Citation Nr: 21022259 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 17-56 269A DATE: April 15, 2021 ISSUES Entitlement to service connection for bilateral knee disability. Entitlement to service connection for bilateral shin splints. ORDER Entitlement to service connection for bilateral knee disability is denied. Entitlement to service connection for bilateral shin splints is denied. FINDINGS OF FACT 1. A bilateral knee disability was not manifest during active service and is not shown to be causally or etiologically related to an in-service event, injury, or disease. 2. Bilateral shin splints were not manifest during active service and are not shown to be causally or etiologically related to an in-service event, injury, or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral knee disability have not been met. 38 U.S.C. §§ 1110, 5103, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for bilateral shin splints have not been met.  38 U.S.C. §§ 1110, 5103, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1990 to August 1996; he had additional service in the Army National Guard. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded in April 2019 and October 2020 for further development. Upon review of the Veteran’s claim file, the Board finds that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Therefore, the Board will proceed to the merits of the issues on appeal. This matter has been advanced on the docket pursuant to 38 C.F.R. § 20.900. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Board observes that the Veteran has been incarcerated since November 2014 and is not scheduled to be released until January 2027. The Veteran's incarceration does not negate VA's statutory obligation to assist in the development of his claims. 38 U.S.C. § 5103A. To the extent that he remains incarcerated, VA's duty to assist incarcerated Veterans requires tailored assistance to meet the circumstances of confinement. Wood v. Derwinski, 1 Vet. App. 190 (1991); Bolton v. Brown, 8 Vet. App. 185 (1995). Unfortunately, the Veteran's service treatment records are incomplete except for his April 1990 entrance examination. A November 2017 Statement of the Case the RO informed the Veteran that after several unsuccessful attempts it had been determined that a complete set of the Veteran’s service treatment records (STRs) were unavailable. VA's duty to assist under the VCAA includes helping the claimant obtain STRs and other pertinent records, as well as performing an examination or obtaining a medical opinion when one is necessary to make a decision on the claim. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). In cases such as this in which STRs are incomplete or unavailable, the Board's obligation to explain its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule, is heightened. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992) However, 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, to assist the claimant in developing the claim, and to explain its decision when a Veteran's medical records have been destroyed. See Ussery v. Brown, 8 Vet. App. 64 (1995). Similarly, the case law does not lower the legal standard for proving a claim, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant. Russo v. Brown, 9 Vet. App. 46 (1996). Here, the Veteran's STRs are not available because they were lost. Because of missing records, the analysis below has been undertaken with this heightened duty in mind. The Board notes that the Veteran has asserted a duty to assist error by arguing that the June 2020 VA examination in reference to his bilateral knee disability and bilateral shin splints was inadequate. However, for the reasons which will be explained in detail below, the Board finds that the examination was adequate and that there was no error in the duty to assist. Therefore, the Board will proceed to the merits of the claim. Service Connection Generally, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. 1. Entitlement to service connection for bilateral knee disability. 2. Entitlement to service connection for bilateral shin splints. The Veteran contends that he is entitled to service connection for his bilateral knee disability and bilateral shin splints. He claims that these disabilities are a result of injuries he sustained while parachute jumping in active service. Regarding the first element of service connection, which is a current disability, the Board notes that the Veteran received a VA examination in July 2020. At that time the examiner noted a diagnosis of bilateral shin splints (including tibia and/or fibula stress fracture and/or exertional compartment syndrome) and bilateral knee pain. The Board notes that while the Veteran has not had a diagnosis for his bilateral knee pain, a disability may be shown without an underlying diagnosis if there is pain that results in functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). Upon examination the VA examiner noted that the Veteran has painful ambulation and squatting. The examiner also noted that the condition impacts the Veteran’s ability to perform occupational tasks because he must avoid impact related activities. The Board finds this evidence is sufficient to establish a current disability based on pain that results in functional impairment of earning capacity. As such, the Veteran has met the first criteria for entitlement to service connection. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). As to the second element of service connection, which is an in-service event, in-service incurrence or aggravation of a disease or injury, the Board finds the Veteran to be a reliable historian of his experiences in service. See Jandreau, 492 F.3d at 1377. The Veteran asserts that he injured his knees and shins during landings after parachute jumping during service. In his January 2016 Application for Compensation and/or Pension the Veteran reported that during his six years of enlistment in the 82nd Airborne Division at Fort Bragg he completed 67 jumps. The Veteran's DD-214 confirms his military occupational specialty as a Signals Systems Support Specialist and that he was in receipt of the Parachutist Badge. Thus, the Board finds the Veteran’s report of in-service incidents to be credible and thus the Veteran has also met the second criteria for entitlement to service connection. Id. Turning to the final criteria, there must be a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a). First, from the limited service treatment records and personnel records which are available, the Board notes that the Veteran’s April 1990 enlistment examination is silent for any pre-existing knee or shin problems. Private treatment records have been reviewed and do not show a diagnosis or treatment for a bilateral knee disability or shin splints. The Board does note that in the medical history section of the Veteran’s prison records dated December 2014 he complained of swollen or painful joints and broken bones. The Veteran was afforded a VA examination in July 2020. The examiner noted that he reviewed the Veteran’s claims file. At that time the Veteran reported that the date of onset of symptoms was 1993 for both his bilateral knee pain and shin splints. The Veteran reported that he had a bone scan at Fort Bragg and stress fractures were found in both of his legs. At that time the examiner opined that it was less likely than not that the Veteran’s knee and shin disabilities were caused by his military service. In providing a rationale, the examiner noted that there were no military medical records to review but he did review the Veteran’s personnel records, his enlistment physical examination and his prison systems records. The examiner noted that the Veteran complains of pain in his knees, shins and lower back. After reviewing the Veteran’s recent knee x-rays the examiner determined that they were normal, and the radiologist did not diagnose any type of arthritis. The examiner further noted that while the Veteran has claimed that his current condition is due to is parachute jumps in service, he has been out of active service for 24 years and there is no evidence currently available which makes a link. In October 2020 the examiner submitted an addendum medical opinion. The examiner stated that the Veteran’s claim file was again reviewed, and no new evidence was observed which would support the Veteran’s claim or change his previous opinion. The examiner again noted that there was no military medical record of injury or diagnosis in service. Furthermore, the examiner stated that even if a “stress” injury did exist, there was no evidence that it remained as a chronic condition. The Veteran reported that the last time he was seen at a clinic at Fort Bragg for knee/shin complaints was in 1994. The examiner explained that stress fractures heal with rest and if the Veteran stopped parachute jumping in 1994 and stopped P.T. tests, running and marching in 1998 when he left the National Guard then the condition should have resolved. Therefore, the examiner stated that as no chronicity has been proven by the record, his opinion remained unchanged that it was less likely than not that the Veteran’s knee/shin conditions were caused by military service. The Board finds the July 2020 and October 2020 opinions of the VA examiner to be of great probative value. The examiner’s opinions considered the Veteran's specific contentions, the claims file, and clinical medical evidence, before providing a negative opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion). The examiner's negative etiological opinion was supported by a sufficiently clear and well-reasoned rationale and was consistent with the verifiable facts regarding the Veteran's contentions. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005). For example, the examiner explained that the Veteran’s claimed injuries had occurred 24 years prior and there is no evidence in the record which suggests that it remained a chronic condition. The examiner also cited to the Veteran’s normal knee x-rays in support that there was no link between the current disabilities and service. There is no evidence that the VA examiner was not competent or credible, and as the report was based on accurate facts and objective examinations, the Board finds that it is entitled to significant probative weight as to the etiology of the Veteran's knee/shin disabilities. See Nieves-Rodriguez, Id. The Board is in receipt of correspondence from the Veteran which was added to the claims file in February 2021. Within that correspondence the Veteran requested another medical opinion for his claims. The Veteran argued that the examiner did not accurately assess his claims because the examiner did not have his service treatment records. The Veteran also referenced the fact that he was only examined by one examiner for five minutes. As discussed above, the findings of the VA examiner were based upon a review of the claims file and properly considered the Veteran's reported history and all relevant facts. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board does acknowledge the fact that the examiner did cite to the Veteran’s lack of medical records in his opinion, however in the July 2020 opinion the examiner also considered the Veteran’s specific contention that his current complaints are due to his 67 parachute jumps while in-service. With this consideration the examiner determined that if the Veteran’s claimed injuries did occur the conditions should have resolved by the time of the examination. Furthermore, the Board also notes that despite the lack of STRs in the claims file VA has conceded the Veteran’s claimed in-service events of injuries related to his parachute jumping. As such, the Board finds that the VA examinations of record are adequate for adjudication purposes. The Board acknowledges that the Veteran is competent to provide statements as to his belief that knee and shin disabilities are related to service, including his contention that his conditions have continued since service. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). However, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical opinion regarding the etiology of such conditions of any kind. See 38 C.F.R. § 3.159 (a)(1) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the Veteran is competent to report what he has experienced, he is not competent to ascertain the etiology of his knee and shin disabilities, as the causative factors for such are not readily subject to lay observation. See Layno v. Brown, 6 Vet. App. 465 (1994); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, his assertions to that effect are of no probative value. In addition, the Board finds that the gap in time between the Veteran's last date of active service in August 1996, and diagnosis of bilateral knee pain and shin splints in July 2020 to be probative of a lack of nexus between the diagnosed current disability and active service. A negative inference may be drawn from the absence of complaints or treatment for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). There are no competent medical opinions of probative value in favor of a positive nexus between the Veteran’s knee/shin disabilities and active service from any VA examiner or medical treatment provider from any source. Upon review of the record, the Board concludes that entitlement to service connection for bilateral knee pain and shin splints is not warranted. The Board notes a current diagnosis of bilateral knee pain and shin splints, and thus the requirement for a current disability is shown. The Board acknowledges the Veteran's contentions, and the Veteran's lay statements are noted. However, the service and private medical records do not establish a diagnosis of the claimed disabilities, and there is no competent evidence to tie the current assertion to any in-service disease or injury. The Board thus finds the Veteran fails the third prong of the test for entitlement to service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. (Continued on next page.) In summary, the medical evidence in this case outweighs the Veteran's assertions that his current bilateral knee disability and shin splints are related to his active service. For these reasons, the preponderance of the evidence is against the claim and service connection for a bilateral knee disability and shin splints is not warranted. As the preponderance of the evidence weighs against the claim, the benefit of the doubt rule is not for application. 38 U.S.C. § 5107(b), 38 C.F.R. § 4.3; see Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Nettey, 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.