Citation Nr: 0810766 Decision Date: 04/01/08 Archive Date: 04/14/08 DOCKET NO. 04-28 641A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE 1. Entitlement to service connection for post-operative right hip fracture, including as secondary to the service-connected disabilities of right foot 2nd metatarsal stress fracture residuals and right heel fracture residuals with post- traumatic ankle arthritis. 2. Entitlement to an increased evaluation for right foot 2nd metatarsal stress fracture residuals, currently evaluated as noncompensable. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. N. Hyland, Counsel INTRODUCTION The veteran had active duty from September 1977 to September 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2002 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). This matter was previously before the Board and was remanded in May 2007. FINDINGS OF FACT 1. A right hip disability was not manifested during the veteran's active duty service or for many years thereafter, nor is a right hip disability otherwise related to the veteran's active duty service, including as secondary to the veteran's service-connected disabilities of right foot 2nd metatarsal stress fracture residuals and right heel fracture residuals with post-traumatic ankle arthritis. 2. The veteran's service-connected right foot 2nd metatarsal stress fracture residuals are manifested by right foot pain with pain on palpation and no visible deformity. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right hip disability, to include as secondary to service- connected right foot 2nd metatarsal stress fracture residuals and right heel fracture residuals with post-traumatic ankle arthritis, have not been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2007). 2. The criteria for entitlement to a compensable evaluation for the veteran's service- connected right foot 2nd metatarsal stress fracture residuals have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.72, Diagnostic Codes 5276-5284 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to advise a claimant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103 (West 2002); 38 CFR § 3.159(b)(1) (2007). As part of that notice, VA must inform the claimant of the information and evidence he is expected to provide, as well as the information and evidence VA will seek to obtain on his behalf. In addition, VA must advise a claimant to provide any additional evidence in his possession that pertains to the claim. See 38 U.S.C.A. § 5103 (West 2002); 38 CFR § 3.159(b)(1) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, VA may proceed with adjudication of a claim if errors in the timing or content of the VCAA notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dunlap v. Nicholson, No. 03-320 (U.S. Vet. App. Mar. 22, 2007); see also Pelegrini, 18 Vet. App. at 121; Sanders v. Nicholson, 487 F.3d 892 (Fed. Cir. 2007); Simmons v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). For an increased-compensation claim, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez-Flores v. Peake, No. 05-0355, (U.S. Vet. App. January 30, 2008). Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores, slip op. at 5-6. In August and October 2003 and May 2007 letters, the RO provided notice to the veteran regarding what information and evidence is needed to substantiate service connection claims, increased rating claims, and earlier effective date claims, as well as specifying what information and evidence must be submitted by him, what information and evidence will be obtained by VA, and the need for him to advise VA of or submit any further evidence that pertains to his claims. The notices were not provided until after the rating decision on appeal was issued. However, the veteran was not prejudiced from this timing error because the veteran's claim was readjudicated (see the November 2007 supplemental statement of the case) after the veteran received appropriate VCAA notice in May 2007. As such, the Board finds that the timing error regarding VCAA notice did not affect the essential fairness of the adjudication process. The notices did not comply with all the requirements articulated in the holding of Vazquez-Flores v. Peake, No. 05-0355, (U.S. Vet. App. January 30, 2008). In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit held that any error by VA in providing the notice required by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial, and that once an error is identified as to any of the four notice elements the burden shifts to VA to demonstrate that the error was not prejudicial to the appellant. The Federal Circuit held in Sanders that all VCAA notice errors are presumed prejudicial and require reversal unless VA can show that the error did not affect the essential fairness of the adjudication. To do this, VA must show that the purpose of the notice was not frustrated, such as by demonstrating: (1) that any defect was cured by actual knowledge on the part of the claimant, see Vazquez-Flores v. Peake, No. 05-0355, slip op. at 12 (U.S. Vet. App. January 30, 2008) ("Actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim.") (citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007)); (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. Sanders, 487 F.3d at 889. Additionally, consideration also should be given to "whether the post- adjudicatory notice and opportunity to develop the case that is provided during the extensive administrative appellate proceedings leading to the final Board decision and final Agency adjudication of the claim ... served to render any pre- adjudicatory section 5103(a) notice error non-prejudicial." Vazquez-Flores v. Peake, No. 05-0355, slip op. at 9 (U.S. Vet. App. January 30, 2008). In this case, the Board again finds that the notice error did not affect the essential fairness of the adjudication process because the veteran's claim was readjudicated in the November 2007 Supplemental Statement of the Case after he received appropriate notice of the rating criteria for rating foot injuries in the June 2004 Statement of the Case. The RO has taken appropriate action to comply with the duty to assist the veteran with the development of his claim. The record includes service records, VA treatment records, and appropriate VA medical examinations. As such, the Board finds that the record as it stands includes sufficient competent evidence to decide this claim. See 38 C.F.R. § 3.159(c)(4). Under these circumstances, the Board finds no further action is necessary to assist the veteran with the claim. In sum, the record reflects that the facts pertinent to the claim have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations. That is to say, "the record has been fully developed," and it is "difficult to discern what additional guidance VA could [provide] to the veteran regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004). Accordingly, the Board will adjudicate the claim. Analysis Service Connection Claim Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). 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). Under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. That regulation permits service connection not only for disability caused by service- connected disability, but for the degree of disability resulting from aggravation to a nonservice- connected disability by a service-connected disability. See 38 C.F.R. § 3.310 (2007). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). In the instant case, however, after examining the record and the veteran's contentions, the Board finds that the veteran has raised no contentions regarding aggravation and there is no competent medical evidence suggesting aggravation. The veteran's service medical records are devoid of reference to right hip complaints. Moreover, there is no competent medical evidence relating the veteran's current right hip disability to his active duty service period. As such, entitlement to service connection for a right hip disability on a direct service connection basis is not warranted. The record shows that the veteran injured his right hip in 1998 while moving a heavy box at work. Although it is not entirely clear, it appears that the veteran is contending that his service-connected right foot disabilities caused him to limp which, in turn, caused the accident which injured his right hip. There are several medical opinions of record which address the likelihood of a relationship between the veteran's service-connected right foot disabilities and his current right hip disability. The Court of Appeals for Veterans Claims has held that the Board must determine how much weight is to be attached to each medical opinion of record. See Guerrieri v. Brown, 4 Vet. App. 467 (1993). Greater weight may be placed on one medical professional's opinion over another, depending on factors such as reasoning employed by the medical professionals and whether or not, and the extent to which, they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). In assessing evidence such as medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. 444, 448-9 (2000). A November 2002 VA examination report shows that the veteran reported injuring his right hip in 1998. The examiner opined that there was no relationship between the veteran's service- connected fractures in the right foot and his current right hip disability. A June 2003 document from Dr. Tackett, M.D., states that the veteran's right hip fracture in 1998 could be related to the old foot fracture in 1977, secondary to chronic limp creating degenerative changes in the right hip. A June 2004 VA examination report also notes the history of the veteran's right hip injury in 1988. The report notes that the veteran expressed his theory that since he had been limping on his right foot for a long time, this weakened his right hip. After examining the veteran and reviewing the veteran's c-file, the examiner noted that he did not see any correlation between the veteran's right foot disability and his right hip disability. In summary, there are two medical opinions which weigh against the veteran's claim and one medical opinion which weighs in favor of the veteran's claim. The two medical opinions which weigh against the veteran's claim contain statements which concretely state the likelihood of a relationship between the veteran's service-connected right foot disabilities and his current right hip disability. On the other hand, the one medical opinion which weighs in favor of the veteran's claim states only that the veteran's hip disability "could be related" to his service-connected right foot disabilities. The Board finds that this opinion is expressed in terms too speculative to have high probative value. 38 C.F.R. § 3.102 provides that service connection may not be based on a resort to speculation or even remote possibility. See Morris v. West, 13 Vet. App. 94, 97 (1999) (diagnosis that appellant was "possibly" suffering from schizophrenia deemed speculative); See also Obert v. Brown, 5 Vet. App. 30, 33 (1993) (physician's statement that the veteran may have been having some symptoms of multiple sclerosis for many years prior to the date of diagnosis deemed speculative); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (medical evidence which merely indicates that the alleged disorder "may or may not" exist or "may or may not" be related, is too speculative to establish the presence of the claimed disorder or any such relationship). As such, the Board finds that the preponderance of the competent medical evidence of record weighs against the veteran's claim of entitlement to service connection for a right hip disability, claimed as secondary to the service- connected right foot disabilities. Therefore, entitlement to service connection for a right hip disability, claimed as secondary to service-connected right foot disabilities, is not warranted. Increased Rating Claim Disability ratings are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 8 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet.App. 589, 594 (1991). When the veteran is appealing the original assignment of a disability rating following an award of service connection, the severity of his disability is to be considered during the entire period from the initial assignment of the rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. A November 2002 VA examination report reflects that the veteran complained his right foot bothered him on occasion with ambulation or weightbearing. On physical examination, the right foot was not deformed. There was some pain with application of pressure over the second tarsal bone. There was also mild pain with application of pressure over the heel. The diagnoses were residuals of stress fracture of the right heel and fracture of the second tarsal bone. An accompanying x-ray report showed a tiny calcaneal spur with no other focal bony abnormalities. A private medical record from June 2003 shows that x-ray images of the veteran's right foot revealed no abnormality. The osseous structures appeared to be intact and there was no fracture or osseous lesion depicted. A June 2004 VA examination report shows that the veteran reported pain in the right foot that caused him to limp. On physical examination, the veteran's right foot had dorsiflexion to 35 degrees and plantar flexion to 40 degrees with no pain in either direction. He had 75% of subtalar motion present with pain upon manipulation. He had palpable dorsalis pedis pulse and palpable posterior tibial pulse. X- ray images of the right foot showed arthritis in the subtalar joint. The veteran's disability is currently rated as noncompensable under Diagnostic Code 5283 which dictates that moderate malunion or nonunion of tarsal or metatarsal bones warrants a 10 percent disability rating. See 38 C.F.R. § 4.71(a), Diagnostic Code 5283. The competent medical evidence of record shows that the veteran's metatarsal stress fracture disability is manifested by right foot pain with pain on palpation and no visible deformity. The competent medical evidence demonstrates additional symptomatology of the right foot, such as dorsiflexion to 35 degrees and plantar flexion to 40 degrees without pain, arthritis of the subtalar joint and pain on manipulation of the subtalar joint, but these symptoms are attributable to the veteran's right heel disability, for which he is separately service-connected. Evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). As such, the Board finds that the veteran's residuals of a right foot metatarsal fracture are manifested only by right foot pain with pain on palpation and no visible deformity. Thus, there is no competent medical evidence of moderate malunion or nonunion of tarsal or metatarsal bones in order to warrant a 10 percent disability rating under Diagnostic Code 5283. Additionally, there is no competent medical evidence of flat foot, weak foot, claw foot, Morton's disease, hallux valgus, hallux rigidus or hammer toe in order to warrant a compensable disability rating under Diagnostic Codes 5276-5282. See 38 C.F.R. § 4.71(a), 5276-5282. Conclusion In making these determinations, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision. ORDER Service connection for post-operative right hip fracture, including as secondary to the service-connected disabilities of right foot 2nd metatarsal stress fracture residuals and right heel fracture residuals with post-traumatic ankle arthritis, is denied. A compensable evaluation for right foot 2nd metatarsal stress fracture residuals is denied. ____________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs