Citation Nr: 1803742 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 14-25 224 ) DATE Advanced on the Docket ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a bilateral hip disability. 2. Entitlement to service connection for a bilateral knee disability. 3. Entitlement to service connection for a lumbar spine disability. ORDER Service connection for a bilateral knee disability is denied. Service connection for a lumbar spine disability is denied. FINDINGS OF FACT 1. The Veteran's current bilateral knee disability did not manifest within one year of his separation from service and is not otherwise etiologically related to an in-service injury, event, or disease. 2. The Veteran's current lumbar spine disability did not manifest within one year of his separation from service and is not otherwise etiologically related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral knee disability have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). 2. The criteria for service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1946 to July 1947. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In November 2015, the Veteran testified at a hearing before a now retired Veterans Law Judge (VLJ). In an October 2017 letter, the Board notified the Veteran that the VLJ who conducted his November 2015hearing had retired; this letter gave the Veteran the option of electing a new hearing before a different VLJ who would ultimately decide his claim or proceeding without a new hearing. See 38 C.F.R. § 20.707 (2017) (requiring the VLJ who conducted a hearing to participate in the final determination on a claim). The Veteran did not respond to this letter. Therefore, the claim is ready for adjudication. In February 2016, the Board remanded this matter for further evidentiary development. I. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. II. Bilateral Knee and Lumbar Spine Disabilities The Veteran asserts that he has bilateral knee and back disabilities that are related to service. Specifically, he asserts that he injured his back and knees during a training exercise in service. As an initial matter, the Board acknowledges that the Veteran's service treatment records have not been associated with the evidence of record. The RO has repeatedly attempted to obtain the Veteran's service treatment records, receiving multiple responses that they were unavailable, as they were destroyed in the 1973 fire at the National Personnel Records Center. In a March 2011 VA Memorandum, the RO made a formal finding regarding the unavailability of the Veteran's service treatment records and sent a letter to the Veteran advising him that his records had been destroyed in a fire and were unavailable. Additionally, the evidence of record demonstrates that the Veteran has been aware of the unavailability of these records for many years. In such cases, there is a heightened obligation to assist the appellant in the development of the case, to explain findings and conclusions, and to consider carefully the benefit of the doubt rule in cases, such as in this situation, in which records are presumed to have been or were destroyed while the file was in the possession of the government. See Washington v. Nicholson, 19 Vet. App. 362, 369- 70 (2005); see also Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005) (citing O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). However, the legal standard for proving a claim for service connection is not lowered. Rather, it increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). Post-service treatment records reflect a January 1978 VA clinical record noting the Veteran's complaint of back pain after training in the Army. In an August 1978 statement, the Veteran reported that he injured his knee pushing a Jeep in service. A February 2002 private treatment record shows that the Veteran was involved in a motor vehicle accident where he suffered a lower left leg contusion. Upon physical examination, range of motion of the knee was pain free. VA treatment records list that the Veteran was diagnosed with osteoarthrosis involving the knee with an onset of 2005. A January 2008 VA treatment record reflects an x-ray of the Veteran's lumbar spine revealing that there were minor degenerative changes present. A July 2009 VA treatment record shows that the Veteran was able to unload chairs off of a truck without shortness of breath. A May 2010 private treatment record reflects a diagnosis of degenerative joint disease (DJD) of the knee. July 2011 VA x-rays show that the Veteran had significant osteoarthrosis in his left knee, more than his right. He also had mild osteoarthritis in his low back. In June 2014, the RO obtained a VA medical opinion regarding the etiology of the Veteran's bilateral knee and back disorders. The VA examiner found the Veteran's bilateral knee and back disorders were "less likely than not (less than 50 percent probability)" due to the Veteran's active duty service reasoning, in part, that the Veteran "required no care for these areas for decades after service." In the February 2016 Board remand, the Board found that this statement contradicted more recent evidence of record as the Veteran testified he did seek treatment approximately one year after service, that he continued to experience pain following service, and that he was unable to seek medical treatment as often as he would have liked due to financial reasons. As this medical opinion was based, in part, on an inaccurate factual premise, the Board remanded this matter to obtain new VA examinations. Pursuant to the February 2016 Board remand, the Veteran underwent VA examination of his knees and lumbar spine in May 2016. With regard to his back claim, the Veteran was diagnosed with degenerative arthritis of the lumbar spine and intervertebral disc syndrome during the May 2016 VA examination. He related his belief that his back problem began during early training in Mississippi around the time of his induction into military. The examiner wrote that the Veteran worked in labor positions for many years and the first mention of back problems did not occur for some years post military. The Veteran gave a history of early care by a medical practice in Smithfield, VA which the examiner pointed out was not founded until the later 1950s to early 1960s per the biography of the physician the Veteran gave as his early caregiver, Dr. B. J. The examiner noted that his first mention of back issues in the claims file was reflected in 1977, about 30 years after active duty. The Veteran was unable to recall any prior injuries although records reflected a motor vehicle accident in 2002 with whiplash. In 2009, there was a notation that he was able to off load trucks and climb two flights of stairs without symptoms. He was 83 years old. The examiner also noted that the Veteran gave a "very interesting" distant history of his experiences post the training incident at time of entry into the military. He related being sent to the Philippines post basic training where he worked in construction as a large equipment mechanic, rebuilding a war-damaged building and the airstrip at Clark Field, Manila. The examiner stated that this implied that he was fit enough to do this type of labor despite the earlier incident. With regard to his bilateral knee claim, the Veteran was diagnosed with bilateral knee DJD during the May 2016 VA examination. The Veteran reported working in various labor positions including that of a farmer, having 15 children, and being a WWII era veteran. The examiner wrote that the Veteran's history could not be reliably construed and he had to be re-directed often during the process. His comorbid conditions included CAD post CABG, multi-joint DJD and enesthopathy, asthma, hypertension, prostate problems, and he had a cerebrovascular accident (CVA) in the past. The Veteran believed his current bilateral knee DJD was the result of his 18 months of service due to long marches and field training. The Veteran described his pain as a chronic daily, dull aching that was worse in cold weather and changed depending upon the weather. The examiner stated that the Veteran's poor balance was due to his prior CVA. Following review of the Veteran's claims file, interview and examination of the Veteran, the examiner opined that the Veteran's claimed conditions were less likely than not incurred in or caused by the claimed in-service injury or event. The examiner noted that the Veteran's November 2015 Board hearing testimony was read and considered in the following opinion. The examiner stated that the Veteran had a diagnosis of DJD of the knees and lumbar spine in the setting of advanced age; therefore, these conditions were considered together in the following rationale. She pointed out that the Veteran's first back complaints were during his 50s and that the diagnosis of DJD of his lumbar spine was found in the early 2000s; and while in his 70s, he was diagnosed with DJD of the bilateral knees in 2005 at age 79. His risk factors included age, employment history, smoking, weight, and gait abnormality associated with his 2001 CVA. The examiner noted that the Veteran was a difficult historian, so a Folstein mini-mental exam was done with score of 20/30 indicating a mild dementia with memory issues. It was further noted that the Veteran was very focused on the name of the other soldier who he reported as carrying in the field exercise but was unable to give further details of the incident. The examiner stated that according to Hazzard's Principles of Geriatric Medicine, 4th edition, page 205, arthritis is reported to occur in only 19.4 out of 1000 cases of African Americans under 45 years old, but the number increases to 291.3 out of 1000 cases between the ages of 45 and 64 and to 636.8 out of 1000 cases between the ages of 65 to 74. The Veteran's first recorded complaints took place many years post his brief military service and in the timeframe where arthritis diagnosis increased dramatically between ages 45 to 64 years old. The examiner stated that the history of his early care appeared to be in error as he was unable to recall any physician's name other than Dr. B. F. Jameson of Smithfield Medical Center, whose practice did not begin until the late 1950s at best. The examiner stated that the Veteran's work in labor positions and his smoking were two other risk factors for the early development of DJD and because the onset of arthritis in the setting of repetitious motion increases numerically (i.e. the more you use the joint, the more it wears), his long period of labor certainly outweighed his 18 months of military service with fitness training and marches. The examiner further provided that in a 1993 to 1994 NHIS survey, 45 percent of persons aged 65 or older reported arthritis. The examiner also indicated that the Veteran has had an elevated BMI since at least 1995, thereby increasing the workload of the weight bearing joints of his knees and hips. Multiple medical sources including Mayo Clinic acknowledge the increased risk of AO due to obesity. She stated that current research has found a link between chemical triggering the inflammatory cascade and obesity so it is not the workload that places one at risk for osteoarthritis when overweight. Although the Veteran did not recall this during the examination, the examiner noted that he was treated for a motor vehicle accident in 2002 with whiplash and complaints of left knee problems, thereby providing another risk factor for the development of DJD (trauma). The Veteran's recall of his duties while stationed in Manila indirectly point to a recovery from the earlier incident while in basic training as he did not recall limited duty status. In conclusion, the examiner found that based on the above evidence, while within the realm of medical possibility, it appeared less likely than not that the Veteran's current low back and bilateral knee DJD was incurred in or due to the training incident while on active duty. The Board finds that VA provided an adequate examination regarding the Veteran's claims. In particular, the May 2016 VA examiner clearly considered and discussed the Veteran's lay reports of an in-service injury, as well as his reports of continuous symptoms since separation from service. An examiner is not required to comment on every facet of an examination or meet a reasons and bases requirement. See Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012); Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (noting that the law imposes no reasons-or-bases requirement on examiners). The May 2016 VA examiner considered an accurate factual history of the claimed disabilities and provided an adequate rationale to support her opinion that the Veteran's lumbar spine and bilateral knee disabilities are not the result of a disease or injury in service. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). While the Veteran is competent to report observable symptoms like back and knee pain, he does not possess the requisite skill or training to address more complex medical questions such as the etiology or causation for medical conditions that are beyond lay observation like degenerative joint disease. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The May 2016 examiner considered all the evidence regarding a potential nexus to service and determined the current lumbar spine and bilateral knee disabilities more likely resulted from post-service factors. In so much as the Veteran's current lumbar spine and bilateral knee disabilities constitute a chronic disease within the meaning of 38 C.F.R. § 3.309, the Board finds the presumptive provisions of 38 C.F.R. § 3.307 (a)(3) relating to chronic diseases are not for application because the evidence does not establish arthritis manifest within one year of the Veteran's separation from service. The earliest confirmation of arthritis in this case is noted in VA treatment records, which list a diagnosis of osteoarthrosis involving the knee with an onset of 2005 and minor degenerative changes of the lumbar spine in January 2008, more than sixty years after the Veteran's separation from service. If a chronic disease is diagnosed after separation from service, the nexus requirement of a claim for service connection can be proven by evidence of a continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). To the extent that the Veteran is arguing continual symptoms of back and knee pain since service, the Board finds such testimony as to continuity of symptomatology is outweighed by the probative value of the VA medical opinion. The Board finds the VA medical opinion of record to be more probative as to nexus given the examiner's cogent rationale that the in-service training incident described by the Veteran would not result in the type of lumbar spine and bilateral knee disability the Veteran currently has and that the current disabilities are likely to be due to the Veteran's age and post-service employment history, smoking, weight, and gait abnormality associated with his 2001 CVA. Ultimately, the preponderance of evidence is against a finding the Veteran's current low back and bilateral knee disabilities are the result of an in-service injury or disease. The Board finds the May 2016 VA opinion is the most probative evidence with respect to the Veteran's claims. The Veteran's lay assertions regarding pain are insufficient to establish a nexus in this case because his current low back and bilateral knee disabilities require medical expertise to determine etiology. The rationale provided by the May 2016 VA examiner simply outweighs the other evidence of record. Thus, the benefit-of-the-doubt doctrine does not apply, and the Veteran's claim for service connection for a lumbar spine and bilateral knee disability must be denied. See Gilbert v. Derwinski, 1 Vet. App 49 (1990). REMAND The Veteran asserts that his current bilateral hip disability developed while on active duty. During the May 2016 VA examination, the Veteran was diagnosed with bilateral hip osteoarthritis. The examiner described the Veteran as known to have congenital hip problems (slipped portion of hip joints) and that he developed arthritis of the bilateral hips around the age 85 years old. Following review of the Veteran's claims file, interview and examination of the Veteran, the examiner opined that the Veteran's bilateral hip disability was less likely than not incurred in or caused by the claimed in-service injury or event. The examiner stated that the Veteran had a diagnosis of DJD of the bilateral hips in the setting of advanced age. The examiner pointed out that the Veteran was approximately 83 years old at the time of his diagnosis for his hips. His risk factors included age, employment history, smoking, weight, and gait abnormality associated with his 2001 CVA. Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304 (b). "When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service." Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). In this case, the Veteran's service treatment records are unavailable for review because of a fire at the NPRC that is presumed to have destroyed the records. Where an entrance examination is lost or missing, the presumption of soundness attaches. See Doran v. Brown, 6 Vet. App. 283, 286 (1994). As such, the presumption of soundness attaches with regard to whether the Veteran had a congenital disease of the bilateral hips. Thus, the burden is on VA to show by clear and unmistakable evidence that the disability both pre-existed service and was not aggravated during service. Given that the Veteran was presumed sound on entry, a remand is required for a new VA opinion to determine what evidence shows that there was clearly and unmistakably a pre-existing congenital hip condition that existed upon the Veteran's entry into military service. A Veteran's reported history alone cannot serve to establish a particular condition clearly and unmistakably existed prior to military service. Typically, there must be medical evidence that establishes the pre-existence of the disability. Certainly in this case, given that the Veteran has been described as an unreliable historian, the Veteran's own report of a congenital condition of a hip condition would be insufficient to rebut the presumption of soundness in this case. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain any outstanding VA treatment records. 2. Return the file to the VA examiner who provided the May 2016 VA examination for an addendum opinion. If the May 2016 VA examiner is not available, the file should be provided to an appropriate medical professional to render the requested opinion. The examiner must opine as to the following: (A) Is there clear and unmistakable evidence (a very high burden of proof) of a pre-existing congenital hip condition prior to the Veteran's entry into military service? If yes, the examiner must identify the medical records that demonstrate a congenital hip condition existed prior to military service. If the only evidence of a congenital condition is the Veteran's subjective reported history, this does not rise to the level of establishing the congenital condition by clear and unmistakable evidence. If a pre-existing congenital condition is identified by medical evidence, the examiner is asked to determine whether the condition is a congenital disease (capable of improvement and worsening) or congenital defect (a static disability). If the condition is a congenital disease, the examiner must opine as to whether the pre-existing congenital hip disease was aggravated (worsened in severity) during service. If the condition is a congenital defect, the examiner must opine as to whether the congenital disability was subject to superimposed hip disability in service that resulted in additional hip disability. If the examiner establishes that there is NOT clear and unmistakable evidence of a pre-existing congenital hip condition, the examiner must opine as to whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that any current bilateral hip disability had its onset during the Veteran's military service or is etiologically related to service. The Veteran's contentions have been deemed credible and should not be dismissed merely because there are no corroborating service treatment records, particularly as the Veteran's service records are presumed destroyed in the NPRC fire.. 3. Finally, readjudicate the appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. The Veteran 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. HYLAND Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD S. Gordon, Associate Counsel Copy mailed to: Virginia Department of Veterans Services Department of Veterans Affairs