Citation Nr: 18141291 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 15-07 252 DATE: October 10, 2018 ORDER Entitlement to service connection of a lumbar spine (low back) disability is denied. Entitlement to service connection of a cervical spine (neck) disability is denied. Entitlement to service connection of a left knee disability is denied. Entitlement to service connection for a right knee disability is denied. Entitlement to service connection of a left ankle disability is denied. Entitlement to service connection of a right ankle disability is denied. entitlement to service connection of a left leg disability manifested by neurological symptoms is denied. Entitlement to a right leg disability manifested by neurological symptoms is denied. REMANDED Entitlement to nonservice-connected pension benefits is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran sustained an in-service injury to his low back to which his present low back pain may be etiologically linked. 2. The preponderance of the evidence is against finding that the Veteran has, or has had at any time during the appeal, a diagnosis of a cervical spine disability. 3. The preponderance of the evidence is against finding that the Veteran sustained an in-service injury to his knees to which a present left knee disability may be etiologically linked; degenerative joint disease did not manifest within one year of separation from active service. 4. The preponderance of the evidence is against finding that the Veteran sustained an in-service injury to his knees to which a present right knee disability may be etiologically linked; degenerative joint disease did not manifest within one year of separation from active service. 5. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of a left ankle disability. 6. The preponderance of the evidence is against finding that the Veteran sustained an in-service injury to his right ankle to which a present right ankle disability may be etiologically linked. 7. The preponderance of the evidence is against finding that the Veteran sustained an in-service injury to which his reported neurological symptoms of the left leg may be etiologically linked. 8. The preponderance of the evidence is against finding that the Veteran sustained an in-service injury to which his reported neurological symptoms of the right leg may be etiologically linked. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disability are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304. 2. The criteria for service connection for a cervical spine disability are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304 3. The criteria for service connection for a left knee disability are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. 4. The criteria for service connection for a right knee disability are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. 5. The criteria for service connection for a left ankle disability are not met. 38 U.S.C. §§ 1110.1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304. 6. The criteria for service connection for a right knee disability are not met. 38 U.S.C. §§ 1110.1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304. 7. The criteria for service connection for a left leg knee disability are not met. 38 U.S.C. §§ 1110.1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.310. 8. The criteria for service connection for a right leg knee disability are not met. 38 U.S.C. §§ 1110.1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1974 to March 1976. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from a November 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. Per the Veteran’s own request, he was scheduled to appear at a hearing before a Veterans Law Judge on September 10, 2018. The Veteran failed to appear for that hearing and to date has not provided reason for missing his scheduled hearing. Service Connection The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). In addition, certain chronic diseases, including arthritis, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. A disability may also be found service connected on a secondary basis by demonstrating that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310. 1. Entitlement to service connection of a lumbar spine (low back) disability The Veteran seeks service connection for a lumbar spine (low back) disability. The Board finds that the claim should be denied. At the outset, the Board observes that a review of all medical evidence of record, to include extensive VA treatment records and private treatment records, do not provide an actual diagnosis of a low back disability. Rather, the Veteran is only shown to have chronic low back pain. Although pain alone, absent a diagnosed pathology, has generally been excluded from consideration as a disability for VA purposes, a recent development from the Court of Appeals for the Federal Circuit (Federal Court) holds that pain alone may constitute a disability when it results in functional impairment. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018); cf. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). However, even presuming the Veteran’s chronic pain may constitute a disability, the evidence must still support a finding that the Veteran sustained an in-service incident, illness or injury to which his pain may be etiologically linked, or that the pain itself manifested during active service. In this regard, the Board finds that the evidence does not support such a finding. The Veteran’s service treatment records are available for review. Upon enlistment in June 1974 he reported no physical ailments or disabilities. He was administratively separated from service in March 1968 and the corresponding medical examination also lists no known physical ailments. In fact, the Veteran went so far as to deny any and all physical issues upon separation and wrote, in his own handwriting, and signed a statement attesting “I am in good health.” The remaining service treatment records do not document any illnesses or injuries to which a present disability may be linked. The Board does acknowledge the Veteran’s statement in his VA Form 9 in which he attests that he frequently fell during basic training and training with the 82nd Airborne, but did not report any injuries. As noted above, the Veteran’s service treatment records do not support a finding that such injuries occurred. Nonetheless, a lay person is competent to testify as to facts or circumstances of which they have firsthand knowledge. 38 C.F.R. § 3.159(a)(2). Even presuming that the Veteran is competent to report such injuries in service, the Board must still assess the credibility of such evidence. In this regard, the Board finds these reports to be less than credible. In addition to the record having no supporting evidence of such injuries, there is no evidence of continuity of any physical symptoms since separation from service. Further, to the extent that the Veteran has testified that he did not report such injuries due to his desire to serve his country, the Veteran was administratively separated from service with less than two years of active duty due to extended periods of absence without leave (AWOL). Given the lack of any supporting evidence, general vague description of the Veteran’s reported injuries during training, and the length of time between separation and the claim, the Board finds his reports to be less than credible. See Caluza v. Brown, 7 Vet. App. 498 (1995) (giving factors to consider when assessing the credibility of lay evidence to include facial plausibility; internal consistency; consistency with other evidence; self-interest or bias; bad character; malingering; lay stateme3nts made during treatment; erroneous recollection; time of creation of the evidence’ and combat vs. non-combat situation). I light of the above, the Board finds that the record does not support a conclusion that the Veteran sustained any physical injury or illness during active service to which his presently claimed disabilities may be linked. Finally, the Board does acknowledge a private medical opinion dated March 2012 which states that the Veteran has diagnosed low back pain, which precedes his treatment by the physician writing the letter. The doctor states that he has been treated periodically for low back pain and that it is opinion that it is more likely than not the result of military service. The Board finds this opinion unpersuasive. The Court of Appeals for Veterans Claims (Court) has held that for medical evidence or opinions to be given weight, it must be (1) based upon sufficient facts or data; (2) be the product of reliable principles and methods; and (3) be the result of principles and methods reliably applied to the facts. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). In this instance, the doctor providing the opinion did not provide any discussion as to how his opinion was reached. Particularly, there is no diagnosed pathology beyond “pain” and he does not address any specific incident or incurrence in service to which the present pain may be linked. Rather, this is a bald statement without any application of reliable principles or methods to the facts and data. The fact remains that the evidence does not support any injury in service, and therefore an opinion providing such a link is of no value to the Board in assessing this claim. In short, the Board finds that the claim for a low back disability must be denied as the Veteran did not sustain an injury, illness or incident during active service to which his present low back pain may be linked, and his low back pain did not manifest during active service. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet App. 49 (1990); 38 C.F.R. § 3.102. 2. Entitlement to service connection of a cervical spine (neck) disability The Veteran seeks service connection for a cervical spine (neck) disability. The Board finds that the claims should be denied. The Board has carefully reviewed the evidence of record, to include the Veteran’s extensive VA treatment records and private treatment records and finds no evidence of any diagnosed cervical spine disability or symptoms which may be attributed to such a disability. In fact, his available VA treatment records report a generally normal neck. Absent a present disability or symptoms implying a disability may be present, the Board must deny the claim as failing the first criteria of service connection. The Board further notes that for the reasons addressed above, the record does not support a finding that the Veteran ever sustained an injury to his cervical spine during active service, nor is there any evidence if any such pathology in the Veteran’s service treatment records. As such, the claim also fails the second criterion for a grant of service connection. Absent a present disability and an in-service incurrence or injury, the Board must deny the claim of service connection for a cervical spine disability. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet App. 49 (1990); 38 C.F.R. § 3.102. 3. Entitlement to service connection of a left knee disability 4. Entitlement to service connection for a right knee disability The Veteran seeks service connection of a bilateral knee disability. The Board finds that the claim should be denied. At the outset, the Board does observe that the Veteran’s VA treatment records note a history of bilateral knee pain, attributed likely to degenerative joint disease of the knees. However, as addressed above, the Board finds that the Veteran did not sustain an in-service injury or incurrence of a bilateral knee disability to which his degenerative joint disease may be etiologically linked. The Veteran’s entrance examination does not list any type of bilateral knee difficulty. Likewise, his administrative separation examination also denies any knee issues. In fact, in that examination report, the Veteran personally attested to a lack of any physical ailments. The remainder of his service treatment records are also void of any mention of a knee disability or associated symptomatology. Therefore, to the extent that the Veteran’s record does not support an in-service incident, illness or injury to which his present knee disabilities may be linked, those claims must be denied as failing the second criteria of service connection. Finally, to the extent that degenerative joint disease may constitute arthritis for purposes of presumptive service connection, the Board finds that that claim must also be denied. The earliest mention of degenerative joint disease in the record occurred in January 2011, many years after separation from service. therefore, to the extent that the evidence does not support a finding that his knee disability manifested to a compensable degree within one year of separation, that claim for bilateral knee degenerative joint disease must also be denied on a presumptive basis. In sum, the Veteran did not sustain a bilateral knee disability during active service, and his degenerative joint disease of the bilateral knees did not manifest until many years after separation. As such, the claims must be denied on both a direct and presumptive basis. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet App. 49 (1990); 38 C.F.R. § 3.102. 5. Entitlement to service connection of a left ankle disability 6. Entitlement to service connection of a right ankle disability The Veteran seeks service connection of a bilateral ankle disability. The Board finds that the claim should be denied. At the outset, the Board has carefully reviewed the record and found no evidence of any left ankle disability or symptomatology. Absent any present pathology of the left ankle, that claim fails the primary criterion of service connection, namely, a present disability. The record does reflect that the Veteran’s right ankle is status-post fracture with surgical repair, with no other diagnosed disability. However, as addressed above, the Board has found the evidence insufficient to support a finding that the Veteran sustained an in-service injury, illness or incident involving the right ankle. There is absolutely no evidence of a fracture requiring surgical intervention, and the Veteran himself has not alleged that such a fracture occurred during active service. In light of the above, the Board concludes that the claim should be denied as the left ankle claim fails the first criteria of service connection, and the right ankle fails the second. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet App. 49 (1990); 38 C.F.R. § 3.102. 7. Entitlement to service connection of a left leg disability 8. Entitlement to a service connection of a right leg disability The Veteran seeks service connection for a bilateral leg disability. The Board finds that the claims should be denied. At the outset, the Board finds that the Veteran does not have a presently diagnosed disability in either leg. October 2013 VA treatment records indicate limited mobility of the spine due to discomfort, but no neurological symptoms. In October 2014, he was noted to have stiffness in both calves, potentially associated with chronic low back pain, but no other neurological or physical symptoms in the bilateral legs. To date, no actual diagnosis has been given. Further, as noted above, the Board has concluded that the Veteran did not sustain an in-service incident, illness or injury, to which a presently diagnosed bilateral leg disability may be etiologically linked. Absent such a finding, the claim also fails the second criteria of service connection, and the claim must be denied. Finally, to the extent that the Veteran’s reported stiffness of the calves may constitute a neurological disability secondary to his low back pain, the Board has determined above that service connection is not warranted for low back pain. Therefore, service connection of a bilateral neurological condition of the legs cannot be granted on a secondary basis, as there is no service-connected primary disability. In sum, the Veteran does not have a diagnosed disability of the legs, nor did he sustain any in-service injury or incident to which any reported symptoms may be etiologically linked. Therefore, service connection is denied on a direct basis. Service connection is also denied on a secondary basis as the Veteran’s low back pain also has been denied service connection. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet App. 49 (1990); 38 C.F.R. § 3.102. With regard to all of the issues addressed above, the Board has considered the Veteran’s statements regarding his history of symptoms. In this regard, while the Veteran is not competent diagnose disorders such as the ones on appeal. Nevertheless, he is competent to testify about the presence of observable symptomatology, which may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, the Board determines that service connection may not be granted based on the Veteran’s statements alone. As an initial matter, the in addition to the considerable length in time between his release from active duty and his claim, the Board also notes that he was in constant contact with the VA for education benefits from 1977 to 1986, but never filed a claim for the disorders discussed above. The fact that the Veteran was aware of the VA benefits system, sought out a claim for compensation related to other disorders, but made no reference to the other scars he claims now weighs heavily against his credibility. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011)(Lance, J., concurring) (discussing the distinction between cases in which there is a complete absence of any evidence to corroborate or contradict the testimony, and cases in which there is evidence that is relevant either because it speaks directly to the issue or allows the Board as factfinder to draw a reasonable inference). REASONS FOR REMAND 1. Entitlement to nonservice-connected pension benefits is remanded. Basic entitlement to an improved monthly pension exists if a veteran (1) served in the active military, naval or air service for 90 days or more during a period of war (38 U.S.C. 1521(j)); (2) meets the net worth requirements under 38 C.F.R. §3.274; (3) does not have an annual income in excess of the applicable maximum annual pension rate (MAPR); (4) and is age 65 or older or is permanently and totally disabled from nonservice-connected disability not due to the veteran’s own willful misconduct. 38 C.F.R. § 3.3(a)(3). For purposes of determining eligibility to VA pension benefits, a person shall be considered to be permanently and totally disabled if they are any of the following: (1) a patient in a nursing home for long-term case because of a disability; (2) disabled, as determined by the Commissioner of Social Security for purposes of any benefits administered by the Commissioner; (3) unemployable as a result of a disability reasonably certain to continue throughout the life of the person; or (4) suffering from (a) any disability which is sufficient to render it impossible for the average person to follow a substantially gainful occupation, but only if it is reasonable certain that such disability will continue throughout the life of the person, or (b) any disease or disorder determined by VA to be of such a nature or extent as to justify a determination that persons suffering therefrom are permanently and totally disabled. 38 U.S.C. § 1502(a). In this case, the Veteran is less than 65 years old. To date, the Veteran has not been afforded a VA examination which assesses the severity of his various nonservice-connected disabilities, to include chronic low back pain, degenerative joint disease of the bilateral knees, a right ankle status-post surgical repair, and stiffness of the calves. Although these disabilities cannot be service connected for the reasons discussed above, absent such an examination and formal determination of permanent and total disability status, the Board cannot definitively address the severity of his nonservice-connected disabilities and determine whether he has been rendered totally disabled. See M21-1, Part V.i.2.2.a (October 2, 2018). The Board further finds the record to be incomplete with regard to the Veteran’s income and net worth. Although his initial application lists monthly income in excess of the MAPR, the Veteran did not provide any offsetting income information, such as medical expenses which would lower his monthly income. It does not appear from the record that such information was ever requested. Presuming the Veteran is found to be disabled, the Board would then be required to assess his assess his income and net worth. VA procedure dictates that income and net worth evidence should be developed at the same time as any other evidence needed to determine pension entitlement. See M21-1, Part V.i.2.3.a (October 2, 2018). As such, the Veteran should be requested to provide such information for purposes of adjudicating his nonservice-connected pension benefits claim. The matter is REMANDED for the following action: 1. Invite the Veteran to submit any additional evidence in support of his claim. Particularly, the Veteran should be requested to provide statements of household income and net worth for himself and any dependents. 2. Schedule the Veteran for a general medical examination regarding the current severity of his various nonservice-connected disabilities, to include low back pain, degenerative joint disease of the knees, a right ankle disability and any neurological complications associated with his low back pain, as well as any other nonservice-connected disability identified. The examiner should elicit from the Veteran his complete educational, vocational, and employment history and should note his complaints regarding the impact of his reported disabilities and symptoms on employment.   The examiner should identify all limitations or functional impairment caused solely by his nonservice-connected disabilities. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Pryce, Associate Counsel