Citation Nr: 0810510 Decision Date: 03/31/08 Archive Date: 04/09/08 DOCKET NO. 04-02 862 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES Entitlement to service connection for bilateral leg disability. Entitlement to service connection for a left lung disorder, to include as due to Agent Orange exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The veteran served on active duty from December 1967 to October 1970. He served in Vietnam. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from rating decisions of the VA Regional Office (RO) in Louisville, Kentucky that denied entitlement to service connection for bilateral leg disability, and service connection for a left lung disorder, to include as due to Agent Orange exposure In correspondence dated in July 2007 submitted by his representative, the veteran requests increased ratings for service-connected post-traumatic stress disorder and a back disorder. These matters are not properly before the Board for appellate review and are referred to the RO for appropriate consideration. FINDINGS OF FACT 1. Chronic bilateral leg disability was first clinically indicated many years after discharge from service. 2. A lung disorder was first clinically indicated at least years after discharge from service and has not been competently attributed to Agent Orange exposure; no ratable left lung disorder is currently demonstrated. CONCLUSIONS OF LAW Bilateral leg disability was not incurred in or aggravated by service §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp 2007); 38 C.F.R. § 3.303 (2007) A left lung disorder, to include as due to Agent Orange exposure, was not incurred in or aggravated by service 38 U.S.C.A. §§ 1110, 1116, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309(e) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran asserts that he now has lung disease and bilateral leg disability of service onset for which service connection should be granted. Preliminary Considerations - VA's Duty to Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and 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). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, VCAA duty-to-notify letters were sent to the appellant in April, May and June 2002 and July 2006. In this case, the VCAA duty to notify was adequately satisfied subsequent to the initial AOJ decision by way of a letter sent to the appellant in July 2006 that fully addressed all four notice elements. The letter informed the appellant of what evidence was required to substantiate the claims and of the appellant's and VA's respective duties for obtaining evidence. The appellant was also asked to submit evidence and/or information in his possession to the AOJ. Although the notice letter was not sent before the initial AOJ decision in this matter, the Board finds that this error was not prejudicial to the appellant because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the appellant been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the AOJ also readjudicated the case by way of a supplemental statement of the case issued in May 2007 after the notice was provided. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, although notice was provided, service connection is being denied and no rating or effective date will be assigned with respect to this claimed condition. The Board finds that all necessary development has been accomplished, and that appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained extensive VA outpatient treatment records dating through 2007. Private clinical records the veteran has identified have also been requested. The appellant has been afforded VA medical examinations over the course of the appeal. Significantly, neither the appellant 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 claims that has not been obtained. The Board finds that no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant 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). The claims are ready to be considered on the merits. Law and Regulations Service connection will be granted for disability resulting from disease or injury incurred in or aggravated in active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service or aggravated by service. 38 C.F.R. §§ 3.303, 3.306 (2007). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may legitimately be questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (2007). Under the provisions of 38 C.F.R. § 3.309(e)(2007), if a veteran was exposed to an herbicide agent, including Agent Orange, during active military, naval, or air service and has a disease listed in 38 C.F.R. § 3.309(e), such disease shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met even though there is no record of such disease during service, provided that the rebuttable presumption provisions of § 3.307(d) are also satisfied. These diseases include chloracne or other acneform disease consistent with chloracne, type II diabetes, Hodgkin's disease, multiple myeloma, Non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers, and soft-tissue sarcoma. 38 C.F.R. § 3.309(e). Factual background The veteran's service medical records reflect that in November 1968, he was involved in an automobile accident with complaints of pain of the left chest and left knee. There was tenderness to palpation of the left knee with limited range of the left knee motion. A superficial abrasion of the left upper leg was observed. X-rays of the chest and left knee were negative. An ace wrap was applied to the left knee. He was seen for a "knot" of the right leg in August 1970 for which an antibiotic was prescribed. Upon examination in October 1970 for discharge from active duty, the lower extremities were evaluated as normal and a chest X- ray was interpreted as within normal limits. A private medical report dated in October 1972 showed complaints of intermittent pain in the hip joints of one and one half years' duration. The veteran related that constant pain had begun to radiate into the right leg and that he had been told it was arthritis or a slipped disc. Initial diagnoses of rule out lumbar disc disease and rule out right hip arthritis were provided. An assessment of right sciatic signs was recorded in 1973. The appellant was afforded a VA examination in November 1972 and related that he had had pain in right knee and hip during service but was not treated for it as he did not think too much about it at the time. He stated that he had been hospitalized a year before and was told he had arthritis, but that a doctor had subsequently told him he had no bone pathology. The veteran said that he worked as a carpenter's helper and had had more pain in the right hip and knee for the past year, and was unable to work approximately one day a week because of pain in the right leg. The pain was described as in the right hip area going down into the muscles of the leg to the foot. He related that he had pain in his right knee joint associated with this, but that the pain in the hip was worse. Examination disclosed full range of motion of the right knee with normal knee kicks and ankle jerks. Following examination, a diagnosis of history of myalgia, right hip area, was rendered. Examination of the respiratory system revealed no abnormal findings. A VA X-ray of the chest was obtained in December 1972 showing a well-healed granuloma in the left base. An impression of normal chest was recorded. Radiological study of the right knee at that time showed no osseous or articular abnormality. A VA medical certificate dated in August 1973 noted low back, hip and leg pain for three years. The veteran was subsequently admitted to a VA facility in August 1973 for complaints of pain in both hips that was increased by exercise. He complained of numbness of the right leg. Motor examination of the lower extremities as well as reflexes and straight leg raising tests were negative. It was reported that a chest X-ray was negative. Upon discharge, a diagnosis of possible early ankylosing spondylitis was rendered. A private X-ray report dated in February 1990 was received showing evidence of several old calcified granulomas in the left lung base with no evidence of acute pulmonary infiltration. The veteran filed a claim for service connection for leg disability and for a lung disorder due to Agent Orange exposure in February 2002. Subsequently received were VA outpatient clinical records dating from 2000 showing that the veteran sought treatment for multiple complaints and disorders, including right and left knee disabilities. On psychiatric evaluation in June 2003, it was reported that he came into the office on crutches with a rigid right knee stating that he 'blew out' the knee when he missed a step while exiting his house, severely dislocating the right patella. It was also reported that he recalled that in 1985, he had a medial and lateral arthroscopic meniscus repair on the left knee. A clinic note dated in September 2003 indicated that the appellant presented the interviewer with a copy of a recent MRI (magnetic resonance imaging) knee results showing an ACL (anterior cruciate ligament) tear, subchondral bone bruising and tear of the superoinferior articular surface of the posterior horn of the medial meniscus. VA outpatient clinic notes reflect that the veteran was evaluated for intervertebral disc syndrome in December 2005 where it was reported that pain radiated into the buttock and leg. Similar symptoms with pain reportedly going down into the knee and leg were recorded in March 2006. Deep tendon reflexes were absent on the right at the ankle and knee and were 1+ in the left ankle and knee. In February 2007, it was noted that there was a remote history of right knee injury. The veteran was reported to have stated that he had had an ACL tear in the past and was told he would need knee replacement in the future. By rating action dated in January 2006, service connection was granted for degenerative disc disease of the lumbar spine, effective from March 2002, rated 20 percent disabling. Legal analysis 1. Service connection for bilateral leg disability The evidence in this instance does not show that the veteran sustained any type of injury to the right leg in service. He was treated for a "knot" of the right leg in August 1970, but was prescribed antibiotics in this regard, presumably for infection. The record reflects that the appellant sought treatment for pain radiating down from the right hip area in October 1972 whereupon it was suggested that there might be disc involvement. Although he did state on VA examination in November 1972 that he had had right knee pain since service, on examination it was indicated that pain radiated from the hip. No diagnosis pertaining to the right knee was recorded at that time. He was hospitalized at a VA facility in August 1973 whereupon his symptoms were attributed to possible ankylosing spondylitis. The evidence thus strongly indicates that post service leg symptoms were attributable to radiating back and hip pain. The Board points out that service connection has been granted for degenerative disc disease of the lumbar spine. The record shows that the veteran did not have a separate diagnosis of a right knee disorder until an overwhelming right knee injury in June 2003 resulting in meniscal tear. This was many years after discharge from active duty. Under the circumstances, the Board finds that current right leg/knee disability is of post service onset and service connection is denied. As to the left knee, it is shown that the appellant sustained left knee trauma in late 1968, but no further reference to knee symptomatology is documented during the remaining two years of his term of duty. No left knee complaints were noted on VA examination in 1972 or in VA clinical data in 1973. It thus appears that left knee symptoms in service did not result in a chronic disorder as continuity of inservice symptomatology is not established. See 38 C.F.R. § 3.303. There is no indication of any specific disability affecting the left knee until approximately 15 years after discharge from service. VA and private clinical records show that the veteran himself provided history of left knee meniscal tear and surgery in 1985. Under the circumstances, it is found that current left leg/knee disability is also of post service onset and service connection is denied. 2. Service connection for a lung disorder, to include as due to Agent Orange exposure. The veteran's service medical records do not refer to any respiratory symptoms and a chest X-ray was clear at service separation. Although a granuloma of the left lung base was noted on X-ray in 1972, two years after discharge from active duty, this was interpreted as a normal study at that time. A similar clinical finding was observed on private chest X-ray in 1990 with no evidence of an acute process. The Board finds that in the absence of a showing of a granuloma on chest X-ray at discharge from active duty, it must be found to be of post service onset. No physician of record has opined that a granuloma is related to service or Agent Orange exposure. Additionally, a granuloma is not one of the diseases listed under 38 C.F.R. § 3.309(e) for which service connection may be presumed as a consequence of exposure to Agent Orange under 38 U.S.C.A. § 1116 and 38 C.F.R. §§ 3.307 and 3.309. Moreover, the Board points out in this instance that voluminous VA outpatient clinic notes dating from 2000 reflect no treatment for respiratory or pulmonary complaints, symptoms or disorder. In this regard, the Board points out that service connection requires a finding of a current disability that is related to an injury or disease incurred in service. Degmetich v. Brown, 104 F.3d 1328, 1332 (Fed. Cir. 1997); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). In the absence of evidence of the claimed disability, the weight of the evidence is against the claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. at 143. The Board would also point out that as a layperson, the appellant alone cannot support the claim on the basis of his assertions alone as he is not competent to provide a probative opinion on a medical matter. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997). Therefore, service connection for a left lung disorder must be denied on the basis that no ratable current disability is clinically demonstrated. The preponderance of the evidence is against the claims. ORDER Service connection for bilateral leg disability is denied. Service connection for a left lung disorder, to include as due to exposure to Agent Orange, is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs