Citation Nr: A21019083 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 190110-2759 DATE: November 30, 2021 ORDER Service connection for a right knee disability is denied. Service connection for a left knee disability is denied. Service connection for a right leg disability, including a muscle strain, is denied. Service connection for a left leg disability, including a muscle strain, is denied. REMANDED Service connection for a right hip disability is remanded. Service connection for a left hip disability is remanded. FINDINGS OF FACT 1. The Veteran's bilateral knee disability is not attributable to service and arthritis of the knees was not manifest within one year of separation from service. 2. The Veteran's bilateral leg disability is not attributable to service and arthritis of the legs was not manifest within one year of separation from service. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral knee disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for a bilateral leg disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1968 to March 1971 in the United States Army. The Veteran also had a subsequent period of service from May 1972 to February 1974 for which he received an other than honorable discharge. In a June 2018 determination, the VA Regional Office found that this period of the Veteran's military service was not honorable for VA purposes under the provisions of 38 C.F.R. § 3.12(d)(1). That section provides that the acceptance of an undesirable discharge to escape trial by general court-martial is considered to have been issued under dishonorable conditions. 38 C.F.R. § 3.12(d)(1). A discharge or release from service under one of the conditions specified in 38 C.F.R. § 3.12 is a bar to the payment of benefits unless it is found that the person was insane at the time of committing the offense, which has not occurred here. 38 C.F.R. § 3.12(b). The matter of the character of discharge for this period of service is not in question or in appellate status. As such, benefits may not be paid based on the period of military service from May 1972 to February 1974. In July 2018, the VA Regional Office issued a rating decision denying the above claims under the Legacy Appeals System. The Veteran filed a timely Notice of Disagreement in response to that rating decision. Thereafter, in September 2018, the Veteran opted into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a Rapid Appeals Modernization Program (RAMP) election form and selecting the Higher Level Review lane. In December 2018, the VA Regional Office issued a RAMP Higher Level Review rating decision. In response, in January 2019, the Veteran submitted a RAMP Selection Form (the form accepted by the Board as a Notice of Disagreement prior to AMA implementation on February 19, 2019). On his RAMP Selection Form, the Veteran elected the Hearing Docket. In June 2021, the Veteran testified before the undersigned during a virtual hearing. A transcript of the hearing is included in the electronic claims file. Given the Veteran's selection of appellate review, the Board may only consider the evidence of record at the time of the September 2018 RAMP opt-in, as well as any evidence submitted by the Veteran or his representative at the June 2021 hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). Service Connection VA provides compensation for disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a "service connection." 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to show a service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Additionally, for certain chronic diseases, including 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. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). For those listed chronic diseases, 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). 1. Service connection for a right knee disability is denied. The Veteran has current right knee ankylosis status-post knee fracture and tibia/fibula fracture, documented on VA examination in December 2017. At the June 2021 hearing, the Veteran testified that he injured his knees while performing multiple parachute jumps throughout military service from 1968 to 1971. He testified that on average, he performed two parachute jumps per month throughout service. On one particular occasion in June 1970, he performed a jump in 25 mile per hour wind, and struck a tank during his descent. The Veteran's service separation document, his DD Form 214, documents his receipt of the Parachute Badge. A review of the service treatment records reveals no abnormalities of the right knee on his January 1968 entrance examination. In August 1969, the Veteran reported having right knee pain after running, and a prior jump injury from March 1968 was noted. Later, in June 1970, he sought treatment for a bilateral leg/knee injury sustained during a jump. He was diagnosed with a contusion of the right leg, bilateral knee pain, and a bilateral muscular strain of the legs. In August 1970, he reported right leg pain; no assessment was made. On his February 1971 Report of Medical History, the Veteran reported having a history of a trick or locked knee, and the examining physician noted a prior right knee injury from a parachute jump, which was "ok now." On his accompanying Report of Medical Examination at separation from service, no abnormalities of the knees were found. In 1977, following military service, the Veteran was walking to the beach in Myrtle Beach, South Carolina, when he was struck by a car. The driver fled the scene. The Veteran woke up in the hospital, and had sustained an open comminuted fracture of the right tibia and fibula and a fractured right patella. He also sustained a right hip fracture and a depressed left frontal skull fracture. He underwent several surgeries, including to his right leg, to treat his injuries. On the matter of the etiology of the right knee disability, the record contains the opinion of a December 2017 VA examiner. The examiner reviewed the claims file and examined the Veteran. He noted that the Veteran served in the 82nd Airborne Division and participated in multiple parachute jumps during military service. He noted the incident in 1970 in which he jumped in 25 mile per hour winds, and was slung hard into a tank. The examiner also noted the post-service motor vehicle accident and reconstruction of the right knee. The examiner concluded that it is less likely than not that the current right knee disability was incurred in or caused by military service. The examiner noted that the Veteran's in-service knee injuries were acute only, and the record did not indicate a chronicity of care. Rather, the examiner determined that the current right knee symptomatology was related to the injuries sustained during the 1977 post-service motor vehicle accident. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence is against the claim. The probative evidence does not show that the Veteran's right knee disability is related to active military service, or that a chronic disability was incurred in service. As explained by the December 2017 VA examiner, and as indicated by the examining physician on the February 1971 separation examination, the in-service injuries documented in 1968 and 1970 were acute and transitory. No abnormalities of the right knee were found on clinical examination at separation from service. A pertinent disability was not found within one year of separation from service, nor is there x-ray evidence of arthritis of the right knee from this time; rather, the evidence reflects that the current disability was not shown until years after service discharge. The fact that the Veteran sought treatment for other conditions after service, but not a right knee disability, weighs against the credibility of any assertion that the current disability persisted since discharge. See AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). Following records documenting the 1977 motor vehicle accident, the claims file contains treatment records dating back to 1995 documenting a variety of complaints, without mention of a right knee disability in the earliest records. Because he described other complaints of musculoskeletal pain and provided overall assessments of his health and functioning to his general practitioners, without mention of this condition, it is reasonable to conclude that none was present. Id.; see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The medical opinion evidence is also persuasive. The VA examiner addressed the contentions of direct service connection, but opined that the current right knee disability is not related to military service. Another etiology for the current symptomatology was identified, namely, the post-service motor vehicle accident. The examiner based his conclusions on an examination of the claims file, including the post-service treatment records and diagnostic reports. He reviewed and accepted the reported history and symptoms in rendering the opinions, and provided a rationale for the conclusions reached. The only evidence to the contrary of the VA examiner's opinion is the lay evidence. The Veteran, however, does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of such a medically complex disability as right knee ankylosis status-post knee fracture and tibia/fibula fracture. See, e.g., Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). In reaching this decision the Board considered the doctrine of reasonable doubt, however, the doctrine is not for application. 2. Service connection for a left knee disability is denied. 3. Service connection for a right leg disability, including a muscle strain, is denied. 4. Service connection for a left leg disability, including a muscle strain, is denied. The Veteran has arthralgia of the left knee, documented in a May 2009 VA treatment record. Additionally, given his reports of bilateral leg pain with functional impairment, the Board finds the presence of a current bilateral leg disability. See Wait v. Wilkie, 33 Vet. App. 8 (2020); Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that that pain alone, when causing functional impairment, may constitute a "disability" for VA compensation purposes, even if the pain is not accompanied by a medical diagnosis.) The Veteran's contentions of the in-service incurrence of a left knee injury and bilateral leg injury as due to multiple parachute jumps, and the pertinent service treatment records, are summarized above. As described, while the Veteran sustained injuries in 1968 and 1970, no abnormalities of the left knee or bilateral legs were found by the examining physician on his service separation examination in February 1971. The Board infers from this that the 1968 and 1970 injuries were acute and transitory. A review of the post-service medical records does not reveal a pertinent disability, or any documentation of arthritis of the left knee or legs, within one year of his March 1971 discharge. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence is against the claims. The probative evidence does not show that the current disabilities are related to active military service, or that a chronic disability was incurred in service. The service treatment records are silent for pertinent documentation, other than the acute and transitory episodes discussed above, and no abnormalities were found on service separation. The evidence reflects that the current disabilities were not shown until years after service discharge. The fact that the Veteran sought treatment for other conditions after service, but not a left knee or bilateral leg disability, weighs against the credibility of any assertion that the current disabilities persisted since discharge. See AZ, 731 F.3d at 1303. Following records documenting the 1977 motor vehicle accident, the claims file contains treatment records dating back to 1995 documenting a variety of complaints, without mention of a left knee or bilateral leg disability in the earliest records. Because he described other complaints of musculoskeletal pain and provided overall assessments of his health and functioning to his general practitioners, without mention of this condition, it is reasonable to conclude that none was present. Id.; see also Maxson, 230 F.3d at 1333. A VA medical opinion has not been obtained addressing the etiology of these disabilities. VA must provide a medical examination and 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 another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). The Board finds that there is no indication, other than the Veteran's report, of any association between his current left knee or bilateral leg disabilities and service. He does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of such complex disabilities, particularly in light of the intervening 1977 post-service motor vehicle accident in which he sustained serious injuries. Kahana, 24 Vet. App. at 437. His statements alone are thus insufficient to warrant a medical examination as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. See, e.g., Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Consequently, VA is under no duty to obtain a medical opinion. In reaching these decisions the Board considered the doctrine of reasonable doubt, however, the doctrine is not for application. REASONS FOR REMAND 1. Service connection for a right hip disability is remanded. 2. Service connection for a left hip disability is remanded. The claims for service connection for a bilateral hip disability must be remanded to correct a pre-decisional duty to assist error. The Veteran has current osteoarthritis of the left hip and a right hip strain, documented on VA examination in July 2018. He reports that he injured his hips while performing multiple parachute jumps throughout military service from 1968 to 1971. His service separation document (DD Form 214) documents his receipt of the Parachute Badge. Service treatment records show that in August 1969, the Veteran reported having right knee pain after running, and a prior jump injury from March 1968 was noted. Later, in June 1970, he sought treatment for a bilateral leg/knee injury sustained during a jump. He was diagnosed with a contusion of the right leg, bilateral knee pain, and a bilateral muscular strain of the legs. He was also diagnosed with a hip strain. In August 1970, he reported right leg pain; no assessment was made. On VA examination in July 2018, the examiner opined that the bilateral hip disabilities are less likely than not related to service. While in rendering his opinion, the examiner noted that the service treatment records did not document a chronic hip condition and that the separation examination was normal, it does not appear that he considered the pertinent injuries documented in the service treatment records or the Veteran's parachuting activities as he made no note of them anywhere within the report. Indeed, in completing a section of the report entitled, "Section II - Medical History," no mention was made of the multiple parachute jumps or either the 1968 or 1970 injuries. Instead, the examiner summarized the 1977 post-service motor vehicle accident and rendered a negative nexus opinion based on the Veteran's report that his hips were injured in that accident. He did not clearly explain why the current disabilities are unrelated to the parachute jumps and associated in-service injuries. As such, a further opinion must be obtained. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); see also Dalton v. Nicholson, 21 Vet. App. 23 (2007). The matters are REMANDED for the following action: Afford the Veteran a VA examination to obtain evidence addressing the likely etiology of his bilateral hip disability. A rationale must be provided for all conclusions reached. Opine on whether it is at least as likely as not that the current bilateral hip disability began during active service or is related to an in-service injury, event, or disease, to include the Veteran's multiple parachute jumps performed therein and the associated injuries documented in the service treatment records. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. In rendering the above opinion, please consider the following: DD Form 214 documenting the Veteran's receipt of the Parachute Badge during service from February 1968 to March 1971 August 1969 service treatment record documenting right knee pain and noting a prior jump injury from March 1968 June 1970 service treatment record documenting treatment for a bilateral leg/knee injury sustained during a jump. The Veteran was diagnosed with a contusion of the right leg, bilateral knee pain, and a bilateral muscular strain of the legs. He was also diagnosed with a hip strain. August 1970 service treatment record documenting complaints of right leg pain Post-service 1977 motor vehicle accident in which the Veteran was struck by a car as a pedestrian and suffered multiple injuries M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, 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.