Citation Nr: 21001509 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 19-30 079 DATE: January 8, 2021 ORDER 1. Entitlement to service connection for a left ankle disability is denied. 2. Entitlement to service connection for a right ankle disability is denied. 3. Entitlement to service connection for a left knee disability is denied. 4. Entitlement to service connection for a low back disability is denied. FINDING OF FACT The Veteran’s left and right ankle disabilities, left knee disability, and low back disability did not initially manifest during his service or to a compensable degree within a year after his separation from service; also, continuity of symptomatology is not established for any of these claimed disabilities, and they are not otherwise shown to be etiologically related to an in-service injury, event, or disease.   CONCLUSION OF LAW The criteria are not met to establish entitlement to service connection for a left ankle disability, right ankle disability, left knee disability, or low back disability. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1954 to December 1957. In December 2019, the Board remanded these claims back to the local regional office (RO), i.e., agency of original jurisdiction (AOJ) – partly to try and obtain additional information regarding the Veteran’s service in Japan, including concerning any injuries he may have sustained while there, and any medical treatment records arising out of that. The Veteran responded with a new report of treatment at Mount Sinai Hospital after service. The AOJ requested a medical release to allow VA to obtain these confidential records, assuming they still exist, and to this end provided him the necessary form. But he did not respond to that request. As such, the Board finds no further duty to request records relating to his claims. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (holding that VA's duty to assist is not a one-way street; if the Veteran wishes help, he cannot passively wait for it in circumstances where his own actions are essential in obtaining putative evidence). His failure to return the requested information or signed release prevented the AOJ from taking any further action. Under these circumstances, the Board finds there has been the acceptable substantial compliance with the remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only “substantial” rather than strict or exact compliance with the Board's remand directives is required under Stegall v. West, 11 Vet. App. 268 (1998); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999)). This decision thus will be on the evidence of record. Service Connection Principles Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty.  See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). “To establish a right to compensation for a present disability, a Veteran must show: ‘(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’ – the so-called ‘nexus’ requirement.”  See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Arthritis is a chronic disease, per se, according to 38 C.F.R. § 3.309(a), and therefore will be presumed to have been incurred in service if it manifested to a compensable degree (meaning to at least 10-percent disabling) within a year of the Veteran’s separation from service. This presumption is rebuttable by affirmative evidence to the contrary. 38 C.F.R. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Also, for these presumptive diseases identified in § 3.309(a), a Veteran also alternatively may show continuity of symptomatology since service under 38 C.F.R. § 3.303(b) to establish the required correlation (“nexus”) between the disability being claimed and his service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For a showing of a chronic disease in service, or within a presumptive period, there must be symptoms sufficient to identify the disease, and enough observation to establish chronicity at the time. Continuity of symptomatology after service is required where a condition noted during service is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. Id. Disorders diagnosed after discharge will still be service connected if the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In adjudicating a claim, the competence and credibility of the Veteran must be considered. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). Competent lay evidence is any evidence not requiring that the person giving the evidence have specialized education, training or experience. 38 C.F.R. § 3.159(a)(2). The Board is mindful the Veteran has not been afforded any VA examinations to determine the etiology of his claimed conditions. Further, as conceded in the Board’s December 2019 remand, his service treatment records (STRs) were mostly destroyed in a 1973 fire at the National Personnel Records Center (NPRC), which is a military records repository. As such, VA has a heightened obligation to explain its findings and conclusions and to carefully consider applying the benefit-of-the-doubt rule. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board must also point out, however, that the O'Hare precedent does not raise a presumption that the missing medical records, if available for consideration, necessarily would support the claims. That is to say, missing records concerning the Veteran's claims, including STRs, do not lower the threshold for an allowance of a claim; there is no reverse presumption for granting a claim. The legal standard for proving a claim is not lowered; rather, the Board's obligation to discuss and evaluate evidence is heightened. See Russo v. Brown, 9 Vet. App. 46 (1996). The case law does not establish a heightened "benefit of the doubt," only a heightened duty of the Board to consider the applicability of the benefit-of-the-doubt doctrine, to assist the claimant in developing the claim, and to explain its decision when a claimant's medical records have been lost or destroyed. See Ussery v. Brown, 8 Vet. App. 64 (1995). Thus, missing STRs, alone, while indeed unfortunate, do not obviate the need for the Veteran to still have competent and credible evidence supporting his claims for service connection by suggesting a correlation between his claimed conditions and his military service. See Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare, 1 Vet. App. at 367).   When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Entitlement to Service Connection for Left ankle, Right ankle, Left Knee, and Low Back Disabilities The Veteran contends that his left and right (i.e., bilateral) ankle, left knee, and low back disabilities were caused by or are otherwise related to his service. The Veteran was diagnosed with osteoarthritis of both ankles in May 2008, with a left knee disability in January 2009, and with a lower spine (low back) disability in October 2003. A disability is accordingly established for each identified joint. In other words, there is no disputing he has these claimed disabilities. However, there still must be attribution of these disabilities to his military service to, in turn, establish his entitlement to service connection for them. See Watson v. Brown, 4 Vet. App. 309, 314(1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). To try and establish the second and third elements for service connection – namely, relevant disease or injury in service and this required correlation (“nexus”) with his current disabilities – the Veteran and the AOJ have taken steps to obtain as many service-related records as possible. In January 2015, he provided a NA Form 13055 listing his battalion and company information between 1955 and 1956 while stationed at Camp Drake in Osaka, Japan. Notably, this is the same information he later provided on remand in December 2019. In May 2015, the AOJ was notified that his STRs and most of his personnel records were destroyed. In October 2017, the AOJ received further notification that any records request for general hospital treatment would require identifying his company, battery, and battalion. He affirmed that he could not remember any more detailed information. In December 2019, he also stated that he was treated for his injuries at Mount Sinai Hospital after discharge. In August and September 2020, the AOJ requested from him a medical release to obtain Mount Sinai treatment records since they are confidential and require his authorization for VA to get them (even assuming they still exists). Instead, he provided a medical release for his current provider, Dr. Francois, who unfortunately provided treatment notes unrelated to Mount Sinai or service-related injuries. Despite these difficulties, there are enough available records to establish that the Veteran served in the U.S. Army as a light vehicle driver with over two years of active foreign service. He contends that he was thrown from a truck while serving at Camp Drake in Osaka, Japan, and woke up in a hospital. He says that fall resulted in injuries to his ankles and herniated a disc in his lower back. The Veteran is competent to provide reports of factual matters of which he has first-hand knowledge, such as experiencing consequent pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Veteran conversely is not also competent to ascribe any symptoms he may have experienced, both during and his service, to a specific diagnosis or to attribute any current disability to his service – including to those purported injuries in service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377-33 (Fed. Cir. 2007). Moreover, a long lapse of time between his separation from service and the earliest documentation of the now claimed disabilities is a factor for consideration in deciding whether his disabilities date back to his service or are attributable to his service and tends to refute this notion. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Having said that, the Board also recognizes that, in Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006), the Federal Circuit Court recognized lay evidence as potentially competent to support the presence of a claimed disability, even where not corroborated by contemporaneous medical evidence such as actual treatment records. In other words, the mere absence of evidence does not necessarily equate to unfavorable evidence. There are a line of precedent cases supporting this proposition. See, e.g., Horn v. Shinseki, 25 Vet. App. 231, 239 (2012); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). See also Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (cautioning that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence). The Federal Circuit Court also has held however that, while the absence of contemporaneous records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record."). Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of other factors. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991); accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . .") Here, the Veteran’s military service ended in December 1957, and yet the earliest medical record of significance is not until March 1978 (so more than 20 years later and therefore well beyond the one-year presumptive period, post service, allowing for initial manifestation of arthritis) when he requested treatment for upper back pain. And, even then, it was without any precipitating injury – either then currently or at any time prior, so including while he was in the military. After that, the record contains VA treatment notes only from much more recently from October 2003 through October 2020. These records do not reveal any symptoms or impairment being attributed to his service, including arthritis owing to trauma or other injury during his service, so including any mention of his purported fall from a truck in Japan. A December 2003 treatment note for low back pain states that his symptoms began instead after an intervening (so intercurrent) motor vehicle accident in 1988. His left knee and bilateral ankle osteoarthritis notes do not suggest any precipitating injury or etiology for these conditions in relation to his military service. In short, there are no medical opinions tending to support the required attribution of any of his present-day disabilities to his service.   In making these findings, the Board acknowledges the Veteran has not received any VA examinations for his claimed conditions. Generally, VA must provide a medical examination for a medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with a service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006); see also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). Regarding the third factor, the Court has stated that this element establishes a “low” threshold and requires only that the evidence “indicates” that there “may” be a nexus between the current disability or symptoms and the Veteran's service. The types of evidence that “indicate” that a current disability “may be associated” with military service include, but are not limited to, medical evidence suggesting a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon, 20 Vet. App. 79. Here, though, there is neither suggestion. The Federal Circuit Court has addressed the appropriate standard to be applied in determining whether an examination is warranted. The Federal Circuit Court has held that, while there must be “medically competent” evidence of a current disability, “medically competent” evidence is not required to indicate that the current disability may be associated with service. See Waters v. Shinseki, 601 F.3d 1274, 1277 (Fed. Cir. 2010); Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010). On the other hand, however, a mere conclusory, generalized lay statement suggesting a nexus between a current disability and service (or a service-connected disability) would not suffice to meet the standards, as this would, contrary to the intent of Congress, result in medical examinations being “routinely and virtually automatically” provided to all Veterans claiming entitlement to service connection, so merely as a matter of course. Waters, 601 F.3d at 1278-1279. Here, the record contains no medical opinions, medical treatment notes addressing service, or mention of an in-service injury related to these claimed disabilities, medical or otherwise. Instead, there is only the Veteran’s statements. There are no supporting witness statements or testimony to generate reasonable doubt or weigh in his favor to establish equipoise. He has a treatment note that his low back pain began only following a motor vehicle accident some 30 years after conclusion of his service. In sum, the record reflects no evidence tending to indicate any association between his current disabilities and an in-service event – again, outside of his blanket lay assertions that they are related to his service. These statements do not include reports of symptoms, medical treatments, or statements by providers that might otherwise warrant a VA examination for a medical opinion. As the record reflects no evidence supporting a nexus between the claimed conditions and an in-service event, continuity of symptomatology since service, or manifestations of symptoms to a compensable degree within a year of separation from service, and no counter-balancing evidence to support finding equipoise, the Board finds that service connection for the Veteran’s claimed bilateral ankle, left knee, and low back disabilities is not warranted. Moreover, as the   preponderance of the evidence is against these claims, the benefit-of-the-doubt rule is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. Stearns, 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.