Citation Nr: 18149584 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 15-00 458A DATE: November 9, 2018 ORDER Entitlement to service connection for a back disability is denied. Entitlement to service connection for a left ankle disability is denied. Entitlement to service connection for a left foot disability is denied. Entitlement to service connection for a left hip disability is denied. Entitlement to service connection for a right hip disability is denied. FINDINGS OF FACT 1. The Veteran’s back condition did not begin during his active service and has not been shown by competent medical evidence, or competent and credible lay evidence, to be related to his active service. 2. The Veteran’s left ankle condition did not begin during his active service and has not been shown by competent medical evidence, or competent and credible lay evidence, to be related to his active service. 3. The Veteran has not had any left foot disability separate from his left ankle disability during the period on appeal. 4. The Veteran has not had any left hip disability during the period on appeal. 5. The Veteran has not had any right hip disability during the period on appeal. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a left ankle disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for a left foot disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for service connection for a left hip disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 5. The criteria for service connection for a right hip disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1959 to December 1960. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). In August 2017, the Veteran appeared and provided testimony at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the record. In October 2017, the Board remanded these matters to the Agency of Original Jurisdiction for additional development of records relating to in-service and post-service treatment the Veteran contends he received for his claimed conditions. The case has since been returned for appellate review. The record shows the RO requested inpatient clinical treatment records from McClellan and Travis Air Force Bases for all of calendar year 1960 and received a negative response for each. The RO also sent the Veteran and his representative a development letter requesting completion and return of VA Forms 21-4142 and 21-4142a (copies of which were enclosed), or, alternatively, that the Veteran provide copies of all private treatment records from UC Davis Medical Center, but the Veteran did not return the form or submit additional records. However, the Board notes the Veteran stated in a May 2012 VA Form 21-4138 that he had obtained and submitted “all” of his private treatment records from UC Davis Medical Center. The Board finds there has been substantial compliance with the remand instruction regarding development of the Veteran’s claimed in-service and post-service treatment records, and the Board may adjudicate the claims on the merits. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance). The Board acknowledges the Veteran’s contention the United States government awarded him 100 percent disability for some number of years until he reached retirement age, indicating he may have received Social Security Disability or Supplemental Security Income from the Social Security Administration (SSA) based on one or more disabilities. See VA Form 21-4138 (received in May 2012); Notice of Disagreement (received in November 2013). Although VA generally has a duty to assist the Veteran in obtaining SSA disability records, the Board finds it would be futile in this case to request the records since they no longer exist per SSA’s records retention policies. See 68 F.R. 71210 (December 22, 2003). Once a person reaches retirement age (which the Veteran did over a decade ago), disability benefits automatically convert to retirement benefits. It is SSA’s policy to then destroy the medical records associated with the disability claim. The Board has thoroughly reviewed all evidence in the claims file. Consistent with the law, the analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim, and the Board’s reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The Veteran must not assume the Board has overlooked evidence not explicitly discussed herein. In addition, pertinent regulations for consideration were provided in the November 2014 statement of the case and September 2018 supplemental statement of the case, and are not repeated here in full. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires competent evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service; and (3) a causal relationship or nexus between the current disability and any injury or disease during service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). The Veteran claims service connection for back, left ankle, left foot, left hip and right hip disabilities, which he contends are the result of being hit by a forklift and pinned against the wall during active service in or around October to December 1960. The record contains no evidence corroborating the occurrence of the alleged in-service forklift incident. However, even assuming, without so finding, the alleged incident occurred, the Board finds the preponderance of the evidence is against finding the Veteran is entitled to service connection for any of his claimed conditions. 1. Back condition The Veteran has several current lower back disabilities, including degenerative disc disease, sciatica, lumbar facet arthropathy, lumbar spinal stenosis, and lumbosacral spondylosis without myelopathy. See April 2017 private treatment record (showing medical history). The issue before the Board is whether his lower back disabilities are etiologically related to the alleged in-service forklift incident. The Veteran contends he has experienced back pain since the alleged in-service forklift incident. See March 2012 VA Form 21-4138; August 2017 hearing transcript. However, the Veteran’s private treatment records show that in February 2011, he reported his back pain started three years prior, and in April 2011 he reported his back pain started four years prior. Those dates are consistent with his medical history, which shows most of his back-related conditions were diagnosed in 2009 and 2010, with the earliest (sciatica) being diagnosed in 2006, and others having no listed date of diagnosis. The Board must determine the probative value of all evidence in the record. In determining the weight to be assigned to evidence, credibility can be affected by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self- interest, malingering, desire for monetary gain, and witness demeanor. See Caluza v. Brown, 7 Vet. App. 498, 511, 512 (1995), aff’d per curiam, 78 F.3d. 604 (Fed. Cir. 1996). Here, the Board finds the Veteran’s 2011 statements regarding the date of onset of his back pain, which were made prior to the 2012 filing of his VA disability claims and in the course of receiving medical treatment, to be more probative than his later statements made for the purpose of supporting his claim for monetary benefits, which the Board finds not credible. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant); Caluza, supra. The Veteran’s 2011 statements are also more consistent with his recorded medical history showing most of his lower back conditions being diagnosed in 2009 and 2010. Had the Veteran in fact been experiencing back symptoms for over 40 years, it is reasonable to expect he would have reported such when seeking treatment for such symptoms. Instead, the fact he reported a more recent onset weighs heavily against the claim he makes now he had continuous symptoms since service. The Board further finds that, to the extent the Veteran’s lower back conditions may be considered arthritis, which is a “chronic disease” for purposes of presumptive service connection under 38 C.F.R. §§ 3.307(a)(3) and 3.309(a), the evidence of record does not indicate manifestations of the disease in service or to a compensable degree within one year following separation from service. 38 U.S.C. §§ 1101(3), 1112; 38 C.F.R. §§ 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As noted above, the Veteran reported to his private physician in February 2011 and April 2011 that his lower back pain did not begin until three or four years prior. For the same reason, the Board further finds that continuity of symptomatology is not established. 38 C.F.R. § 3.303(b). The Board finds the preponderance of the evidence weighs against finding the Veteran’s current lower back disabilities began during active service, or are otherwise related to an in-service injury, event, or disease. Service connection for a back disability is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Left ankle condition The Veteran has been diagnosed with left ankle arthropathy. See April 2017 private treatment record (showing medical history). The issue before the Board is whether this condition is etiologically related to the alleged in-service forklift incident.   The Veteran claims one of the solid rubber tires on the forklift stopped on top of his left foot. See March 2012 VA Form 21-4138. An April 2017 private treatment record shows the Veteran was in a motor vehicle accident in the 1990s and had surgery on his left ankle and left wrist in 1992. A July 2011 VA primary care initial evaluation note shows that the surgery was a left ankle fusion due to a crush injury. The Veteran’s VA and private treatment records do not report any history of complaints of or treatment for any left ankle condition between his 1960 discharge from service and his 1992 surgery. Moreover, his VA and private treatment records make no mention of the alleged in-service forklift incident. Rather, the Veteran consistently dated onset of the left ankle injury to the accident in the 1990s. Finally, the Veteran’s March 2012 lay statement and August 2017 hearing testimony make no mention of any ongoing ankle pain or other symptoms experienced post-service that would potentially indicate a link between his current left ankle condition and the alleged in-service forklift incident. The Board further finds that, to the extent the Veteran’s left ankle condition may be considered arthritis, which is a “chronic disease” for purposes of presumptive service connection under 38 C.F.R. §§ 3.307(a)(3) and 3.309(a), the evidence of record does not indicate manifestations of the disease in service or to a compensable degree within one year following separation from service. 38 U.S.C. §§ 1101(3), 1112; 38 C.F.R. §§ 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As noted above, there is no medical evidence showing any complaints of or treatment for any left ankle condition until 1992, over 30 years after the alleged in-service forklift incident occurred. For the same reason, the Board further finds that continuity of symptomatology is not established. 38 C.F.R. § 3.303(b). The Board finds the preponderance of the evidence weighs against finding the Veteran’s current left ankle disability began during active service, or is otherwise related to an in-service injury, event, or disease. Service connection for a left ankle disability is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. 3. Left foot condition The Veteran claims he has a left foot disability caused by the alleged in-service forklift incident. Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. See 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.310; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (“In the absence of proof of a present disability there can be no valid claim.”). The preponderance of the competent and credible evidence shows the Veteran has not had a left foot disability separate from his left ankle disability during the period on appeal. The Veteran’s private treatment records are silent for any complaints or diagnosis of, or treatment for, any left foot condition separate from his left ankle arthropathy. Moreover, the Veteran’s testimony at the August 2017 hearing was silent as to any details about the claimed left foot disability, to include any allegations of ongoing pain or functional loss of any kind. Service connection for a left foot disability is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. 4. Left and right hip conditions The Veteran has osteoarthritis of both hips. See June 2017 private treatment record. The issue before the Board is whether this condition is etiologically related to the alleged in-service forklift incident. The Veteran testified at the August 2017 hearing that he did not injure his right hip in service, and that his left hip did not start bothering him until a couple of years prior to the hearing. The Board finds there is no causal relationship or nexus between his bilateral hip condition disability and the alleged in-service forklift incident. The Board further finds to the extent the Veteran’s left and/or right hip condition may be considered arthritis, which is a “chronic disease” for purposes of presumptive service connection under 38 C.F.R. §§ 3.307(a)(3) and 3.309(a), the evidence of record does not indicate manifestations of the disease in service or to a compensable degree within one year following separation from service. 38 U.S.C. §§ 1101(3), 1112; 38 C.F.R. §§ 3.307, 3.309(a); Walker, supra. As noted above, he testified in August 2017 that his hip pain did not begin until a couple of years prior to the hearing. For the same reason, the Board further finds continuity of symptomatology is not established. 38 C.F.R. § 3.303(b). Although service connection could be granted for a condition diagnosed after service, there must be competent evidence relating it back to the in-service injury. Here, there is no such evidence. Service connection for a bilateral hip disability is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. In deciding the above claims, the Board acknowledges the November 2014 lay statement provided by someone the Veteran has known for 27 years. The Board finds the statement is not probative of the existence, nature, or etiology of the Veteran’s disabilities because it simply states the Veteran told him about the alleged in-service forklift incident and the injuries the Veteran claims he sustained. It does not provide competent evidence of the existence, nature, or etiology of any of the Veteran’s claimed disabilities. Duty to Assist In its October 2018 brief, the Veteran’s representative asserted the Veteran is entitled to a VA examination pursuant to McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds no examination is warranted. First, an examination is not required unless there is competent evidence of a current disability or persistent or recurrent symptoms of a disability. McLendon, 20 Vet. App. at 81. Here, as the Board has found the Veteran has no left foot disability separate from his left ankle disability, no examination is required regarding his alleged left foot disability. As to his claimed back, left ankle, and bilateral hip disabilities, an examination is not required unless there is also “an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service.” See id. The types of evidence that “indicate” that a current disability “may be associated” with military service include, but are not limited to, “credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation.” Id. at 83 (emphasis added). Here, the Board finds the record contains no credible evidence of continuity of symptomology such as pain or other symptoms capable of lay observation by the Veteran, nor any medical evidence in the record that suggests a nexus between the Veteran’s service and his current disabilities. With respect to the Veteran’s back disability, as set forth previously, the Board finds the Veteran’s March 2012 and August 2017 statements that his back has bothered him since service, made in support of his claim for disability benefits, lack credibility because they are contradicted by his 2011 statements to his physician made contemporaneously for treatment purposes, which are themselves consistent with the Veteran’s records medical history regarding the 2009 and 2010 onset dates of his lower back conditions, as well as the general absence of any history of complaints of or treatment for any back conditions from 1960 until over 40 years later. Furthermore, the Veteran’s medical records contain no mention at all of the alleged in-service forklift incident, either in the summary of his medical history or in connection with any complaints or treatments, much less indicate any of his back disabilities may be related to service. Likewise, with respect to the Veteran’s left ankle and bilateral hip disabilities, the Board finds the evidence does not indicate either of those conditions may be related to his service. The Veteran’s March 2012 VA Form 21-4138 and his August 2017 hearing testimony are both silent as to continuity of symptomology such as pain or other symptoms capable of lay observation by the Veteran, and the record does not contain medical evidence that shows his left ankle or bilateral hip conditions may be related to his service. As previously noted, the Veteran’s medical records contain no mention at all of the alleged in-service forklift incident, either in the summary of his medical history or in connection with any complaints or treatments, much less indicate any of his disabilities may be related to service. The Board thus concludes that a VA examination is neither required nor warranted based on the evidence in the record. VA’s duty to assist has been satisfied. Except as discussed above, neither the Veteran nor his representative raised any other issues with the duty to notify, the duty to assist, or the conduct of his Board hearing as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding “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 a duty to assist or Bryant hearing deficiency argument). Thus, the Board need not discuss any potential issues in this regard.   Finally, neither the Veteran nor his representative raised any other issues not addressed herein, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming Board not required to address issues unless specifically raised by claimant or reasonably raised by evidence of record). MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Leamon, Associate Counsel