Citation Nr: 0810316	
Decision Date: 03/28/08    Archive Date: 04/09/08

DOCKET NO.  05-18 423	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. 
Petersburg, Florida


THE ISSUE

Whether new and material evidence has been received to reopen 
a claim for entitlement to service connection for residuals 
of a right tibia and fibula fracture.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

A. Roth, Associate Counsel


INTRODUCTION

The veteran had active service from March 25, 1975, until 
April 22, 1975.  

This matter comes before the Board of Veterans' Appeals (BVA 
or Board) from the Department of Veterans Affairs (VA), 
Regional Office (RO) in St. Petersburg, Florida.


FINDINGS OF FACT

1.  The veteran did not appeal an July 1975 rating decision 
denying his claim for service connection for residuals of a 
fractures right leg.  After one year, that decision became 
final.

2.  Evidence presented since the July 1975 rating decision, 
when viewed by itself or in the context of the entire record, 
relates to an unestablished fact necessary to substantiate 
the claim for a right leg disorder.

3.  Medical evidence and the veteran's own statements 
indicate that he experienced a right leg fracture prior to 
his entrance into military service.

4.  In-service medical evidence shows a single reported 
incident of right leg pain in the first week of basic 
training.  The veteran was discharged from military service 
after less than one month of active duty due to a 
nonacceptable defect.

5.  The veteran's single in-service episode of a right leg 
disorder is shown to be a temporary flare-up of a pre-
existing disorder.

6.  The weight of the competent evidence indicates that the 
veteran's pre-existing right leg disorder did not undergo a 
permanent increase in severity during his brief stint of 
active duty service.


CONCLUSIONS OF LAW

1.  The July 1975 rating decision that denied the veteran's 
claim to service connection for a right leg disorder is 
final. 38 U.S.C.A. § 7105(c) (West 2002).

2.  Evidence received since the July 1975 rating decision is 
new and material and the veteran's claim is reopened.  38 
U.S.C.A. §§ 5104, 5108, 7105 (West 2002); 38 C.F.R. §§ 
3.104(a), 3.156(a), 20.1103 (2007).

3.  Residuals of a right tibia and fibula fracture clearly 
and unmistakably pre-existed service and were not aggravated 
by military service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 
1137, 5103, 5103A, 5107(a) (West 2002); 38 C.F.R. § 3.303 
(2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

New and Material

Unappealed rating decisions by the RO are final with the 
exception that a claim may be reopened by submission of new 
and material evidence.  38 U.S.C.A. §§ 5108, 7105(c) (West 
2002).  When a veteran seeks to reopen a claim based on new 
evidence, VA must first determine whether the additional 
evidence is "new" and "material."  Smith v. West, 12 Vet. 
App. 312 (1999).

Second, if VA determines that new and material evidence has 
been added to the record, the claim is reopened and VA must 
evaluate the merits of the veteran's claim in light of all 
the evidence, both new and old.  Manio v. Derwinski, 1 Vet. 
App. 140 (1991);  Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. 
Cir. 1996);  Butler v. Brown, 9 Vet. App. 167, 171 (1996).  

When making determinations as to whether new and material 
evidence has been presented, the RO must presume the 
credibility of the evidence.  Justus v. Principi, 3 Vet. App. 
510 (1992).  However, lay assertions of medical causation 
cannot serve as the predicate to reopen a claim under § 5108.  
See Moray v. Brown, 5 Vet. App. 211, 214 (1993).

VA regulations define "new" as not previously submitted and 
"material" as evidence that, by itself or when considered 
with previous evidence of record, relates to an unestablished 
fact necessary to substantiate the claim.  If the evidence is 
new and material, the question is whether the evidence raises 
a reasonable possibility of substantiating 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.  38 C.F.R. § 3.156(a) (2007).

In order for evidence to be sufficient to reopen a previously 
disallowed claim, it must be both new and material.  If the 
evidence is new, but not material, the inquiry ends and the 
claim cannot be reopened.  See Smith, supra.  If it is 
determined that new and material evidence has been submitted, 
the claim must be reopened.  

Historically, the RO denied a claim for residuals of a right 
tibia and fibula fracture in an July 1975 decision due to a 
lack of evidence that the condition was incurred in or 
aggravated by service.  The veteran did not appeal this 
decision and it became final.  See 38 C.F.R. § 7105.  The 
RO's July 1975 decision represents the last final 
disallowance of entitlement to service connection for a right 
leg disorder.  

Based on the procedural history outlined above, the issue for 
consideration is whether new and material evidence has been 
received to reopen the previously denied claim.  The RO 
denied the veteran's claim to reopen his service connection 
claim based on a lack of new and material evidence in an 
October 2004 rating action that is the basis for the present 
appeal.  

However, the Board notes that in the May 2005 statement of 
the case, the RO reopened his claim for service connection, 
but denied the claim because the preponderance of the 
evidence showed pre-existence of a severe injury with no 
aggravation in-service.  

Nevertheless, regardless of the RO's actions, the Board must 
still determine whether new and material evidence has been 
submitted. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 
2001) (reopening after a prior unappealed RO denial); Barnett 
v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (reopening after a 
prior Board denial); Wakeford v. Brown, 8 Vet. App. 237 
(1995) (VA failed to comply with its own regulations by 
ignoring issue of whether any new and material evidence had 
been submitted to reopen the veteran's previously and finally 
denied claims).

The evidence of record at the time of the July 1975 rating 
action denying the veteran's service connection claim for a 
right leg disorder included service medical records and 
statements in support of his claim. Such records reveal that 
the veteran sustained a compound fracture of the tibia and 
fibula in January 1974, prior to his active duty service, and 
that he reported pain in his right leg on one occasion in-
service.  

Evidence submitted since that time includes treatment records 
from Dr. S. dated in August 2004 that indicate that the 
veteran's right leg pain was a result of an in-service injury 
and that the January 1974 fracture was aggravated in boot 
camp.  Significantly, this evidence is new, in that it was 
not previously considered by the RO, and it is material since 
it relates to an unestablished fact necessary to substantiate 
the claim or raise a reasonable possibility of substantiating 
the claim.  Therefore, the veteran's claim for service 
connection for residuals of a right tibia and fibula fracture 
is reopened.  

Service Connection

Having reopened the claim, the Board will now address it on 
the merits.  The veteran is claiming entitlement to service 
connection for residuals of a right tibia and fibula 
fracture.  In his notice of disagreement, the veteran claimed 
that his residuals of a tibia and fibula fracture were 
aggravated while in basic training.    

According to the law and regulations, service connection is 
warranted if it is shown that a veteran has a disability 
resulting from an injury incurred or a disease contracted in 
the line of duty, or for aggravation of a preexisting injury 
or disease in active military service.  38 U.S.C.A. § 1110 
(West 2002); 38 C.F.R. § 3.303 (2007).  Service connection 
may also be granted for any disease diagnosed after discharge 
when all of the evidence establishes that the disease was 
incurred in service.  See 38 C.F.R. § 3.303(d).  

"Generally, to prove service connection, a claimant must 
submit (1) medical evidence of a current disability, (2) 
medical evidence, or in certain circumstances lay testimony, 
of in-service incurrence or aggravation of an injury or 
disease, and (3) medical evidence of a nexus between the 
current disability and the in-service disease or injury."  
Pond v. West, 12 Vet. App. 341, 346 (1999).  

Under § 3.303(b), an alternative method of establishing the 
second and/or third element is through a demonstration of 
continuity of symptomatology.  See Savage v. Gober, 10 Vet. 
App. 488, 495-97; see also Clyburn v. West, 12 Vet. App. 296, 
302 (1999).  

Continuity of symptomatology may be established if a claimant 
can demonstrate (1) that a condition was "noted" during 
service; (2) evidence of post-service continuity of the same 
symptomatology; and (3) medical or, in certain circumstances, 
lay evidence of a nexus between the present disability and 
the post-service symptomatology.  Savage, 10 Vet. App. at 
495-96; see Hickson v. West, 12 Vet. App. 247, 253 (lay 
evidence of in-service incurrence sufficient in some 
circumstances for purposes of establishing service 
connection); 38 C.F.R. § 3.303(b).

Where the determinative issue involves a medical diagnosis, 
competent medical evidence is required.  This burden 
typically cannot be met by lay testimony because lay persons 
are not competent to offer medical opinions.  Espiritu v. 
Derwinski, 2 Vet. App. 492, 494-95 (1992).

In determining entitlement to service connection, a veteran 
is afforded a presumption of sound condition upon entry into 
service, except for any defects noted at the time of 
examination for entry into service.  See 38 U.S.C.A. § 1111.  
However, the presumption of sound condition may be rebutted 
by clear and unmistakable evidence both that the disability 
or injury existed prior to service, and that the disease or 
injury was not aggravated by service.  VAOPGCPREC 3-2003 
(July 16, 2003); see also Cotant v. Principi, 17 Vet. App. 
116, 123-30 (2003) (detailing legislative history relating to 
presumption of soundness and the possibility that the 
omission of the relevant language from 38 C.F.R. § 3.304(b) 
was unintentional and that 38 C.F.R. § 3.304(b) should be 
construed as consistent with the VA's pre-February 1961 
regulations).  

Specifically, VAOPGCPREC 3-2003 held that the claimant is not 
required to show that the disease or injury increased in 
severity during service before VA's duty under the second 
prong of this rebuttal standard attaches.  It was determined 
that the provisions of 38 C.F.R. § 3.304(b) are inconsistent 
with 38 U.S.C.A. § 1111 insofar as § 3.304(b) states that the 
presumption of sound condition may be rebutted solely by 
clear and unmistakable evidence that a disease or injury 
existed prior to service.  It was concluded that 38 C.F.R. § 
3.304(b) was invalid and should not be followed.  

Regarding the provisions of 38 C.F.R. § 3.306(b), providing 
that aggravation may not be conceded unless the pre-existing 
condition increased in severity during service, it was 
determined that this properly implements 38 U.S.C.A. § 1153, 
which provides that a pre-existing injury or disease will be 
presumed to have been aggravated in service in cases where 
there was an increase in disability during service.  

Clear and unmistakable evidence (obvious or manifest) is 
required to rebut the presumption of aggravation where the 
pre-service disability underwent an increase in severity 
during service.  This includes medical facts and principles 
that may be considered to determine whether the increase is 
due to the natural progression of the condition.  Aggravation 
may not be conceded where the disability underwent no 
increase in severity during service on the basis of all the 
evidence of record pertaining to the manifestations of the 
disability prior to, during, and subsequent to service.  See 
38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(b) (2006).  

Moreover, "temporary or intermittent flare-ups of a pre-
existing injury or disease are not sufficient to be 
considered aggravation in service unless the underlying 
condition, as contrasted to symptoms, is worsened."  Crowe 
v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 
1 Vet. App. 292, 297 (1991).  However, the increase need not 
be so severe as to warrant compensation.  Browder v. 
Derwinski, 1 Vet. App. 204, 207 (1991).

Nonetheless, silence of the record on this point may not be 
taken as indication of no aggravation, an opinion must be 
provided.  See Verdon v. Brown, 8 Vet. App. 529 (1996); Wisch 
v. Brown, 8 Vet. App. 139 (1995).  Further, such medical 
questions must be addressed by medical experts.  Espiritu v. 
Derwinski, 2 Vet. App. 492 (1992).  

The Board must determine whether the evidence supports the 
claim or is in relative equipoise, with the veteran 
prevailing in either case, or whether the preponderance of 
the evidence is against the claim, in which case, service 
connection must be denied.  Gilbert v. Derwinski, 1 Vet. App. 
49 (1990).

As an initial matter, the Board finds that no pre-service 
medical records are available.  A review of the claims file 
reveals that the veteran's preinduction examination in 
October 1974 contained a notation of a scar on the right 
lower leg. Additionally, his report of medical history also 
completed in October 1974 indicated that he sustained a 
compound fracture of the tibia and fibula in January 1974 and 
underwent closed reduction and casting at that time.  

Additionally, the veteran's private physician, Dr. W., 
provided a letter stating that the patient was fit for 
military service.  After a physical, he was considered to be 
qualified for service.  For that reason, he is entitled to 
the presumption of soundness.  

Nonetheless, within the first week of recruit training, the 
veteran reported to sick call complaining of pain in his 
right leg.  After review, a Medical Board report was issued 
stating that medical records confirmed that he sustained a 
compound fracture of his right tibia and fibula in January 
1974.  

Upon physical examination, there was a 3-4 inch scar over the 
right proximal anterior tibia.  There was slight edema and 
tenderness to palpation of the area.  X-rays revealed a 
healed fracture of the proximal porions of the right tibia 
and fibula.  As a result, the Medical Board found that he had 
a nonacceptable defect and recommended separation from 
service.  He was discharged with less than one month of 
service.

Even finding that the presumption of soundness attached at 
the time of induction, the medical evidence provide clear and 
unmistakable evidence that he experienced a right leg 
disorder prior to active duty.

The Veterans Claims Court has held that post-service medical 
judgment alone may be used to rebut the presumption of 
soundness as long as the evidence is clear and unmistakable.  
See Jordan v. Principi, 16 Vet. App. 335 (2002), withdrawn, 
2002 WL 31445159 (Vet. App. Nov. 1, 2002); but see Jordan v. 
Principi, 17 Vet. App. 261, 280 (2003) (medical judgment may 
play a conclusive role in making presumption of soundness 
determination).  

In this case, the post-service medical evidence indicates 
that the veteran's right leg disorder existed prior to his 
military service.  For instance, private treatment records 
from Dr. S., confirm that the veteran had a compound fracture 
of the tibia in January 1974 prior to his military service.  
It also indicates that the veteran was taken into service 
with a healed tibia and fibula fracture.  

Upon review of X-rays taken in August 2004, Dr. S. noted that 
the proximal one-third of the tibia and fibula were well 
healed and that the veteran had an open fracture, which 
occurred about one year before he entered into service.  

These private treatment records are consistent with the 
findings of the Medical Board report of April 1975, which 
lead to his separation from service.  As such, after weighing 
the medical evidence, the Board finds that there is clear and 
unmistakable medical evidence that the veteran fractured his 
lower right leg prior to his entrance into active duty and 
the presumption of soundness is overcome.  

The Board must now consider whether the veteran's pre-
existing right leg disorder was aggravated by service and, if 
so, whether the current disability is causally related to 
such aggravation.  In this vein, a preexisting injury or 
disease will be considered to have been aggravated by active 
service, where there is an increase in disability during such 
service, unless there is a specific finding that the increase 
in disability is due to the natural progress of the disease. 
38 C.F.R. § 3.306(a) (2007). 
Significantly, however, intermittent flare-ups of a pre-
existing disorder are insufficient to be considered an 
aggravation.  

Therefore, the threshold questions are: 1) was there an 
increase in the veteran's pre-existing right leg disorder 
when he served on active duty, and 2) if an increase is 
shown, was it due to the natural progression of the disease.  
Based on the evidence below, the Board finds that the 
veteran's disorder did not undergo a permanent increase 
during military service, but was a temporary flare-up of a 
pre-existing condition.

First, although the veteran apparently experienced an 
incident of right leg pain during his brief period of active 
duty, the post-service medical evidence does not show 
complaints of, treatment for, or a diagnosis of residuals of 
a right tibia and fibula fracture for many years after 
discharge.  While his service medical records reflect that an 
in-service incident of right leg pain, his actual active duty 
service was of such a short duration with only a single 
incident of pain that it cannot be said that there was a 
permanent increase in the pre-existing disability during 
active duty.  

Moreover, the post-service medical evidence does not indicate 
any findings of treatment for a right leg disorder for many 
years after service.  Specifically, medical records are 
negative for complaints or treatment for right leg problems 
until 2000 (nearly 25 years after service separation).  In 
this case, the Board emphasizes the multi-year gap between 
discharge from military service (1975) and his post-service 
treatment for a right leg disorder.  

The number of years lapsed between the in-service incident 
and the first post-service episode weighs against a finding 
of a permanent increase in the veteran's pre-service 
residuals of a right tibia and fibula fracture while he was 
on active duty.  This issue is not whether there is an 
increase in the veteran's right leg condition after service; 
it is whether there was an increase during military service.

The Board has considered the veteran's statements asserting 
continuity of symptomatology of his currently-diagnosed 
residuals of a right tibia and fibula fracture and active 
duty service.  In rendering a decision on appeal, the Board 
must analyze the credibility and probative value of the 
evidence, account for the evidence which it finds to be 
persuasive or unpersuasive, and provide the reasons for its 
rejection of any material evidence favorable to the claimant.  
See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); 
Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  

Competency of evidence differs from weight and credibility.  
The former is a legal concept determining whether testimony 
may be heard and considered by the trier of fact, while the 
later is a factual determination going to the probative value 
of the evidence to be made after the evidence has been 
admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno 
v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. 
Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may 
affect the credibility of testimony, it does not affect 
competency to testify").

The Board acknowledges that the veteran is competent to 
provide evidence of his own experiences of a right leg 
condition.   However, the multi-year gap between service 
separation and evidence of complaints or treatment for a 
right leg condition, are highly suggestive that there was no 
in-service increase in the veteran's pre-service right leg 
condition and it weighs heavily against the claim he now 
makes that he has had problems ever since service

Indeed, private records dated prior to 2000 contain no 
references to on-going symptomatology since service.  In this 
regard, evidence of a prolonged period without medical 
complaint, and the amount of time that elapsed since military 
service, can be considered as evidence against the claim.  
Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  
Therefore, continuity of symptomatology has not been shown.

Next, service connection may be granted when a medical nexus 
is established between the claimed disorder and active duty 
service.  The Board acknowledges an opinion from a private 
physician dated August 2004 finding that the veteran's right 
ankle injury was aggravated by boot camp.  However, the Board 
places less probative value on the opinion for several 
reasons.  

First, this opinion was arrived at based solely on the 
veteran's reported history provided to the examiner that he 
injured his leg in-service.  To this end, the Board finds the 
veteran's statements to be inconsistent with the evidence of 
record and of little probative value.  The Veterans Claims 
Court has held that the Board is not obligated to accept 
medical opinions premised on the veteran's recitation of 
medical history.  See Godfrey v. Brown, 8 Vet. App. 113 
(1995).  

Further, reliance on a veteran's statements renders a medical 
report incredible only if the Board rejects the statements of 
the veteran.  See Kowalski v. Nicholson, 19 Vet. App. 171 
(2005) (citing Wilson v. Derwinski, 2 Vet. App. 614, 618 
(1992) for the proposition that Board may not disregard a 
medical opinion solely on the rationale that the medical 
opinion was based on a history given by the veteran); see 
also Reonal v. Brown, 5 Vet. App. 458, 460 (1993) (finding 
Board may reject medical opinion based on facts provided by 
the veteran previously found to be inaccurate); Swann v. 
Brown, 5 Vet. App. 229, 233 (1993) (finding Board is not 
bound to accept uncorroborated account of veteran's medical 
history but must assess the credibility and weight of the 
evidence provided by the veteran rejecting it).

Here, the veteran's reported history of an in-service injury 
is not otherwise supported by the evidence of record.  To the 
contrary, the evidence reflects that he received treatment 
for a right leg fracture prior to service and was treated on 
an isolated occasion for leg pain in-service.  Next, the 
physician characterized the break as a serious fracture when 
there is no indication in the file the extent of the pre-
service fracture.  Further, the evidence shows that it was 
well-healed at the time the veteran entered into active duty.

Moreover, Dr. S.'s opinion did not account for the long 
absence of any documented right leg symptomatology following 
the veteran's separation from military service.  Therefore, 
the examiner's reliance on such history lessens the probative 
value of his conclusions.  

The Board has also considered the veteran's statements 
asserting a relationship between his currently-diagnosed 
right leg disorder and active duty service.  As stated above, 
while he is competent to report symptoms, he is not competent 
to offer opinions on medical diagnosis or causation.  See 
Layno v. Brown, 6 Vet. App. at 470; Moray v. Brown, 5 Vet. 
App. 211 (1993); Espiritu v. Derwinski, 2 Vet. App. 482 
(1992).

Based on the competent evidence of record, no link is 
established between the veteran's residuals of a right tibia 
and fibula fracture and a single incident of right leg pain 
during his brief period of active duty, to include the 
question of aggravation.  Therefore, the veteran's claim of 
service connection for a right leg disorder must be denied.  
As the preponderance of the evidence is against this claim, 
the benefit of the doubt doctrine is inapplicable.  See 
Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Finally, as provided for by the Veterans Claims Assistance 
Act of 2000 (VCAA), VA has a duty to notify and assist 
claimants in substantiating a claim for VA benefits.  
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 
& Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 
3.326(a) (2007).  

Proper notice from VA must inform the claimant of any 
information and medical or lay evidence not of record (1) 
that is necessary to substantiate the claim; (2) that VA will 
seek to provide; (3) that the claimant is expected to 
provide; and (4) must ask the claimant to provide any 
evidence in her or his possession that pertains to the claim 
in accordance with 38 C.F.R. § 3.159(b)(1).  Quartuccio v. 
Principi, 16 Vet. App. 183 (2002).  This notice must be 
provided prior to an initial unfavorable decision on a claim 
by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 
2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

In addition, the notice requirements of the VCAA apply to all 
five elements of a service-connection claim, including: (1) 
veteran status; (2) existence of a disability; (3) a 
connection between the veteran's service and the disability; 
(4) degree of disability; and (5) effective date of the 
disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 
473 (2006).  Further, this notice must include information 
that a disability rating and an effective date for the award 
of benefits will be assigned if service connection is 
awarded.  Id. at 486.  

VCAA notice errors are presumed prejudicial unless VA shows 
that the error did not affect the essential fairness of the 
adjudication.  To overcome the burden of prejudicial error, 
VA must show (1) that any defect was cured by actual 
knowledge on the part of the claimant; (2) that a reasonable 
person could be expected to understand from the notice what 
was needed; or, (3) that a benefit could not have been 
awarded as a matter of law.  See Sanders v. Nicholson, 487 
F.3d 881 (Fed. Cir. 2007).  

In claims to reopen, VA must both notify a claimant of the 
evidence and information that is necessary to reopen the 
claim and notify the claimant of the evidence and information 
that is necessary to establish entitlement to the underlying 
claim for the benefit that is being sought.  Kent v. 
Nicholson, 20 Vet. App. 1 (2006).

To satisfy this requirement, the Secretary is required to 
look at the bases for the denial in the prior decision and to 
provide the claimant with a notice letter that describes what 
evidence would be necessary to substantiate those elements 
required to establish service connection that were found 
insufficient in the previous denial.  

In this case, the notice letter provided to the veteran in 
May 2004 included the criteria for reopening a previously 
denied claim, the criteria for establishing service 
connection, and information concerning why the claim was 
previously denied.  Consequently, the Board finds that 
adequate notice has been provided, as he was informed about 
what evidence was necessary to substantiate the elements 
required to establish service connection that were found 
insufficient in the previous denial.  

Moreover, the veteran demonstrated actual knowledge of what 
was needed to support his claim on a direct basis.  
Specifically, in his notice of disagreement and substantive 
appeal, he maintained that he reinjured his ankle in service 
and that his pre-service fracture was aggravated during his 
period of active duty.  In addition, he submitted evidence in 
support of his claim.  This indicates his understanding of 
what was needed to support the claim for service connection.

There is no allegation from the veteran that he has any 
evidence in his possession that is needed for full and fair 
adjudication of this claim.  Under these circumstances, the 
Board finds that the notification requirements of the VCAA 
have been satisfied as to both timing and content.

With respect to the Dingess requirements, in June 2006, the 
RO provided the veteran with notice of what type of 
information and evidence was needed to establish a disability 
rating, as well as notice of the type of evidence necessary 
to establish an effective date.  With that letter, the RO 
effectively satisfied the remaining notice requirements with 
respect to the issue on appeal.  

Therefore, adequate notice was provided to the veteran prior 
to the transfer and certification of his case to the Board 
and complied with the requirements of 38 U.S.C. § 5103(a) and 
38 C.F.R. § 3.159(b).  

Next, VA has a duty to assist the veteran in the development 
of the claim.  This duty includes assisting him in the 
procurement of service medical records and pertinent 
treatment records and providing an examination when 
necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

In determining whether the duty to assist requires that a VA 
medical examination be provided or medical opinion obtained 
with respect to a veteran's claim for benefits, there are 
four factors for consideration.  

These four factors are:  (1) whether there is competent 
evidence of a current disability or persistent or recurrent 
symptoms of a disability; (2) whether there is evidence 
establishing that an event, injury, or disease occurred in 
service, or evidence establishing certain diseases 
manifesting during an applicable presumption period; (3) 
whether there is an indication that the disability or 
symptoms may be associated with the veteran's service or with 
another service-connected disability; and (4) whether there 
otherwise is sufficient competent medical evidence of record 
to make a decision on the claim.  38 U.S.C. § 5103A(d); 
38 C.F.R. § 3.159(c)(4).  

With respect to the third factor above, the Court of Appeals 
for Veterans Claims 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 that 
suggests 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 v. 
Nicholson, 20 Vet. App. 79 (2006).  

In the present case, a specific VA medical examination is not 
necessary to decide the claim.  Given the single complaint 
in-service, the short time spent on active duty, the absence 
of evidence of the disorder for many years after separation, 
and no competent evidence of a nexus between service and the 
veteran's claim, a remand for a VA examination would unduly 
delay resolution.

The Board finds that all necessary development has been 
accomplished, and therefore appellate review may proceed 
without prejudice to the veteran.  See Bernard v. Brown, 4 
Vet. App. 384 (1993).  

The RO has obtained service medical records.  He submitted 
private treatment records and statements in support of his 
claim.  Significantly, neither the veteran nor his 
representative has identified, and the record does not 
otherwise indicate, any additional existing evidence that is 
necessary for a fair adjudication of the claim that has not 
been obtained.  

Hence, no further notice or assistance to the veteran is 
required to fulfill VA's duty to assist in the development of 
the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 
281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 
Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 
Vet. App. 183 (2002).


ORDER

New and material evidence having been submitted, the 
application to reopen a claim of entitlement to service 
connection for residuals of a right tibia and fibula fracture 
is granted.  The appeal is granted to this extent.

Service connection for residuals of a right tibia and fibula 
fracture is denied.



____________________________________________
L. HOWELL
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs