Citation Nr: 1807973 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 10-41 245 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an increased rating in excess of 10 percent for left knee injury with medial collateral ligament strain ("left knee disability"). 2. Entitlement to service connection for left thigh degenerative joint disease ("left thigh condition"). 3. Entitlement to service connection for left shoulder injury ("left shoulder condition"). 4. Entitlement to service connection for right elbow injury ("right elbow condition"). 5. Entitlement to service connection for low back injury ("low back condition"). 6. Entitlement to service connection for neck injury ("neck condition"). 7. Entitlement to service connection for sternum injury ("sternum condition"). 8. Entitlement to service connection for coccyx condition. 9. Entitlement to service connection for right arm injury ("right arm condition"). 10. Entitlement to service connection for left hip pain ("left hip condition"). 11. Entitlement to service connection for pelvis joint pain ("pelvis condition"). REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Talamantes, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1969 to February 1978. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran testified before the undersigned Veterans Law Judge in an October 2017 travel board hearing. A transcript of the hearing has been associated with the file. The issue of left knee disability is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. The Veteran does not have a current diagnosis of a left thigh condition, and any radicular symptoms in the left hip and groin are not shown to have had its onset in service, within one year of separation from service, or are otherwise related to his service. 2. The Veteran does not have a current diagnosis of a left shoulder condition and any weakness in the rotator cuff is not shown to have had its onset in service, within one year of separation from service, or is otherwise related to his service. 3. The Veteran does not have a current diagnosis of a right elbow condition, and any mild point tenderness over the tip of the olecranon process is not shown to have had its onset in service, within one year of separation from service, or is otherwise related to his service. 4. The Veteran's current degenerative disc disease (low back condition) is not shown to have had its onset in service, within one year of separation from service, or is otherwise related to his service. 5. The Veteran's current degenerative changes in the cervical spine with narrowing of C5/6 disc space to include minimal anterior spurring at C5 only (neck condition) is not shown to have had its onset in service, within one year of separation from service, or is otherwise related to his service. 6. The Veteran does not have a current diagnosis of a sternum condition. 7. The Veteran does not have a current diagnosis of a coccyx condition. 8. The Veteran does not have a current diagnosis of a right arm condition. 9. The Veteran does not have a current diagnosis of a left hip condition. 10. The Veteran does not have a current diagnosis of a pelvis condition. CONCLUSIONS OF LAW 1. The criteria for service connection for left thigh condition have not been met. 38 U.S.C. §§ 1101, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.103, 3.303, 3.304 (2017). 2. The criteria for service connection for left shoulder condition have not been met. 38 U.S.C. §§ 1101, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.103, 3.303, 3.304 (2017). 3. The criteria for service connection for right elbow condition have not been met. 38 U.S.C. §§ 1101, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.103, 3.303, 3.304 (2017). 4. The criteria for service connection for low back condition have not been met. 38 U.S.C. §§ 1101, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.103, 3.303, 3.304 (2017). 5. The criteria for service connection for neck condition have not been met. 38 U.S.C. §§ 1101, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.103, 3.303, 3.304 (2017). 6. The criteria for service connection for sternum condition have not been met. 38 U.S.C. §§ 1101, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.103, 3.303, 3.304 (2017). 7. The criteria for service connection for coccyx condition have not been met. 38 U.S.C. §§ 1101, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.103, 3.303, 3.304 (2017). 8. The criteria for service connection for right arm condition have not been met. 38 U.S.C. §§ 1101, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.103, 3.303, 3.304 (2017). 9. The criteria for service connection for left hip condition have not been met. 38 U.S.C. §§ 1101, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.103, 3.303, 3.304 (2017). 10. The criteria for service connection for pelvis condition have not been met. 38 U.S.C. §§ 1101, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.103, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veteran has not raised any 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 a duty to assist argument). Legal Criteria Service connection may be established for a disability due to a disease or injury that was incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, in order to prevail on the issue of service connection, the evidence must show: (1) the existence of a current disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Depending on the evidence and the contentions of record in a particular case, lay evidence can be competent and sufficient to establish a diagnosis and medical etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In deciding a claim for service connection on the merits, the Board must assess the credibility and weight of all evidence, including the Veteran's statements and the medical evidence to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. See Owens v. Brown, 7 Vet. App. 429 (1995) (it is the Board's fundamental responsibility to evaluate the probative value of all medical and lay evidence); see also Evans v. West, 12 Vet. App. 22, 30 (1998) (providing that it is the responsibility of the Board to weigh the evidence and determine where to give credit and where to withhold the same). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. See Cartwright v. Derwinski, 2 Vet. App. 24, 26 (1991); Hatlestad v. Derwinski, 1 Vet. App. 164, 169-70 (1991); Gilbert v. Derwinski, 1 Vet. App. 49, 59 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b). Factual Background and Analysis The Veteran testified that while in service he was involved in an accident where he had to eject himself from a plane. He stated that as a result he sustained numerous injuries. A local newspaper dated March 1971 details the accident. The news article states the Veteran parachuted from an A4 Douglas Skyhawk jet, and landed near a wooded area. According to the article, the Veteran was treated at a Coast Guard air station where he suffered a sprained ankle, but was otherwise in good condition. His DD 214 indicates his military occupational specialty as Fighter Pilot. His service treatment record dated March 1971 indicates he experienced an accident where he bailed out at 18,000 feet, landed through the trees feet first. The pain noted subsequent to this accident was pain in the sternum, right elbow, and left knee. The December 1977 separation examination does not note any injuries, illnesses, or residuals from the 1971 accident. During the October 2017 hearing, the VLJ stated that the Veteran's testimony with respect to describing the in-service accident was credible. Given that and the evidence of record, the Board finds that the Veteran was in an accident in service. The questions before the Board is whether the Veteran has current diagnoses and whether there is a connection between his in-service accident and those diagnoses. The Board has reviewed the evidence in the file, including the VA and private treatment records and though it indicates complaints of pain related to his claimed conditions, for the majority of the issues on appeal, there appears to be no current diagnoses. For those conditions where a diagnosis is stated, there appears to be no causal link between those diagnoses and service. The Veteran submitted a letter from his private doctor. The private examiner opined that the Veteran's ailments are more likely than not related to injuries he sustained in the March 1971 aircraft accident. This letter has a list of dates to indicate the one visit the examiner states the Veteran was seen for all of the issues on appeal, except the claimed left shoulder and sternum conditions. See April 2008 letter labeled as Medical Treatment Record- Non Government Facility. This letter does not provide any detail or provide any rationale. This opinion is in adequate and little to no probative value will be placed on it. The Veteran was afforded a VA examination in September 2008 in relation to his claimed left thigh condition, left shoulder condition, right elbow condition, low back condition, and neck condition. The VA examination and VA medical records will be discussed below as it relates to the specific issues on appeal. The Board finds these VA examinations and medical opinions to be the most probative of the existence of any current disabilities and their etiology. Therefore, the Board finds that service connection for these claims is not warranted. Left Thigh Condition Upon the September 2008 VA examination, radicular symptoms into the left hip and groin were found and the examiner noted that it was most likely associated with his low back condition. The examiner opined that it is less likely as not that this is any kind of a residual or sequelae from ejection from the aircraft in 1974. The rationale provided was that the x-ray findings and physical examination were consistent with the Veteran's age, and not consistent with any acute injury that happened in the past. The examiner noted that the service treatment records indicate that he was treated for multiple bruises and contusions but, that no fractures or dislocations were sustained. The examiner concluded that most of the Veteran's symptoms from the accident in service had resolved. The examiner further noted the Veteran was on active duty for another four years after the injury and was a commercial airline pilot for the past 30 years. Here, there are symptoms noted, but no diagnosis. In addition, the examiner states that these symptoms are not consistent with any acute injury, but consistent with the Veteran's age. The Veteran was 62 years of age at the time of this examination. Lastly, this examiner noted that the Veteran continued to serve on active duty and continued as a pilot even after service. This examination is highly probative. There is not a current diagnosis of a left thigh condition. There is no record of evidence apart from the letter from the Veteran's private doctor to indicate any complaints of or treatment for a left thigh condition. In addition, as the VA examination is highly probative, the Board finds that any radicular symptoms found during the September 2008 VA examination are not related to the Veteran's service. Left Shoulder Condition A September 2008 VA medical record from a radiologist, dated one day prior to the VA examination, indicates that on examination, the bones were intact and well-aligned, with no fracture, subluxation, dislocation, or radiographic abnormality. Upon the September 2008 VA examination, his bones were intact and well-aligned, with no fracture, subluxation, dislocation, or radiographic abnormality. The examiner found weakness in the rotator cuff consistent with the Veteran's age. The examiner opined that it is less likely than not that any injury the Veteran sustained from being ejected from the aircraft had any residuals in relation to his left shoulder. VA medical treatment records dated between July 2010 and September 2014 indicate complaints of left shoulder pain. These records illustrate the Veteran underwent physical therapy for his shoulder and was advised that if he so wanted to undergo surgery that he should do it sooner, rather than later. A July 2010 medical record noted intermittent significant twinge pain in "GHJ/RTC." A January 2011 medical record noted that both shoulders have been less symptomatic lately and the diagnosis of the shoulders was "FU PRN." At most, it appears that the Veteran was diagnosed with pain in the glenohumeral ligament and that an examiner wanted to follow up regarding polyradiculoneuropathy. See Stedman's Medical Abbreviations, Acronyms & Symbols Fifth Edition. There are symptoms noted, but no diagnosis. In addition, the September 2008 VA examiner stated that these symptoms are consistent with the Veteran's age. The examiner opined that any injury the Veteran may have experienced from the aircraft accident has not left any residuals in his left shoulder. This examination is highly probative. There is not a current diagnosis of a left shoulder condition. In addition, as the VA examination is highly probative, the Board finds that any weakness in the rotator cuff found during the September 2008 VA examination or any pain noted is not related to the Veteran's service. Right Elbow Condition A March 1971 service treatment record notes pain in the sternum. As stated above the Board concedes that the Veteran was in an accident in-service. Upon the September 2008 VA examination, his bones were intact and well-aligned, with no fracture, subluxation, dislocation, or radiographic abnormality. The examiner found mild, point tenderness over the tip of the olecranon process. The examiner opined that it is less likely than not that there are any residuals from his ejection from aircraft while on active duty. A September 2014 VA medical record notes a complaint of elbow pain. Here, there are symptoms noted, but no diagnosis. In addition, the September 2008 VA examiner stated that the noted symptom is consistent with the Veteran's age. The examiner opined that it is not likely that the Veteran suffers from any residuals from the ejection from the aircraft. This examination is highly probative. There is not a current diagnosis of a right elbow condition. In addition, as the VA examination is highly probative, the Board finds that any mild, point tenderness over the tip of the olecranon process found during the September 2008 VA examination or any pain noted is not related to the Veteran's service. Low Back Condition Upon the September 2008 VA examination, his disc spaces and vertebral heights were well-maintained, with no spondylosis or spondylolisthesis. The examiner noted that spot view of the coccyx and sacrum showed no evidence of fracture, dislocation, or deformities. The examiner found very minimum degenerative disc disease consistent with the Veteran's age. The examiner concluded there was no evidence of residuals of a significant back injury from 1974. The examiner noted that it had been 34 years since the original injury and that the Veteran was on active duty for an additional four years after the injury with no complaints related to his back after the initial treatment. A May 2011 VA medical record illustrates that the Veteran presented without an appointment, complaining of back spasms off and on for several months. A July 2014 VA mental health record notes a complaint of back pain. Here, there is a diagnosis of minimal degenerative disc disease noted. The September 2008 VA examiner found this to be consistent with the Veteran's age and concluded that there was no evidence of residuals of a significant back injury from 1974. This examination is highly probative. There are some records to indicate complaints of back pain. However, the records do not indicate a continuity of treatment from service to present. There are only three medical records of evidence to show treatment of back pain, and one of those records is the letter from the Veteran's private examiner. As stated above the Board does not find the letter to hold any probative value and even if the Board gave deference to it, the examiner only notes one time where the Veteran was treated for his low back and that was outside of the appeal period. Given the aforementioned and the highly probative VA examination, the Board finds that the minimal degenerative disc disease found during the September 2008 VA examination or any pain noted is not related to the Veteran's service. Neck Condition An August 1970 service treatment record noted that the Veteran suffered a cervical spasm as a result of pulling out of a dive. This event occurred in-service and the Board has already noted that the Veteran was in an in-service accident in March 1971. The Board notes that there are private medical records outside of the appeal period that indicate degenerative spine changes. A September 2008 VA medical record from a radiologist, dated one day prior to the VA examination, indicates that on examination, normal alignment of the cervical spine. The vertebrae showed small osteophytes formation, with no evidence of blastic or sclerotic lesion. The radiologist's report showed mild to moderate narrowing of C5/6 disc space. The paraspinal soft tissues were unremarkable. The diagnosis stated was degenerative changes in the cervical spine with narrowing of C5/6 disc space. Upon the September 2008 VA examination, the x-rays showed normal alignment, well maintained disc spaces, with very minimal anterior spurring at C5 only. The examiner concluded that the x-ray findings and physical examination were consistent with the Veteran's age and opined that it is less likely than not that there are any residuals from the airplane crash ejection and parachute fall. A July 2014 VA mental health record notes a complaint of neck pain. Here, the VA radiologist noted a diagnosis for a cervical spine disability. The VA examiner that conducted the September 2008 noted minimal spurring, but no diagnosis. In addition, the examiner concluded that this symptom was consistent with the Veteran's age. The examiner opined that it is not likely that the Veteran suffers from any residuals from the airplane crash, ejection, and parachute fall. This examination is highly probative. There are few records to indicate complaints of neck pain. However, the records do not indicate a continuity of treatment from service to present. There are only two medical records of evidence to show treatment of neck pain, and one of those records is the letter from the Veteran's private examiner. As stated above the Board does not find the letter to hold any probative value and even if the Board gave deference to it, the examiner only notes one time where the Veteran was treated for his neck pain and that was outside of the appeal period. Given the aforementioned, the Board finds that the degenerative changes in the cervical spine with narrowing of C5/6 disc space, any minimal anterior spurring found during the September 2008 VA examination, and any pain noted is not related to the Veteran's service. Sternum Condition A March 1971 service treatment record notes pain in the sternum. As stated above the Board concedes that the Veteran was in an accident in-service. Upon review of the record, there is nothing to indicate a diagnosis of a sternum condition during the appeal period. The Board notes that the introduction of the September 2008 VA examination is written as if an examination would be performed. However, there is no VA examination of record and here an examination is not warranted. The record before the Board does not indicate that the disability had a causal connection to or was associated with his active military service, as there is no record of a current disability. See 38 C.F.R. § 3.159(c)(4); see also Colantonio v. Shinseki, 606 F.3d 1378 (Fed.Cir.2010); Waters v. Shinseki, 601 F.3d 1274 (Fed.Cir.2010); McLendon v. Nicholson, 20 Vet. App. 79 (2006). A threshold requirement for the granting of service connection is evidence of a current disability. In the absence of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). As the Veteran has not been shown to have a sternum condition during the pendency of his claim, service connection for sternum condition is denied. Coccyx Condition The Board notes that there is a private medical record outside of the appeal period that indicates questionable lucency versus non-union of the coccyx. Upon review of the record, there is nothing to indicate a diagnosis for a coccyx condition during the appeal period. During the September 2008 VA examination the examiner noted that an on spot view of the coccyx and sacrum showed there was no evidence of fracture, dislocation or deformities. The April 2008 letter from the Veteran's private doctor is the only record which indicates that this condition exists. This letter was already found to be of low to no probative value. Even if the Board gave it any weight, the letter only indicates one day of treatment and the date falls outside of the appeal period. A threshold requirement for the granting of service connection is evidence of a current disability. In the absence of a current disability, there can be no valid claim. See Brammer and Shedden, supra. As the Veteran has not been shown to have a coccyx condition during the pendency of his claim, service connection for coccyx condition is denied. Right Arm Condition, Left Hip Condition, Pelvis Condition Upon review of the record, there is nothing to indicate a diagnosis for right arm condition, left hip condition, or pelvis joint condition during the appeal period. The Board notes that record indicates complaints of and treatment for right shoulder problems. This is not equivalent to the right arm condition and is not before the Board. The Board also notes that radicular symptoms of the left hip were noted during the September 2008 VA examination of the Veteran's left thigh. These symptoms were discussed above and this alone does not indicate a diagnosis of a left hip condition. The April 2008 letter from the Veteran's private doctor is the only record that indicates that any of these conditions exists. This letter was already found to be of low to no probative value. Even if the Board gave it any weight, the letter only indicates one day of treatment for each claimed condition and all of the dates fall outside of the appeal period. A threshold requirement for the granting of service connection is evidence of a current disability. In the absence of a current disability, there can be no valid claim. See Brammer and Shedden, supra. As the Veteran has not been shown to have right arm condition, left hip condition, or pelvis joint condition during the pendency of his claims, service connection for right arm condition, left hip condition, and pelvis condition are denied. The Veteran has been afforded VA examinations in connection with the majority of his claims. As stated above, the Board finds these examinations to be adequate and of high probative value. The Board notes that the examiner who conducted these examinations also performed the examination of the Veteran's left knee disability and provided the nexus opinion that was used as a basis to grant service connection for his left knee. For those conditions where there was a diagnosis, the examiner opined that there is no connection between these diagnoses and service, and the examiner provided clear, adequate rationale. For those claimed conditions where there was no VA examination, one was not warranted as the threshold requirement of a current disability was not met. In arriving at these conclusions, the Board has carefully considered the lay assertions of the Veteran as well as the legal argument made during the October 2017 hearing. However, the Board finds that the service treatment records, the VA medical treatment records, and the September 2008 VA examinations, all illustrating that no current disability exists or that there is no connection between any diagnosed condition and in-service injury, illness, or event, outweigh the Veteran's contentions that these disabilities should be service connected. As the preponderance of the evidence is against these claims, the benefit-of-the-doubt rule does not apply, and the claims for service connection for left thigh condition, left shoulder condition, right elbow condition, lower back condition, neck condition, sternum condition, coccyx condition, right arm condition, left hip condition, and pelvis condition must be denied. See 38 U.S.C. § 510(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In closing, the Board recognizes the Veteran's active service and is cognizant of the disabilities for which service connection is in effect. The decision contained herein certainly does not preclude the Veteran from reapplying for service connection for right arm condition, left hip condition, pelvis condition, sternum condition, or coccyx condition should he find that these disabilities presents themselves. ORDER Service connection for left thigh condition is denied. Service connection for left shoulder condition is denied. Service connection for right elbow condition is denied. Service connection for low back condition is denied. Service connection for neck condition is denied. Service connection for sternum condition is denied. Service connection for coccyx condition is denied. Service connection for right arm condition is denied. Service connection for left hip condition is denied. Service connection for pelvis condition is denied. REMAND The Board's review of the record reveals that further development is warranted before the left knee disability claim can be decided. The last VA examination to assess the Veteran's left knee disability was in September 2008, with the most recent VA medical treatment record of evidence dated January 2017. During the October 2017 hearing the Veteran testified that his symptoms have worsened since that last VA examination. As such, the evidence indicates that the disability has increased in severity since the last examination and VA is required to afford him a contemporaneous VA examination to assess the current nature, extent, and severity of his anxiety disorder. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the Veteran's claims file any outstanding VA treatment records documenting treatment for a left knee disability. The Veteran should also be afforded the opportunity to identify and/or submit any outstanding private treatment records. 2. The AOJ should schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his left knee disability. The Veteran's electronic claims file should be made available to and reviewed by the examiner. The AOJ should ensure that the examiner provides all information required for rating purposes. The examiner is asked to specifically test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing for this disability AND the opposite, paired joint. See Correia v. McDonald, 28 Vet. App. 158 (2017). If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. In addition, the examiner should provide information concerning the functional impact of the Veteran's service-connected left knee disability-with specific discussion of the functional impact during any flare-ups. All opinions must be accompanied by a clear rationale. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 3. After completion of the above, the AOJ should review the expanded record and determine if the appeal can be granted. If the claim remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case. After an opportunity to respond, the case should be returned to the Board for appellate review. 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. §§ 5109B, 7112 (2012). ______________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs