Citation Nr: 20028865 Decision Date: 04/24/20 Archive Date: 04/24/20 DOCKET NO. 18-38 424A DATE: April 24, 2020 ORDER Entitlement to service connection for a right knee disorder is denied. Entitlement to service connection for a left knee disorder is denied. Entitlement to service connection for a right hand disorder is denied. Entitlement to service connection for a left hand disorder is denied. FINDING OF FACT The preponderance of the evidence shows that the Veteran’s right knee disorder, left knee disorder, right hand disorder, and left hand disorder were not present in service or until many years thereafter and they are not related to service or to an incident of service origin. CONCLUSION OF LAW The criteria for entitlement to service connection for right knee, left knee, right hand, and left hand disorders have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from November 1969 to April 1972 which service included service in the Republic of Vietnam from May 1971 to April 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Service Connection Claims The Veteran contends that his bilateral knee and bilateral hand disorders are related to his service to include the stress he placed on his joints jumping out of helicopters while in the Army, Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including arthritis, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this regard, in order to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Initially, the Board notes that the post-service record shows the Veteran being diagnosed with arthritis of the right knee, left knee, right hand, and left hand. See, e.g., VA x-rays dated in December 2015 and May 2018. The Board also finds that the Veteran is competent to report on the events he experienced while on active duty including jumping out of helicopters and manifestations of his disabilities such as right knee, left knee, right hand, and left hand pain and stiffness. See Davidson, supra. However, while the Veteran DD 214 and service personnel records show he served in the Republic of Vietnam as well ss lists his occupational specialty as telegraph switch board operator; tellingly nothing in these records show that the Veteran’s duties as a telegraph switch board operator included a lot of jumping out of helicopters. Moreover, the Board notes that the Veteran’s service medical records, including the April 1972 separation examinations, are negative for any right knee, left knee, right hand, and left hand injury, including an injury jumping out of a helicopter as well as negative for complaints, diagnoses, or treatment for right knee, left knee, right hand, and left hand disability. These reports provide highly probative evidence against this claim. In fact, at the April 1972 separation examination the Veteran did not report a history of for right knee, left knee, right hand, and left hand problems and on examination it was opined that his upper and lower extremities were normal. This medical opinion is not contradicted by any other medical evidence of record. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Accordingly, the Board finds that the Veteran did not have a right knee, left knee, right hand, and left hand disorders or an injury that caused the current right knee, left knee, right hand, and left hand disorders while on active duty. See Owens, supra. Therefore, the Board finds that the most probative evidence of record shows that the Veteran did not sustain a disease or injury while on active duty that caused his right knee, left knee, right hand, and left hand disorders. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In this case, the detailed records in service provide particularly negative evidence, overall, against the claims. Additionally, the record does not show that in the first post-service year following service the Veteran was diagnosed with arthritis in the right knee, left knee, right hand, and/or left hand. Therefore, the Board finds that the presumptions found at 38 C.F.R. §§ 3.307, 3.309 do not apply to the current appeal. 38 U.S.C. § 1101, 1112, 1113. Similarly, the Board finds that the record does not show that the Veteran had a continued problem with right knee, left knee, right hand, and left hand disorders in and since service. In fact, as noted above, the service treatment records including the April 1972 separation examination, is negative for an injury, history, complaints, diagnoses, or treatment for a right knee, left knee, right hand, and left hand injury and/or disorders; providing highly probative evidence against the claims. Likewise, and more important than the above, the post-service record is negative for a diagnosis of right knee, left knee, right hand, and left hand disorders until, at the earliest, 2014; over four decades after the Veteran’s 1972 separation from service. See, e.g., VA treatment records dated in September 2014, December 2015, and May 2018. At this point, the service medical records and the post-service medical evidence provides evidence against the claims. Therefore, the Board finds that the most probative evidence of record shows that the Veteran did not have a continued problem with right knee, left knee, right hand, and left hand disorders in and since service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(b). Lastly, the record does not show that the Veteran’s current right knee, left knee, right hand, and left hand disorders are due to his military service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(d); also see Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein); also see Owens, supra. In this regard, in February 2015 Dr. Paul J. Yocom indicated that the Veteran injured his right knee, left knee, right hand, and left hand jumping out of helicopters. However, as noted above, the Veteran’s service personnel records are negative for any evidence that his occupational specialty as a telegraph switch board operator involved jumping out of helicopters and service treatment records are negative for an injury that was due to jumping out of a helicopter. Therefore, because Dr. Yocom’s opinion was based on an inaccurate factual premise (i.e., the Veteran injuring himself on active duty jumping out of a helicopter), the Board affords the opinion no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative); Owens, supra. Similarly, the Board notes that in August 2018 Seema Frosh, M.D., opined that the Veteran’s bilateral hand and bilateral knee arthritis is more likely than not related to his service. However, Dr. Frosh did not provide a rationale for her conclusions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Miller v. West, 11 Vet. App. 345, 348 (1998) (medical opinions must be supported by clinical findings in the record; bare conclusions, even those made by medical professionals, which are not accompanied by a factual predicate in the record, are not probative medical opinions). Therefore, the Board finds that this opinion is afforded no probative weight. See Owens, supra. In this regard, the Board finds that the criteria to provide the claimant with a VA examination to obtain an etiology opinion as to this question has not been met because the record does not show complaints, diagnoses, or treatment for the claimed disorders while in service or until over four decades after service. See Paralyzed Veterans of America, et. al., v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003) (holding that the criteria for obtaining an etiology opinion have not been met when the evidence of record does not establish that the veteran suffered an event, injury, or disease in service because no reasonable possibility exists that providing a medical examination or obtaining a medical opinion would substantiate the claim); Duenas v. Principi, 18 Vet. App. 512, 519 (2004) (VA is not obligated to provide an examination for a medical nexus opinion where, as here, the supporting evidence of record consists only of a lay statement). Simply stated, the record does not indicate a connection with service and, in fact, provides highly probative evidence against the claims. It is important for the Veteran to understand that there is significant evidence against the claims that there is connection between this disorders and service. Furthermore, the Board finds that the Veteran is not competent to provide the missing nexus opinions because he does not have the required medical expertise to provide answers to these complex medical questions (i.e., whether his current right knee, left knee, right hand, and left hand disorders are due to his military service). See Davidson, supra. Therefore, the Board finds that the claims of service connection right knee, left knee, right hand, and left hand disorders are denied. 38 U.S.C. § 1110 38 C.F.R. §§ 3.303, 3.307, 3.309. In reaching the above conclusions, the Board has also considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claims, the Board finds that this doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56. NEIL T. WERNER Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. N. Wilson, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.