Citation Nr: 0810615 Decision Date: 03/31/08 Archive Date: 04/09/08 DOCKET NO. 04-27 577 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for right leg disability. ATTORNEY FOR THE BOARD S. Finn, Associate Counsel INTRODUCTION The veteran served on active duty from June 1954 to August 1954. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a February 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. This case was remanded in April 2006 for further development. FINDING OF FACT Prior to entry into active service in June 1954, the veteran had osteomyelitis of the right femur with shortening of the right leg; and such preexisting right leg disability was not aggravated beyond the natural progress of the osteomyelitis. CONCLUSION OF LAW A right leg disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1153 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.306 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. 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.A. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a). Under 38 U.S.C.A. § 5103(a) (West 2002), VA must notify the claimant of any information and evidence not of record that is necessary to substantiate the claim, which information and evidence VA will seek to provide and which information and evidence the claimant is expected to provide. Furthermore, in compliance with 38 C.F.R. § 3.159(b) (2007), VA must ask the claimant to provide any evidence in her or his possession that pertains to the claim. The VCAA notice should be provided to a claimant before the Agency of Original Jurisdiction (AOJ) renders the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). If such notice is sent after the initial decision, then it should be sent before a readjudication of the claim. A Supplemental Statement of the Case, when issued following a VCAA notification letter, satisfies the due process and notification requirements for an adjudicative decision for these purposes. See also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Mayfield v. Nicholson, 20 Vet. App. 537 (2006). In the present case, the veteran was issued an April 2006 letter that essentially met the requirements set forth in 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). In the present case, the veteran was issued a VCAA letter meeting the specific requirements of C.F.R. § 3.159(b)(1) in April 2006. While this letter was issued subsequent to the appealed rating decision, the veteran's case was subsequently readjudicated in an October 2007 supplemental statement of the case, consistent with the Mayfield line of decisions. The veteran was specifically notified that the information and evidence needed to substantiate his service connection claim was evidence demonstrating an injury in military service, or a disease that began in or was made worse during military service, or there was an event in service that caused an injury or disease. He was notified of what evidence VA would obtain for him, of what evidence he was responsible for submitting, and was notified to submit any pertinent evidence in his possession. Thus, the Board concludes the defect in the timing of the VCAA notice was remedied and is deemed harmless error. The Board is also aware of the considerations of the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), regarding the need for notification that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, such notification was provided in an April 2006 letter. As to VA's duty to assist the veteran with the obtaining of evidence necessary to substantiate a claim under 38 U.S.C.A. § 5103A, the VA has obtained records of treatment reported by the veteran, and there is no indication from the claims file of additional medical treatment for which VA has not obtained, or made sufficient efforts to obtain, corresponding records. The Board also notes that the veteran has been afforded a comprehensive VA examination in conjunction with this appeal, addressing the disorder at issue. In summary, all relevant facts have been properly developed with regard to the veteran's claim, and no further assistance is required in order to comply with VA's statutory duty to assist with the development of facts pertinent to the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Accordingly, the Board finds that no prejudice to the veteran will result from an adjudication of this appeal in this Board decision. Rather, remanding this case for further VCAA development would be an essentially redundant exercise and would result only in additional delay with no benefit to the veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). II. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). If a pre-existing disorder is noted upon entry into service, service connection may be granted based on aggravation during service of that disorder. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b); see Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). A pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air 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 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). See Akins v. Derwinski, 1 Vet. App. 228 (1991) (VA must point to a specific finding that increase in disability is due to the natural progress of the condition). 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. 38 C.F.R. § 3.306(b). The veteran claims that his leg disability was aggravated while he was in service. Prior to his service, the veteran was diagnosed with osteomyelitis of his right femur and received treatment for it between the years 1940 and 1949, which included two operations. A June 1954 private treatment record noted that as a result of his disease and surgeries, his right leg was two inches shorter than his left leg. The veteran entered military service in June 1954. The report of the veteran's preinduction medical examination noted that he had "Old osteo of rt femur with 5/8' of shortening occasional symptoms." The veteran was discharged in August 1954, after a disposition board found him physically unfit for active duty. The board based its findings on a report of medical examination dated July 7, 1954, which diagnosed the veteran with "[r]esidual of old osteomyelitis of femur right, shortening of right leg and osteoarthritis of right hip." Neither the veteran's preinduction examination nor any of the veteran's medical records prior to service, contained in the existing record, mention a diagnosis of osteoarthritis of the right hip. On VA examination in December 2003, the diagnosis was childhood disease of osteomyelitis of the right upper femur and a permanent shortening of the right leg by two inches. The examiner concluded that there was "no relation of the veteran's serious illness of osteomyelitis to his short term of military service." In a June 2007 examination, the veteran complained of a painful right lower extremity, including ankle pain as well as groin pain, shin splints and pain on the dorsum of his right foot. The examiner's assessment was residuals of femoral osteomyelitis with shortening of right leg by 5 cm and osteoarthritis of the right hip, right knee, and right ankle. X-rays of the right femur showed minor trabecular changes at the junction between the proximal and middle thirds of the femur compatible with a very old osteomyelitis. The examiner opined that "[a]ll of the arthritic changes noted above are entirely compatible with the residuals of the osteomyelitis which was noted prior to entry into active service." The examiner mentioned that the active service was of short duration and that it was more likely than not that the arthritic changes would have existed even had the veteran not been inducted into active service. He further stated that "all of the changes in the lower extremities [were] entirely compatible with the natural progress of the osteomyelitis as noted on entry into the service." In a September 2007 VA examination, the veteran told the examiner that he has experienced a gradual onset of pain in his left hip which has become chronic. The veteran currently wears a brace for his right leg. The examiner noted that the veteran was a child when he developed a limp in the right leg from what was believed to be sclerosing osteoid, which was drained. In 1941, a portion of the right femur was resected for suspicion of osteoid osteoma. The veteran in his July 2004 lay statement, in essence, stated that osteomyelitis was not incurred in the military, but was aggravated by service. The Court, however, has consistently held that service connection may not be predicated on lay assertions of medical causation. See Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). Here, the veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render either a diagnosis or a competent opinion as to medical causation. Accordingly, the veteran's lay opinion does not constitute competent medical evidence and lacks probative value as to the matter of medical diagnoses and causation. See also Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report that on which he or she has personal knowledge); Espiritu v. Derwinski, 2 Vet. App. 482 (1992) (a veteran is not competent to offer opinions on medical diagnosis or causation). After careful review of the veteran's service medical records, post-service medical records, and VA examination, along with his lay statements, the Board determines that the record evidence clearly and unmistakably demonstrates that the veteran preexisting right leg disability was not aggravated beyond the natural progress of that condition, which is supported by the specific finding that "all of the changes in the lower extremities [were] entirely compatible with the natural progress of the osteomyelitis," as aptly noted in the June 2007 VA report. Thus, the presumption of aggravation in service is rebutted. Accordingly, the appeal is denied. ORDER Entitlement to service connection for right leg disability is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs