Citation Nr: 1808999 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 17-06 222 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for a bilateral knee disability. 3. Entitlement to service connection for a right eye disability, to include right eye macular hole. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Journet Shaw, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Navy from January 1980 to April 1980. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions in June 2015 and April 2017 by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. The Veteran testified before a Decision Review Officer at a June 2016 formal hearing. A transcript of this hearing is of record. In August 2017, the Board, in pertinent part, remanded the service connection claims for a back disability and bilateral knee disability for additional development. As the actions specified in the remand have been substantially completed, the matters have been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). In March 2016, the Veteran executed a new power-of- attorney (VA Form 21-22), designating the Disabled American Veterans as his representative. The Board recognizes the change in representation. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issue of entitlement to service connection for a right eye disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The competent and credible evidence does not demonstrate that the Veteran's currently diagnosed degenerative arthritis of the spine, disc degeneration, and intervertebral disc syndrome (IVDS) had their onset during active duty service, manifested within one year of separation, or are otherwise etiologically related to his in-service injury. 2. The competent and credible evidence does not demonstrate that the Veteran's currently diagnosed left knee joint osteoarthritis has its onset during active duty service, manifested within one year of separation, or is otherwise etiologically related to service. 3. The competent and credible evidence does not demonstrate that the Veteran's currently diagnosed bilateral knee patellofemoral pain syndrome had its onset during active duty service or is otherwise etiologically related to service. CONCLUSIONS OF LAW 1. The criteria to establish entitlement to service connection for a back disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). 2. The criteria to establish entitlement to service connection for a bilateral knee disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C. § 7104 (2012); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, it need not discuss each piece of evidence. Id. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. It should not be assumed that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Id. The Board must assess the credibility and weight of all evidence, including 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 claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Equal weight is not accorded to each piece of evidence contained in the record, and every item of evidence does not have the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When all the evidence is assembled, 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 a claim, in which case, the claim is denied. Id. Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2017). In response to the Veteran's statements regarding his post-service treatment, VA requested records from VA facilities at New York Harbor Healthcare System and Newington. Available records were obtained from VA facilities at New York Harbor Healthcare System. In a November 2016 VA memorandum, VA Connecticut Healthcare System responded that a thorough search of their system of records revealed that they had no records from January 1, 1980 to December 31, 2004. An attempt by the Veteran to obtain records from St. Joseph Hospital were unsuccessful, because he learned that the facility no longer existed. See November 2016 statement. Neither the Veteran nor his/her representative have 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). Service Connection The Veteran asserts that his current back disability and bilateral knee disability arose out of the same in-service incident. He explains that he sustained injuries to his back and both knees during basic training, when he fell over a steel garbage can. When he received in-service treatment for his back, the Veteran said that his bilateral knees were not addressed. He said that he has been experiencing pain in his back and both knees since his in-service accident. The Veteran said that after he was discharged, he sought VA treatment beginning in 1980. Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, 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. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (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. That presumption is rebuttable by probative evidence to the contrary. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Continuity of symptomatology may establish service connection if a claimant can demonstrate (1) that a condition was "noted" during service; (2) there is post-service evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Factual Background Service treatment records (STRs) do not document any findings related to any complaints, treatment or diagnosis for any back or knee problems. The Veteran was not given a separation examination upon his discharge. Service records demonstrate that in April 1980, the Veteran was found to have been qualified both physically and mentally upon enlistment, but he had failed to achieve satisfactory progress and performance in training at Recruit Training Command even with special attention. The Naval Aptitude Board determined that the Veteran was unfit for further military service due to his slow learning ability, poor reading ability, possible language barrier, and that further time and effort expended to train the Veteran would be inefficient. The Veteran was not recommended for reenlistment due to burden to command due to substandard performance or inability to adapt to military service. Noting that he had read the report, the Veteran declined to submit a statement in writing in response for the Board's consideration. Following service, the first available documented treatment record for the Veteran's back was in 1994. At a September 1994 private emergency room visit, the Veteran reported that a week ago, he was passenger on a bus when it stopped quickly and he struck his head on a metal pole. Now, he was seeking treatment for a headache and back pain. A December 2002 private emergency room record reflects the first available documented treatment record for the Veteran's bilateral knees. He endorsed having pain in both knees for the past six months. He also reported having had back pain for the past year. In January 2004, the Veteran visited the emergency room complaining of chronic bilateral knee pain and lower back pain. No recent trauma or injury was noted. In a March 2004 VA treatment record, the Veteran complained of having low back pain on and off for the past two weeks. He noted having bilateral knee pain and stiffness for the past couple of years. At a November 2004 VA clinic visit, the Veteran reported having had knee and low back pain for at least five years. Spinal images revealed L5-S1 mild disc protrusion with annular tear, L4-L5 mild diffuse disc bulge with annular tear, and no evidence of spinal canal stenosis. Bilateral knee x-rays were noted to be normal. At a March 2008 VA emergency room visit, the Veteran presented with chronic right knee pain and low back pain. The Veteran explained that three months prior to moving to Bridgeport, Connecticut, he had experienced a right knee fracture and was placed in a wheelchair that he stated caused an increase in his low back pain symptoms. He reported that during boot camp, while serving in the Navy in 1980, he was discharged after experiencing a right knee fracture. An April 2008 VA treatment record reflects that a lumbar spine x-ray revealed mild to moderate degenerative disc disease at L4/L5. At a June 2010 VA clinic visit, the VA treating physician noted that the Veteran has had long standing back pain since the 1980's during boot camp. In July 2010, the Veteran sought VA emergency room treatment for right anterior knee pain. An x-ray revealed minimal degenerative joint disease with no clear evidence of old fracture. The Veteran was diagnosed with right knee patellofemoral syndrome with no evidence of old fractures. Subsequent VA and private treatment records reflect continued visits for chronic low back pain and right knee pain. More recent VA treatment records document that a July 2015 VA x-ray revealed that the Veteran's right knee was unremarkable for his age. At a March 2016 VA clinic visit, the VA treating physician noted that the Veteran had been seen at a private emergency room for left knee pain three days earlier. A left knee x-ray showed that the findings were consistent with osteoarthritis. See March 2016 private emergency room record. In September 2017, the Veteran underwent a VA examination for his back disability. The Veteran described that on the morning of his graduation from boot camp, he slipped and tripped over a garbage can, which resulted in him experiencing low back pain. He did not receive treatment for his back pain until three days after the incident, and he said he was prescribed four weeks of bedrest. He said that he was separated from service and sent home to recover. The Veteran reported his subsequent back symptoms and treatment after service. Following an objective evaluation, including a review of prior diagnostic testing, the VA examiner diagnosed the Veteran with degenerative arthritis of the lumbar spine, disc degeneration and IVDS. The VA examiner opined that the Veteran's current back disability was less likely than not due to or a result of his military service. Noting the Veteran's reported in-service injury and his reported medical separation, the VA examiner found that there was no corresponding available medical evidence in support of the Veteran's claim, and available documentation showed separation was for other administrative purposes. Moreover, the VA examiner concluded that there was no noted injury during service commensurate with the level of disability noted at the present examination. Finally, the VA examiner noted that there was a distinct absence of any imaging studies completed during his period of service or proximate to his separation which would reasonably associate the currently diagnosed back disability to military service. In September 2017, the Veteran underwent a VA examination for his bilateral knee disability. The Veteran stated that his bilateral knee disability arose out of the same in-service incident as his back disability. He reported that he had fallen on his knees multiple times after that incident. He also asserted that he currently had pain and stiffness in both knees and weakness with pain radiating from his back into the right and left knees to below the calf muscles. Following an objective evaluation, including a review of prior diagnostic testing, the VA examiner diagnosed the Veteran with left knee joint osteoarthritis and bilateral knee patellofemoral pain syndrome. The VA examiner opined that the Veteran's bilateral knee disabilities were less likely than not due to or a result of his military service. Noting the Veteran's reported in-service injury, the VA examiner found that there was a lack of corresponding available medical evidence to support the Veteran's claim. Moreover, the VA examiner noted that there was a distinct absence of any imaging studies completed during his period of service or proximate to his separation which would reasonably associate the currently diagnosed bilateral knee disabilities to military service. Analysis - Back Disability Based on a careful review of the subjective and clinical evidence, the Board finds that the preponderance of the evidence weighs against finding service connection for a back disability on a direct or presumptive basis is warranted. As an initial matter, the Board finds that the Veteran's statements regarding his in-service fall over a steel garbage can and subsequent back injury are competent. However, the Veteran's assertions surrounding the circumstances of his separation from service tend to make his statements concerning his subsequent in-service treatment for that back injury less credible. In that regard, the Board notes that while the Veteran contends that he was discharged from service for medical reasons, specifically to recover from his back injury, April 1980 service records show that he was actually discharged, because he was found unfit for further military service due to slow learning ability, poor reading ability, and possible language barrier. There was no mention of any physical impairments to his continuing to serve. Nevertheless, with regard to whether the Veteran sustained a back injury during service, the Board will find his assertion to be credible, as the STRs do not reflect any documented examination upon separation. The Veteran has been currently diagnosed with degenerative arthritis of the lumbar spine, disc degeneration, and IVDS. As arthritis is a chronic disease under 38 C.F.R. § 3.309(a), the Board has considered whether the Veteran was entitled to presumptive service under 38 C.F.R. § 3.307(a)(3). However, the clinical evidence demonstrates that the earliest record documenting a diagnosis for lumbar spine arthritis was in 2008, almost 30 years after his discharge. The Veteran's STRs do not reflect any treatment or diagnosis for any back problems. Indeed, as already discussed above, the Veteran's lay statements attesting to his treatment and subsequent separation due to his back symptoms have been found to be unreliable. Notably, the first available documented treatment for back symptoms was in 1994 following a bus accident. At that time, the Veteran did not indicate that he had been experiencing back symptoms since service. Almost 8 years later, a December 2002 private treatment record reflects that the Veteran reported having low back pain for the past year. Thus, the Board finds that the evidence does not show that the Veteran's current lumbar spine arthritis manifested within one year of discharge; nor does it show that he had continuous symptoms of arthritis following service. Accordingly, service connection on a presumptive basis for the Veteran's lumbar spine arthritis is not warranted. The question remains whether the Veteran's current back disability is etiologically related to his reported in-service injury. The Board finds that the September 2017 VA examiner's opinion is the most probative evidence as to the etiology of the Veteran's current back disability, as it was based on a thorough examination of the Veteran, a review of his medical records, and consideration of his lay assertions, and was supported by a complete rationale. The Board finds that the most persuasive evidence of record shows that the Veteran's diagnosed lumbar spine disability was not etiologically related to any incident during his active duty service. Moreover, the Veteran has not presented any medical evidence to the contrary. Finally, the Board finds that the only evidence supporting the Veteran's contention that his current back disability is related to an incident during active duty service is his own lay assertions. Although lay evidence may be competent to establish medical etiology or nexus, the Veteran has not demonstrated that he has the requisite specialized knowledge or training to relate his current degenerative arthritis of the lumbar spine, disc degeneration, and IVDS to an injury sustained during his active duty service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Therefore, the Board finds that the Veteran's lay assertions are not competent to provide an etiological opinion for his back disability, and thus, offers little probative value. In summary, the preponderance of the evidence weighs against finding in favor of the Veteran's service connection claim for a back disability on a direct or presumptive basis. Therefore, the benefit-of-the-doubt rule does not apply, and the service connection claim must be denied. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis - Bilateral Knee Disability Based on a careful review of the subjective and clinical evidence, the Board finds that the preponderance of the evidence weighs against finding service connection for a bilateral knee disability is warranted on a direct or presumptive basis. As an initial matter, the Board finds the Veteran's statements concerning the circumstances of his in-service bilateral knee injury are both competent and credible, as the injury arose out of the same incident as his reported in-service back injury. Additionally, the Board notes that the Veteran stated that he re-injured his knees multiple after the initial injury when he came falling down. However, in a similar way as with his back disability, the Veteran reported that his separation from service was due to a right knee fracture. See March 2008 VA treatment. As previously discussed above, the Veteran's service records do not support such a contention. Again, however, since there was no separation examination, the Board is inclined to find at least the Veteran's statements credible that he sustained a bilateral knee injury at the same time as his back injury. The Veteran has been diagnosed with left knee joint osteoarthritis and bilateral knee patellofemoral pain syndrome. With regard to the Veteran's diagnosis for left knee joint osteoarthritis, the Board has considered whether he is entitled to presumptive service connection. See 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In this case, the clinical evidence demonstrates that the earliest record supporting a diagnosis for left knee arthritis was in 2016, more than 35 years after his discharge. The Veteran's STRs do not document any treatment or diagnosis for any knee problems. It was more than 20 years after service that the Veteran sought treatment for his left knee pain, and when he did, he reported its onset as six months earlier. See December 2002 private emergency room record. Furthermore, VA and private treatment records show that the Veteran did not report continuous symptoms of left knee pain. Rather, those same records show that for several years when the Veteran specifically sought treatment for his right knee, he made no reference to his left knee. Thus, the Board finds that the evidence does not show that the Veteran's current left knee arthritis manifested within one year of discharge; nor does it show that he had continuous symptoms of arthritis following service. Accordingly, service connection on a presumptive basis for the Veteran's left knee arthritis is not warranted. The question remains whether the Veteran's left knee joint osteoarthritis and bilateral knee patellofemoral pain syndrome are etiologically related to his reported in-service injury. The Board finds that the September 2017 VA examiner's opinion is the most probative evidence as to the etiology of the Veteran's current left knee osteoarthritis and bilateral knee patellofemoral pain syndrome, as it was based on a thorough examination of the Veteran, a review of his medical records, and consideration of his lay assertions, and was supported by a complete rationale. The Board finds that the most persuasive evidence of record shows that the Veteran's diagnosed bilateral knee disability was not etiologically related to any incident during his active duty service. Moreover, the Veteran has not presented any medical evidence to the contrary. Finally, the Board finds that the only evidence supporting the Veteran's contention that his current bilateral knee disability is related to an incident during active duty service is his own lay assertions. Although lay evidence may be competent to establish medical etiology or nexus, the Veteran has not demonstrated that he has the requisite specialized knowledge or training to relate his current left knee osteoarthritis and bilateral knee patellofemoral pain syndrome to an injury sustained during his active duty service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Therefore, the Board finds that the Veteran's lay assertions are not competent to provide an etiological opinion for his bilateral knee disability, and thus, offers little probative value. In summary, the preponderance of the evidence weighs against finding in favor of the Veteran's service connection claim for a bilateral knee disability on a direct or presumptive basis. Therefore, the benefit-of-the-doubt rule does not apply, and the service connection claim must be denied. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a back disability is denied. Entitlement to service connection for a bilateral knee disability is denied. REMAND In a June 2017 VA Form 9, the Veteran requested a Board videoconference hearing for his service connection claim for a right eye disability. Pursuant to 38 C.F.R. § 20.700 (2017), a hearing on appeal will be granted to a Veteran who requests a hearing and is willing to appear in person. See also 38 U.S.C. § 7107 (2012). The record does not reflect that the AOJ has scheduled the Veteran's hearing, nor does it reflect that the Veteran has withdrawn that request. The Board may not proceed with review of this claim on appeal without providing the Veteran an opportunity for the requested hearing. Therefore, a remand is warranted to schedule the hearing and to notify the Veteran of the date, time, and location of the hearing. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) Schedule the Veteran for a videoconference hearing before a Veterans Law Judge at the earliest opportunity, and notify the Veteran of the date, time, and location of this hearing. 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). ______________________________________________ LESLEY A. REIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs