05-09 164
05-09 164
| Board of Vet. App. | Feb 28, 2017Background
- Veteran served in the U.S. Marine Corps, June 1987–Aug 1996; filed claims for service connection for a chronic left knee disability, chronic left thigh disability, and right-hand (two-finger) fracture residuals, first submitted April 2003.
- Service treatment records largely unavailable despite repeated VA attempts; only entrance examination and personnel records located; RO found records formally unavailable in Feb 2013.
- VA treatment records begin in 2003 documenting left knee degenerative changes, ACL/meniscal tears on imaging, and bilateral knee arthritis; limited objective findings for right-hand digit disability; no medical records showing arthritis or related pathology within one year of separation.
- Veteran provided lay testimony and buddy statements asserting in-service injuries (left knee 1994; left thigh 1996; right-hand fractures 1988) but reported no post-service treatment until 2003; some inconsistencies in history (later statement that left thigh claim was actually right thigh).
- VA medical examiners (2008, 2013, 2015) either: (1) gave a history-based, equivocal opinion linking current problems to in-service events (2008), or (2) declined to provide nexus opinions, stating that doing so would be "mere speculation" given missing service records and lack of contemporaneous evidence (2015).
- Board concluded the evidence preponderates against service connection because linking current disabilities to service requires impermissible speculation; therefore, service connection for left knee, left thigh, and right-hand disabilities denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection — chronic left knee disability | Veteran contends left-knee injury in service (1994) led to current knee arthritis/instability; continuity of symptoms via lay reports and buddy statements | VA argues service treatment records are unavailable, no objective evidence of chronicity within one year post-service, and medical exam cannot link current disability to service without speculation | Denied — preponderance against nexus; medical opinion says causation would be mere speculation |
| Service connection — chronic left thigh disability | Veteran asserts in-service thigh injury (1996 wrestling) caused current thigh/hip symptoms | VA notes inconsistent statements (later claimed right thigh), lack of service or post-service medical evidence, and medical inability to opine on etiology | Denied — evidence insufficient and claimant recanted left-thigh assertion; nexus speculative |
| Service connection — right hand (two-finger fractures residuals) | Veteran reports 1988 right-hand fractures causing current pain and decreased grip; buddy statements corroborate complaints | VA finds no service treatment records confirming fractures, no post-service treatment until 2003, and examiners conclude etiology cannot be determined without speculation | Denied — nexus not established; medical evidence does not support causation |
| VA duty to notify/assist | Veteran implies need for development and hearing(s) | VA documents multiple notices and extensive efforts to obtain records; hearing held in 2006; additional requested RO clarification for some ancillary claims | Held — VA satisfied notice and duty-to-assist; no further development required for these claims |
Key Cases Cited
- Shedden v. Principi, 381 F.3d 1163 (Fed. Cir.) (elements required for service connection)
- Caluza v. Brown, 7 Vet. App. 498 (Vet. App.) (VA must consider competent evidence tying disability to service)
- Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir.) (competency of lay evidence is a factual determination)
- Barr v. Nicholson, 21 Vet. App. 303 (Vet. App.) (continuity of symptomatology framework)
- Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir.) (limits on continuity theory to conditions recognized as chronic)
- Shinseki v. Sanders, 556 U.S. 396 (U.S.) (prejudice requirement in administrative appeals)
- Smith v. Gober, 14 Vet. App. 227 (Vet. App.) (scope of VA's duty to assist satisfied)
- Dela Cruz v. Principi, 15 Vet. App. 143 (Vet. App.) (duty to assist and when further development is unnecessary)
- Reonal v. Brown, 5 Vet. App. 458 (Vet. App.) (limitations on probative value of uncorroborated lay histories)
- Elkins v. Brown, 5 Vet. App. 474 (Vet. App.) (similar limits on lay history probative weight)
- McLendon v. Nicholson, 20 Vet. App. 79 (Vet. App.) (service connection may be awarded for a disorder present during any portion of appeal period)