter ton truck. This paperwork consists of a maintenance request form and an equipment inspection and maintenance worksheet that describes repair work to be done to a vehicle including straightening body work, and replacing or repairing a brush guard, fan, radiator, left front tire, left fender, hood, and right windshield crack. This evidence certainly indicates that a quarter ton truck, or jeep, needed repair. It does not identify that the vehicle was involved in a motor vehicle accident, nor does it indicate that the Veteran was present at the time. As such, it has little probative value in relation to the Veteran's current claim for benefits. The Board further notes, as will be detailed below, that the dates on the vehicle maintenance forms indicate the forms are from September 1969, and the Veteran has stated that the jeep accident occurred prior to a July 26, 1969 x-ray detailed in his service treatment records. While not a significant discrepancy in time, this is not the four days asserted by the Veteran's representative as occurring between the date of a foot x-ray showing the absence of fracture, and the date of the vehicle repair, by which the representative attempted to show a correlation between these two events. Hearing transcript, November 2016. The Board has also thoroughly reviewed the Veteran's service treatment records to determine if any bilateral knee condition, or treatment for or residuals of a motor vehicle accident are noted as occurring at any time during active service. The Veteran asserts that during the accident, his knees hit the dash board and he was thrown to the floor. Hearing testimony, November 2016. He reports that following the alleged accident, he was "a bloody mess" and treated by a Marine dispensary where he was stitched up, bandaged and given crutches before being returned to light duty. Id. However, none of this appears in the service treatment records. The Veteran asserts that this is because medical records were not moved with him as he moved from place to place in Vietnam. In his November 2016 hearing testimony, the Veteran stated that due to the nature of his service in Vietnam, "We didn't have health records. We didn't have personnel records. We didn't have any of this fancy stuff ...." However, this assertion as to why a serious motor vehicle accident such as he describes is not documented in his service department files is contradicted by the evidentiary record, specifically as other nearly contemporaneous treatment is reflected in the existing service treatment records within the claims file. While the Veteran was unable to provide a specific date of the alleged motor vehicle accident, he stated that it occurred prior to an x-ray taking place on July 26, 1969. The Veteran states that this July 1969 x-ray was conducted as a result of the accident in question. Hearing transcript, November 2016. Thus, July 1969 is taken as the early delimiter in a timeframe for the alleged accident. The vehicle repair report submitted by the Veteran shows a Julian date of 9247, reflecting the 247th day of the year in 1969, which would equate to September 4. Julian Date Calendar (Perpetual), https://www.fs.fed.us/fire/partners/fepp/julian-calendar.pdf (last visited Nov. 21, 2017). Thus, the Board takes notice that the alleged vehicle accident would have occurred in an approximate range between July and September 1969. During this period, the Veteran's service treatment records reflect he was seen on July 7 for irritation on the top of his right ear resulting from irritation of his glasses frames. He was seen on July 26 for a left foot injury in which x-rays were taken. He was found to have a probable sprain, no fracture, and treated with an ace wrap. The Veteran was seen again in October 1969 for various vaccinations, as well as treatment for recurrent ringworm and allergic rhinitis. Service treatment records. As such, given that treatment for relatively minor medical complaints are documented in the service treatment records during this time frame, the Board finds it highly unlikely that treatment as extensive as that described by the Veteran would not also be of record, despite the circumstances of the Veteran's service in Vietnam at the time. Yet there is no mention of any motor vehicle accident injury, stitches, healing wounds, or further evaluation of any significant musculoskeletal injury in the contemporaneous treatment records. Given the evidence taken as a whole, the Board does not find the Veteran's statements to be credible in regard to the claimed in-service motor vehicle accident resulting in knee injuries. Furthermore, upon separation from active service in January 1971, although the Veteran reported having experienced swollen or painful joints during his military service, he did not report involvement in a motor vehicle accident, nor knee specific complaint or injury despite the particular opportunity and venue to do so. Instead, the examiner noted the Veteran's complaint of swollen or painful joints as involving swelling of IP (interphalangeal) joints when it rains. Service treatment records, January 1971. This inconsistency further undermines the credibility of the Veteran's statements. In the absence of medical, or credible lay evidence of in-service incurrence of bilateral knee disease or injury, service connection is not warranted on a direct basis. 38 C.F.R. § 3.303. The Board acknowledges the Veteran has submitted a positive nexus statement from a private medical provider relating his currently diagnosed osteoarthritis to the claimed motor vehicle accident in service. However, as the in-service event that this opinion relies upon has been found not to be credible, the nexus opinion must also be set aside as it has no probative value. The Board now turns to the other alternate theories of entitlement to service connection raised by the record. Service connection can also be established for a current disability on the basis of a presumption that certain chronic diseases, to include arthritis, manifested to a degree of 10 percent or more within one year of service, on the understanding that such a chronic disease likely then had its onset during that prior period of service. 38 U.S.C. § 1112; 38 C.F.R. § 3.307(a)(3). However, in this case, the Veteran's subsequent examinations for his service in the US Army Reserves reflect no knee disability for many years after the active duty period of service. On a February 1975 examination, more than one year after active service, the Veteran responded "no" to questions as to whether he had swollen or painful joints, a "trick" or locked knee, or any arthritis, bone or joint deformity. Service treatment records. The Veteran has submitted documentation of a disability certificate to restrict running to less than 300 yards in August 1979 and a permanent profile attached to his health records for unspecified orthopedic reasons in November 1992. However, these instances are respectively over 8 and 20 years after his discharge from active service, and do not show a knee-specific disability at those times. Given the evidence of record does not show arthritis of the knees until many years after the Veteran's separation from active military service, service connection is not warranted on a presumptive basis for chronic disease under 38 C.F.R. § 3.307(a). Even where there is no manifestation of a chronic disease within one year of service, service connection can still be established through continuity of symptomatology for recognized chronic diseases. 38 C.F.R. § 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (2013). Continuity of symptomatology requires that the chronic disease be shown as such during service. 38 C.F.R. § 3.303 (b). In-service showing of a disease means there is a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. Here, the Veteran states "I had no trouble before I went to Vietnam, and I've had trouble ever since." Hearing transcript, November 2016. However, this is not supported by the evidence of record. As discussed above, the Veteran's degenerative joint disease or arthritis were not shown during service. Furthermore, several years following active service, the Veteran did not report experiencing joint problems in February 1975. He did not exhibit chronic arthritis during service, nor continuity of symptomatology since service. Service connection is not available under 38 C.F.R. § 3.303(b) in this instance. Finally, service connection can also be established in certain circumstances based on exposure to specific chemical herbicide agents used in support of military operations in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6). "A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service." 38 C.F.R. § 3.307 (a)(6)(iii). In this instance, the Veteran is entitled to the presumption of herbicide exposure while serving in Vietnam. Id. However, neither degenerative joint disease, osteoarthritis, nor chronic joint damage are among the exclusive list of conditions which are covered by this presumption. 38 C.F.R. § 3.309(e). That is, the National Academy of Sciences has not found sufficient epidemiological evidence to establish a medical link between herbicide agent exposure and the development of these disorders. See Health Outcomes Not Associated with Exposure to Certain Herbicide Agents: Veterans and Agent Orange, 75 Fed. Reg. 81332 (Dec. 27, 2010). As such, service connection on this presumptive basis is not warranted for this claim. 38 C.F.R. § 3.307. Finally, after careful consideration of all evidence available in a given case, any reasonable doubt, meaning a point where there is an approximate balance of positive and negative evidence regarding any issue material to the determination (a legal condition called equipoise), VA will resolve that doubt in the Veteran's favor. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Alternatively, to deny a claim on its merits, the evidence must weigh against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Here, the evidence weighs against the claim, and service connection is not warranted. ORDER Service connection for a bilateral knee disability, also claimed as chronic joint damage, is denied. ____________________________________________ K.J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs