Citation Nr: 1804795 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-16 573 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a left knee disability. 3. Entitlement to service connection for shin splints of the right leg. 4. Entitlement to service connection for shin splints of the left leg. 5. Entitlement to service connection for a cervical spine disability. 6. Entitlement to service connection for a thoracolumbar spine disability. 7. Entitlement to service connection for carpal tunnel syndrome and arthritis of the right wrist and hand. 8. Entitlement to service connection for carpal tunnel syndrome and arthritis of the left wrist and hand. 9. Entitlement to service connection for a sinus disability, to include as due to asbestos exposure. 10. Entitlement to service connection for a sexually transmitted disease. 11. Entitlement to service connection for arthritis of multiple joints. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Gallagher, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1975 to May 1978. This appeal is before the Board of Veterans' Appeals (Board) from an April 2012 rating decision of the abovementioned Department of Veterans Affairs (VA) Regional Office (RO). In April 2017, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge via videoconference. A transcript is included in the claims file. FINDINGS OF FACT 1. There was no in-service event, disease, or injury of the right knee. 2. There was no in-service event, disease, or injury of the left knee. 3. There was no in-service event, disease, or injury of the right shin. 4. There was no in-service event, disease, or injury of the left shin. 5. A cervical spine disability is not related to service. 6. A thoracolumbar spine disability is not related to service. 7. There was no in-service event, disease, or injury of the right wrist or hand. 8. There was no in-service event, disease, or injury of the left wrist or hand. 9. A current sinus disability is not related to service. 10. At her August 2017 hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew her appeal of the issue of entitlement to service connection for a sexually transmitted disease. 11. At her August 2017 hearing, prior to the promulgation of a decision in the appeal, the Veteran explained that the issue of entitlement to service connection for arthritis of multiple joints was addressed by the other issues decided herein. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 1101, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for a left knee disability have not been met. 38 U.S.C. §§ 1101, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 3. The criteria for service connection for shin splints of the right leg have not been met. 38 U.S.C. §§ 1101, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 4. The criteria for service connection for shin splints of the left leg have not been met. 38 U.S.C. §§ 1101, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 5. The criteria for service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1101, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 6. The criteria for service connection for a thoracolumbar spine disability have not been met. 38 U.S.C. §§ 1101, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 7. The criteria for service connection for carpal tunnel syndrome and arthritis of the right wrist and hand have not been met. 38 U.S.C. §§ 1101, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 8. The criteria for service connection for carpal tunnel syndrome and arthritis of the left wrist and hand have not been met. 38 U.S.C. §§ 1101, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 9. The criteria for service connection for a sinus disability, to include as due to asbestos exposure, have not been met. 38 U.S.C. §§ 1101, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017); M21-1, IV.ii.2.C. 10. The criteria for withdrawal of the appeal for the issue of entitlement service connection for a sexually transmitted disease have been met. 38 U.S.C. § 7105(d)(5) (2012); 38 C.F.R. § 20.204 (2017). 11. The criteria for dismissal as moot of the appeal for the issue of entitlement service connection for arthritis of multiple joints have been met. 38 U.S.C. § 7105(d)(5) (2012). 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). The Board notes that certain VA treatment records are absent from the Veteran's claims file. Specifically, VA treatment records in her claims file include records from August 2009 to February 2012 and records from October 2017 to December 2017, but no records in the interim. The Board finds that remand for these records is not necessary. The Veteran's claims are herein denied based on a lack of evidence of an in-service event, disease, or injury, or of a relationship between her claimed disabilities and service. At her April 2017 hearing, the Veteran referred to VA treatment for her disabilities, including treatment during the period for which records are absent. There was nothing in her testimony, however, which suggests that records of this treatment might have provided evidence of an in-service event, disease, or injury, or of a relationship between her claimed disabilities and service. The Board thus finds that remand for these records is not necessary, as there is no "specific reason to believe these records may give rise to pertinent information." Raugust v. Shinseki, 23 Vet. App. 475, 478 (2010) (quoting Golz v. Shinseki, 590 F.3d 1317, 1322 (Fed. Cir. 2010)). During the hearing, the Veteran was informed by the undersigned of the reasons why the Veteran's claims had been denied and the type of evidenced needed to substantiate the claims; and the appeal was held open for a period of 60 days to submit such evidence. No such evidence, or information concerning where such evidence might be located, was submitted. Neither the Veteran nor her representative has raised any other 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 duty to assist argument). There is thus no prejudice to the Veteran in deciding this appeal. 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. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Knees and Shin Splints The Veteran claims service connection for disabilities of the bilateral knees as well as bilateral shin splints. Service treatment records do not reflect any symptoms of or treatment for any knee or shin disability. No such abnormality was noted at the Veteran's April 1978 separation examination, and in the accompanying report of medical history she explicitly denied having ever experienced arthritis or a trick or locked knee. VA treatment records reflect that in December 2009 x-rays showed minimal degenerative change affecting the patellofemoral joint spaces of the knees. In April 2010 the Veteran reported pain in her knees only when walking down steps. Her physician noted crepitus. X-rays showed mild spurring of the medial tibial eminences bilaterally and minimal degenerative change affecting the left patellofemoral joint space. In June 2010 she began physical therapy, where she reported that she had fallen on her knees as a child. She was diagnosed with degenerative joint disease of the bilateral knees. In November 2010 she reported that her knee pain prevented her from exercising. At a January 2012 visit to the emergency room she reported inability to bear weight on her right knee with pain that had begun five years prior. In February 2012 x-rays showed early osteoarthritis changes of the bilateral knees involving mainly the patellofemoral compartments, especially on the right. In December 2017 she was treated with injections. At her April 2017 hearing, the Veteran reported that she had shin splints when she was in the military as a trainee. She reported that she put pressure on her knees and shins doing pushups and running in combat boots. She stated that an orthopedist told her that shin splints could cause issues with her kneecaps. The Board finds that the evidence weighs against a finding of an in-service event, disease, or injury of the knees or shins, or that a disability manifested within one year of separation. While the Veteran has stated that she experienced pain in her knees and shins in service, there is no evidence of any treatment for such pain in service or in the decades following separation. Furthermore, the credibility of these statements is undermined by inconsistency, specifically her report to her VA physical therapist in June 2010 that her knee problems were the result of her falling on her knees as a child and her January 2012 report that pain in her right knee had begun five years prior. For these reasons, the Board finds that the evidence weighs against a finding of an in-service event, disease, or injury of the knees or shins, or that a disability manifested within one year of separation. Service connection is therefore denied. Because the evidence does not establish that an event, disease, or injury occurred in service, the duty to assist does not require VA to provide an examination. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). Spine The Veteran claims service connection for disabilities of the thoracolumbar spine and the cervical spine. Service treatment records reflect that in February 1977 the Veteran reported back pain from no known trauma. No such abnormality was noted at her April 1978 separation examination, and in the accompanying report of medical history she explicitly denied having ever experienced recurrent back pain. VA treatment records reflect that in December 2009 the Veteran reported back pain. X-rays showed mild bilateral facet arthrosis at the lumbosacral junction. In June 2010 she reported an acute exacerbation of her low back pain. In November 2011 she reported worsening low back pain for the prior two days. The Veteran underwent a VA examination in December 2011. She reported pain that began 8 years prior. She reported that her pain is due to exercises in basic training, including sit-ups, leg lifts, marching in boots, and running, as well as prolonged standing and sitting due to her in-service work as a cook. X-rays showed degenerative arthritis. She was diagnosed with degenerative arthritis of the thoracolumbar spine and of the cervical spine. The examiner opined that these disabilities were less likely than not related to her service. This opinion was based on the rationale of the long time period between service and the onset of degenerative pain, which the examiner explained was more likely than not related to routine aging. VA treatment records reflect that in January 2012 the Veteran reported low back pain shooting down her buttocks into the back of her leg. In February 2012 x-rays showed mild bilateral facet arthrosis throughout the lower lumbar spine with degenerative changes of the sacroiliac joints. In December 2017 she was treated with injections. At her April 2017 hearing, the Veteran reported that she had bruised her tailbone while doing sit-ups in service, and that her back had given her trouble ever since. The Board finds that the evidence weighs against a finding that a disability of the cervical or thoracolumbar spine is related to service or manifested within one year of separation. The opinion of the December 2011 VA examiner is highly probative and consistent with the evidence of record. While the Veteran did report back pain in service, there is a gap of decades between a single isolated report in-service and the onset of back pain 8 years prior to her VA examination. For these reasons, the Board finds that the evidence weighs against a finding that a disability of the cervical or thoracolumbar spine is related to service or manifested within one year of separation. Service connection is therefore denied. Carpal Tunnel Syndrome The Veteran claims service connection for bilateral carpal tunnel syndrome. Service treatment records do not reflect any symptoms of or treatment for carpal tunnel syndrome. No such abnormality was noted at the Veteran's April 1978 separation examination, and in the accompanying report of medical history she explicitly denied having ever experienced neuritis. VA treatment records reflect that in December 2009 the Veteran reported carpal tunnel syndrome. At her April 2017 hearing, the Veteran reported that she attributed arthritis and carpal tunnel syndrome to doing a lot of heavy lifting, stirring, and cooking in service, which entailed a lot of hand, wrist, and elbow movement. She reported that she had been bothered by it ever since service. VA treatment records reflect that in November 2017 the Veteran was seen for a planned carpal tunnel decompression of the right hand. The Board finds that the evidence weighs against a finding of an in-service event, disease, or injury of the wrists or hands, or that a disability manifested within one year of separation. While the Veteran attributed her current condition to her use of her wrists and hands in service, there is no evidence of any treatment for any symptoms in service or in the decades following separation. There is no indication beyond her baseless supposition that the mere use of her wrists and hands as a cook for less than 3 years in service was in any way related to her current symptoms. For these reasons, the Board finds that the evidence weighs against a finding of an in-service event, disease, or injury of the wrists or hands, or that a disability manifested within one year of separation. Service connection is therefore denied. Because the evidence does not establish that an event, disease, or injury occurred in service, the duty to assist does not require VA to provide an examination. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). Sinuses The Veteran claims service connection for a sinus disability, to include as due to asbestos exposure. There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary promulgated any regulations in regard to such claims. However, VA has issued a circular on asbestos-related diseases. DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular) provides guidelines for considering compensation claims based on exposure to asbestos. The DVB circular was subsumed verbatim as § 7.21 of Adjudication Procedure Manual, M21-1, Part VI. (This has now been reclassified in a revision to the Manual at M21-1, IV.ii.2.C). See also VAOPGCPREC 4-00. The guidelines provide that the latency period for asbestos-related diseases varies from 10-45 years or more between first exposure and development of disease. It is noted that an asbestos-related disease can develop from brief exposure to asbestos or as a bystander. The United States Court of Appeals for Veterans Claims (Court) has held that VA must analyze an appellant's claim to entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols under these guidelines. Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1 MR, Part VI, did not create a presumption of exposure to asbestos. Medical-nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. VA. O.G.C. Prec. Op. No. 04-00. Service treatment records reflect multiple diagnoses of acute respiratory disease over the course of the Veteran's service. In March 1977, she reported sinus problems in a medical history form included in her dental health record. No such abnormality was noted at the Veteran's April 1978 separation examination, and in the accompanying report of medical history she explicitly denied having ever experienced sinusitis. At her April 2017 hearing, the Veteran reported that she had had really bad colds and bronchitis in service and was prescribed antihistamines and decongestive medicine. She reported that she was still using medication for the same problem. The Board finds that the evidence weighs against a finding that a current sinus disability is related to service. As to any relationship with exposure to asbestos, sinusitis or similar disabilities are not among those which VA recognizes as asbestos-related. See M21-1, IV.ii.2.C. In any event, a theory of asbestos-related service connection appears to have been advanced by the Veteran's former representative, but at her April 2017 Board hearing she made no mention of such exposure or such a theory of causation. Rather, she advanced the argument that her current sinusitis was related to her treatment for acute respiratory diseases during service. The evidence does not, however, establish a chronic condition in service or until decades after separation from service. For these reasons, the Board finds that the evidence weighs against a finding that a current sinus disability is related to service, and service connection is therefore denied. Sexually Transmitted Disease The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by a veteran or by his or her authorized representative. Id. At her April 2017 hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew the appeal of the issue of entitlement to service connection for a sexually transmitted disease. As to this issue there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review this issue and it is dismissed. Arthritis The Veteran claimed service connection for arthritis of multiple joints. At her April 2017 hearing, the Veteran explained that this claim encompassed her arthritis in her knees, back, and wrists. As service connection for these symptoms is adequately addressed in the issues decided herein, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review this issue and it is dismissed. 38 U.S.C. § 7105. ORDER Service connection for a right knee disability is denied. Service connection for a left knee disability is denied. Service connection for shin splints of the right leg is denied. Service connection for shin splints of the left leg is denied. Service connection for a cervical spine disability is denied. Service connection for a thoracolumbar spine disability is denied. Service connection for carpal tunnel syndrome and arthritis of the right wrist and hand is denied. Service connection for carpal tunnel syndrome and arthritis of the left wrist and hand is denied. Service connection for a sinus disability, to include as due to asbestos exposure, is denied. The appeal on the issue of entitlement to service connection for a sexually transmitted disease has been withdrawn and is dismissed. [CONTINUED ON NEXT PAGE] The appeal on the issue of entitlement to service connection for arthritis for multiple joints is dismissed. ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs