Citation Nr: 21072974 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 19-06 452 DATE: December 7, 2021 ORDER 1. The application to reopen the claim of entitlement to service connection for eye disability is denied. 2. Entitlement to service connection for a lumbar spine disability (claimed as a back condition), to include degenerative joint disease (DJD) and degenerative disc disease (DDD), is denied. 3. Entitlement to service connection for left elbow disability is denied. 4. Entitlement to service connection for bilateral ankle disability is denied. [The claim of entitlement to recognition of the Veteran's daughter, D.L., as a helpless child on the basis of permanent incapacity for self-support before attaining the age of 18 is addressed in a separate Board decision.] FINDINGS OF FACT 1. Evidence received subsequent to the July 2007 Board decision denying service connection for an eye disability is cumulative, redundant of evidence previously of record, or does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim. 2. The lumbar spine disability, to include degenerative joint disease and degenerative disc disease of the lumbar spine, did not have its onset during active service, degenerative joint disease (arthritis) was not manifested within one year of service discharge, and the lumbar spine disability is not otherwise related to active service. 3. The preponderance of the evidence is against a finding that the Veteran has been diagnosed with a left elbow disability, to include a showing of functional impairment of earning capacity. 4. The preponderance of the evidence is against a finding that the Veteran has been diagnosed with bilateral ankle disability, to include a showing of functional impairment of earning capacity. CONCLUSIONS OF LAW 1. As evidence received since the July 2007 Board decision is not new and material, the criteria for reopening the claim of entitlement to service connection for an eye disability are not met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. The criteria for service connection for a lumbar spine disability, to include DJD and DDD, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection left elbow disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for bilateral ankle disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1975 to October 1979. This appeal comes to the Board of Veterans' Appeals (Board) from a February 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In May 2021, the Board remanded the appeal to obtain outstanding private treatment records. In May 2021, the RO provided the Veteran with a VA Form 21-4142, Authorization and Consent to Release Information to VA, and requested that he complete and submit the form for each identified medical provider, specifically to include Dr. William Dunn; Dr.Martin Pourkesali; Dr. Timothy Root; Dr. Rodger Sayre at Geisinger; private chiropractic care from 2006 to 2007, and all other periods that he received treatment for lumbar spine (back), bilateral ankle, and left elbow disabilities. The RO also informed the Veteran that if he did not respond within 30 days, a decision on his claim would be issued. An August 2021 supplemental statement of the case was issued that also noted the Veteran had been asked to provide new releases for the medical treatment records and a response had not been received. To date, the Veteran has not responded. The "duty to assist is not always a one-way street" and the appellant is obliged to cooperate in the development of the pending claim. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."). Thus, and despite being informed of his duty to provide such, the Veteran did not submit the information requested in the May 2021 letter. Thus, the Board finds that no further action in this regard is required, as the RO substantially complied with the Board remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). New and Material Evidence 1. New and material evidence to reopen the claim of entitlement to service connection for an eye disability Prior unappealed decisions of the Board are final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. The Board does not have jurisdiction to consider a claim that has become final before it determines that new and material evidence has been presented, irrespective of what the regional office may have determined with respect to new and material evidence. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). If, however, new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. Manio v. Derwinski, 1 Vet. App. 145 (1991). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence means existing evidence that, by itself or considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. Id. New and material evidence need not be received as to each previously unproven element of a claim in order to justify reopening thereof; the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 11720 (2010). At the time of the July 2007 Board decision, the evidence consisted of service treatment records (STRs), military personnel records, VA treatment records, histoplasmosis fact book article from Health News Flash website, Macular degeneration frequently asked questions article from the Charles-retina website, and the Veteran's contentions. The Board denied the claim because, while it found that the Veteran had a current eye disability, it found that there was no disease or injury related to the eye in service and no competent evidence of a nexus between the current disability and service. Thus, two of the three elements of service connection were not met. Since the July 2007 Board decision, the Veteran has submitted additional VA treatment records. While some of this evidence is new in that it was not of record at the time of the July 2007 Board decision, it does not establish either an in-service disease or injury involving the eye or a nexus between the current eye disability and service. At the time of the July 2007 Board decision, the Veteran contended that his eye disability was due to his duties as a water purifier and that he was constantly in the water in the states and in Japan rice paddies. During the September 2006 Board hearing, the Veteran stated that his research showed his eye disorder to be indigenous to southeastern regions, such as China or Japan, and caused by bird and bat droppings. His current contention is that he developed an eye disability from contaminated water, specifically bacteria and chemical in the water while at Camp Lejeune in 1978 while in basic training. See October 2016 correspondence. He reported that four, different specialists told him his eye disability is due to his service in Camp Lejeune. The Board finds this theory is new, however, such argument without more is not material. The military personnel records document that he served in Camp Lejeune from February 1967 to April 1967 and in August 1978. Further, despite the Veteran's contention that four specialists have attributed his disability to service, such statements have not been provided to the Board. The Board finds there is no competent evidence to reasonably suggest any association between the Veteran's eye disability and the contaminated water at Camp Lejeune. The Veteran's assertions, without more, do not rise to the level required to reopen the claim, as he is not competent to make such an assertion due to the complexity of linking a disease diagnosed years after service to water consumed during that service. Competent medical evidence may include statements contained in authoritative writings such as medical and scientific articles and research reports and analyses. See 38 C.F.R. § 3.159(a)(1). However, the U.S. Court of Appeals for Veterans Claims has held that medical evidence that is speculative, general or inconclusive in nature cannot support a claim. Here, the Veteran's theory regarding exposure to water contaminants in Camp Lejeune are not the equivalent of a statement from a medical expert who actually reviewed the Veteran's medical history and rendered an opinion based on the specifics of the Veteran's history. Accordingly, this evidence does not relate to an unestablished fact necessary to substantiate the claim. A new theory, without more, does not rise to the level of new and material evidence. VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to" and mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Accordingly, the Board finds that new and material evidence has not been received since the July 2007 Board decision to reopen the claim for service connection for an eye disability. Therefore, the application to reopen the claim is denied. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Service Connection The Veteran believes that lumbar spine, left elbow, and bilateral ankle disabilities had their onset in service. The Veteran filed VA Form 21-0966, Intent to File claims in March 2016, followed by his formal claims for service connection in October 2016. He reported that his disabilities were caused by an accident during service. Specifically, in a separate October 2016 statement, the Veteran wrote that while stationed in Albany, Georgia, he was assigned to a maintenance branch that required him to pick up trash off the back end of a truck. He reported that in October 1977, he was standing on the platform and holding onto the handrails of the back of the truck that was going 40 mph, at which time he lost his grip and fell. He reported that he experienced pain since that accident. In October 2016, the Veteran also filed a statement from a prior fellow service member, JK, in which JK wrote that he recalled that while in Albany, Georgia, in October 1977, he and the Veteran were on routine trash patrol and that the Veteran was holding on the rail as the truck was driving and he fell off or bounced off of the platform on the moving truck. After the accident, he recalled the Veteran reported pain and had a visible limp in his gait and his discomfort was still present in early 1978. 2. Entitlement to service connection for a lumbar spine disability The Board has carefully reviewed the evidence of record and finds the preponderance of the evidence is against the claim for service connection for a lumbar spine disability. The reasons follow. As to evidence of a current disability, an October 2008 VA x-ray showed degenerative joint disease in the lumbar spine and an August 2012 VA treatment record shows an x-ray showed degenerative disc disease throughout the lumbar spine most severe at L3-L4. Therefore, the facts establish that the first element of a service-connection claim is met. As to evidence of an in-service disease or injury, the service treatment records do not show that the Veteran complained of or was treated for a lumbar spine disease or injury during active duty. A November 1975 screening physical examination was normal. A March 1976 service treatment record shows the Veteran was physically fit for transfer. A June 1976 "Mess" physical examination documented that the Veteran was found to be physically fit to undergo military training. Following the alleged October 1977 in-service injury, the Report of Medical History from August 1979 shows that the Veteran specifically denied a history of recurrent back pain, arthritis, and bone, joint or other deformity. He also denied experiencing any illness or injury other than those noted on the report. On the document, he wrote, "I'm in good health[,] no broken bones or anything like that." This document was filled out almost two years after the alleged injury and directly refutes the allegation of an in-service injury and ongoing low back pain. Furthermore, the August 1979 Report of Medical Examination shows that clinical evaluation of the Veteran's spine was normal at service discharge. The Board is aware that the Veteran submitted a July 2016 statement from JK, who served with the Veteran, which statement was submitted in October 2016. Within this statement, JK described an incident in October 1977 where the Veteran, during a trash run, had fallen or bounced off of the platform of a moving truck and that the Veteran had complained of pain and had a visible limp in his gait. JK wrote that his then fiancée could recall noticing the Veteran's limp and asking about the cause of the limp and that the Veteran was still complaining of discomfort when he was transferred to another base in early 1978. The Board finds that the allegation of an injury in October 1977 is not credible. While the Veteran has submitted a "buddy statement," the Board finds that the August 1979 Report of Medical History that the Veteran completed at that time to be more probative than statements made by the Veteran and JK almost 40 years after this incident. The Veteran completed this form contemporaneously with service, which statements tend to be highly reliable. He checked, "Yes" to whether he wore glasses or contact lenses and whether he had vision in both eyes. He checked, "No" to a history of recurrent back pain and other musculoskeletal symptoms. He also specifically denied a history of illness or injury. In other words, he read through the document and checked yes to those symptoms that he experienced and no to those symptoms he had not experienced. These facts documented by the Veteran in August 1979 refute the allegation of an in-service injury to his low back that caused ongoing pain subsequently. To reiterate, he completed this form almost two years after the alleged incident. He also alleges having injured his left elbow and both ankles at the time of this alleged injury. If the Veteran had sustained multiple injuries from this fall and continued to experience symptoms from the October 1977 incident, the Board finds he would have documented such within the Report of Medical History. Instead, he denied all musculoskeletal symptoms, and specifically wrote that he had no broken bones "or anything like that." The Veteran completed this form in close proximity to service discharge and certified the truth of what he documented on that form. This makes the facts he documented at that time reliable and probative, and these facts refute the allegation of multiple in-service injuries in October 1977 that started chronic problems to his lumbar spine, left elbow, and bilateral ankle. For these reasons, the allegation of an in-service disease or injury to the lumbar spine is found not credible. In October 2017, the Veteran submitted a statement from a person who served with the Veteran, whose initials are MS. Within this letter, MS wrote about the duties that the Veteran was assigned while in service. There is no documentation within this letter of a disease or injury to the Veteran's lumbar spine. Thus, this letter does not assist in establishing evidence of a disease or injury in service. Regardless, the Board still finds that the August 1979 Report of Medical History is the most probative evidence as to what happened during service. Thus, for all the reasons laid out above, the Board finds the preponderance of the evidence is against a finding that the Veteran had a disease or injury involving the lumbar spine during the period of active duty, and the facts do not establish that the second element of a service-connection claim is met. In addition, there is no competent evidence that arthritis of the lumbar spine manifested during active service or within one year of the Veteran's service discharge so as to warrant a grant of presumptive service connection for arthritis as a chronic disease. The Board also finds that the preponderance of the evidence is against a nexus between the post service lumbar spine disability and service. As noted above, the Veteran denied a history of recurrent back pain at service discharge in August 1979, and his spine was found to be clinically normal. The VA treatment records show that the Veteran first began seeking treatment there in January 2004. He was seen on multiple occasions from January 2004 to October 2006a period of almost three years. He consistently reported a medical history of hypertension, gastroesophageal reflux disease, vision problems with a blind spot in the right eye secondary to trauma, and erectile dysfunction. During this time, he openly reported medical symptoms he was experiencing, which did not include low back pain. In April 2004, the examiner documented the Veteran had, "No complaints" and then listed multiple medical symptoms to point out that the Veteran did not have such symptoms. The Veteran reported he worked in logging, which "involved hard work." A physical examination was performed at that time, and all clinical findings were documented as normal. The first showing of lumbar spine symptoms was at an October 2006 VA treatment appointment, when the Veteran reported back pain, and did not state that such pain had been longstanding. Thus, to the extent that the Veteran alleges having experienced lumbar spine symptoms continuously since service, the Board finds such allegations are not credible for two reasons. First, the Veteran denied a history of recurrent back pain when discharged from active duty in 1979. Second, when being treated by VA for his lumbar spine disability in January 2016, the Veteran reported lower back pain with onset in 1990. At that time, the Veteran denied low back trauma status post motor vehicle accident in 1985 in which the Veteran was the driver and was not wearing a seat belt. The Veteran reported that his vehicle was hit head-on at a slow speed by another vehicle. He reported no injuries, no hospital stay, and no other treatment after the accident. It was noted he had lower back pain with occasional radiation down the left extremity since 1990 with an unknown cause. In addition, in March 2012, he specifically indicated that his back pain had a duration of two years. This admission from the Veteran is highly reliable, as the Veteran was seeking medical treatment at that time. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). His explicit report of back pain with an onset in 1990 and 2010 is evidence against a finding that he was experiencing ongoing back/lumbar spine symptoms since service. The criteria for entitlement to a VA examination and/or medical opinion have not been met. VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability, an in-service event, injury or disease, evidence that the current disability may be associated with an event, injury, or disease in service, and there is insufficient medical evidence of record to decide the claim. As explained above, the weight of the evidence demonstrates no in-service event, injury, or disease, and the Board finds that the credible evidence does not support that the disability may be associated with an event, injury, or disease in service, which are requirements for entitlement to a VA examination/medical opinion. The Board finds that further development is not necessary, and VA has no duty to assist in providing a VA examination and/or medical opinion. Hence, while the evidence shows that the Veteran has a current diagnosis of a lumbar spine disability, the preponderance of the evidence is against a finding that his current disability has its onset in service or is otherwise related to service. Thus, as the preponderance of the evidence is against the claim, there is no reasonable doubt to be resolved, and the claim for service connection for a lumbar spine disability, to include DJD and DDD, is denied. 38 U.S.C. § 5107(b). 3. Entitlement to service connection for left elbow disability 4. Entitlement to service connection for bilateral ankle disability The Board has carefully reviewed the evidence of record and finds the preponderance of the evidence is against the claims for service connection for bilateral ankle or left elbow disabilities. The reasons follow. The record does not reflect the Veteran to have a diagnosis of an active bilateral ankle or left elbow disability. The treatment records are absent of treatment for a left elbow disability. In an October 2018 VA treatment record, the Veteran reported he was in pain all the time and that his back and ankle are messed up after falling off a vehicle going 45 miles per hour on base while in service. He reported there was no record of it during service because a nurse on base took care of all his wounds. The Veteran also reported ankle pain in an August 2019 treatment record. The preponderance of the evidence is against a finding that the Veteran has current left elbow and bilateral ankle disabilities, to include pain that causes functional impairment of earning capacity to these joints. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Here, there are no complaints of elbow pain and infrequent reports of bilateral ankle pain, therefore, the Board finds the reported pain does not cause functional impairment of earning capacity. Furthermore a 2014 VA treatment record notes physical examination of the extremities showed no cyanosis, clubbing, edema, and muscle strength was 5/5, and 2013 to 2019 VA treatment records show physical examinations revealed no abnormalities, and his extremities were noted as having no pitting edema and musculoskeletal motor strength was 5/5. The Veteran also reported during VA treatment in 2004 to 2005 that he worked in logging involving hard work, in 2013 that he was employed at parks and recreation in St. Johns county, and in 2016 he reported working full time running tractor mowing schools. The VA treatment records reveal a consistent work history up to 2021, and do not show functional impairment of earning capacity due to a left elbow or bilateral ankle pain. The Board concedes that the Veteran has pain in these areas, as he reported experiencing pain. However, the preponderance of the evidence is against there being competent evidence of current disabilities or sufficient pain that causes functional impairment of earning capacity Thus, the preponderance of the evidence is against a finding that the first element of a claim for service connection for these disabilities is met. The Veteran is competent to report on matters he observed or that are within his personal knowledge, including pain. However, the evidence, including the Veteran's statements, do not show that he has been diagnosed with disabilities of the left elbow or bilateral ankle disabilities, or that the Veteran experiences pain that causes functional impairment of any of these joints. See Saunders, 886 F.3d 1356. Additionally, as explained above, the preponderance of the evidence is against in-service diseases or injuries involving the left elbow and bilateral ankle. Within the August 1979 Report of Medical History, the Veteran denied a history of painful or trick shoulder or elbow. The August 1979 Report of Medical Examination shows that clinical evaluations of the upper and lower extremities were normal. The Veteran has alleged sustaining multiple injuries from a fall that occurred in October 1977, and the Board finds as fact that the in-service injuries did not occur, which reasons are laid out in detail above. The criteria for entitlement to a VA examination and/or medical opinion have not been met for the three disabilities. To reiterate, VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability, an in-service event, injury or disease, evidence that the current disability may be associated with an event, injury, or disease in service, and there is insufficient medical evidence of record to decide the claim. As explained above, the weight of the evidence demonstrates no in-service event, injury, or disease; the preponderance of the evidence is against the existence of a current disability or persistent or recurrent symptoms of a disability, and the Board finds that the credible evidence does not support that disabilities may be associated with an event, injury, or disease in service, which are requirements for entitlement to a VA examination/medical opinion. The Board finds that further development is not necessary, and VA has no duty to assist in providing a VA examination and/or medical opinion. For all the reasons laid out above, the Board finds that the preponderance of the evidence is against the Veteran's claims for service connection for left elbow and bilateral ankle disabilities, and there is no reasonable doubt to be resolved. 38 U.S.C. § 5107. Service connection is, therefore, denied. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sarah Campbell, 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.