Citation Nr: 0811639 Decision Date: 04/09/08 Archive Date: 04/23/08 DOCKET NO. 04-05 018 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for above-the-knee amputation of the left lower extremity. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The veteran had active service from August 1951 to August 1955, and from February 1957 to October 1957. The veteran's appeal as to the issue listed above arose from a July 2003 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In February 2004, the veteran indicated on his appeal form (VA Form 9) that he desired a hearing before a Traveling Veterans Law Judge. However, in a statement received by the RO in March 2004, the veteran stated that he wished to withdraw his request for a hearing. See 38 C.F.R. § 20.702(e) (2007). Accordingly, the Board will proceed without further delay. FINDING OF FACT The veteran does not have an above-the-knee amputation, left lower extremity, as the result of disease or injury that was present during his active military service. CONCLUSION OF LAW The veteran's above-the-knee amputation, left lower extremity, was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran asserts that he is entitled to service connection for a left above-the-knee amputation, left lower extremity. During his October 2004 hearing, he testified that during service, aboard the U.S.S. Rochester in 1953, he got a rope wrapped around his leg and that he was jerked upside down, "causing an injury to the artery in my leg above my knee and also pulling my knee out." He asserts that he spent about three days in sick bay, followed by wearing a knee brace for about one to two months. The Board initially notes that in November 1976, the RO denied a claim for service connection for a left knee disability. There was no appeal, and the RO's decision became final. See 38 U.S.C.A. § 7105(c). In April 2003, the veteran filed a claim, noting that he had undergone an above- the-knee amputation of his left lower extremity. In July 2003, the RO denied the claim. It characterized the issue as whether new and material evidence had been received to reopen a claim "for service connection fore above knee amputation (formerly denied as arthritis, left knee, posteroperative under DC 5010-5257)." The Board has determined that a "new and material" analysis is not appropriate, and that the claim is more accurately characterized as stated on the cover page of this decision. Briefly stated, at the time of the November 1976 rating decision, the veteran had not yet undergone his above-the- knee amputation of his left lower extremity. In addition, as the cause(s) of the veteran's above-the-knee amputation of his left lower extremity could encompass diseases other than arthritis, as well as injuries, the claim will be analyzed on a direct basis. See Boggs v. Peake, No. 2007-7137 (Fed. Cir. Mar. 26, 2008) (holding that the "factual basis" of a claim for service connection is the veteran's disease or injury, rather than the symptoms of that disease or injury). Also of note, in a letter from the veteran, received in May 2007, he argued that his amputation had nothing to do with arthritis, rather, he argued that it was related to an arterial injury sustained during service. As a final preliminary matter, in a rating decision, dated in October 2007, the RO denied a claim for compensation benefits under 38 U.S.C.A. § 1151 for an above-the-knee amputation, left lower extremity. This issue is not currently on appeal, and is not within the scope of the issue on appeal. Nevertheless, to the extent that some of the evidence pertains to the relationship of post-service medical care to his amputation, it weighs against the claim, and has been discussed. Service connection may be granted for 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. Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, when "all of the evidence, including that pertinent to service, establishes that the disease was incurred during service." See 38 C.F.R. § 3.303(d). Service connection may also be granted for certain diseases, to include arthritis, when they are manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309. The veteran's service medical records do not show treatment for any relevant symptoms, or any relevant diagnoses. The veteran's separation examination report from his first period of active duty, dated in August 1955, and his entrance examination report for his second period of active duty, dated in January 1957, both show that his lower extremities were clinically evaluated as normal. In a "report of medical history" associated with the January 1957 entrance examination report, the veteran indicated that he did not have a history of a "'trick' or locked knee," lameness, or "arthritis or rheumatism." A separation examination report for the veteran's second period of active duty is not of record. As for the post-service medical evidence, it consists of VA and non-VA medical reports, dated between 1975 and 2006. This evidence includes multiple private treatment reports which show that in February 1975, the veteran sustained a left knee injury at his place of employment. Reports from C.R.V., M.D., dated between 1975 and 1990, show the following: in February 1975, the veteran sustained a twisting type injury to his left knee while pushing some heavy machinery in an attempt to keep it from falling upon him while at work; the impression was traumatic synovitis knees, bilateral; X-rays taken in July 1975 showed degenerative change; he sustained another left knee injury at work in 1979; X-rays revealed mild to moderate degenerative change and an arthroscopy revealed marked chondromalacia; he was "100 percent" impaired for work; he was expected to warrant a total knee replacement in the future; in 1980 he underwent a left knee arthrotomy; in 1982 he was noted to have advanced degenerative arthritis. All of these reports provide evidence against this claim, clearly revealing a severe post-service disability. A VA examination report, dated in October 1990, shows that the diagnoses included arteriosclerotic heart disease with a history of triple aorta-coronary bypass, marked degenerative arthritis of both knees postoperative, and circulatory problems of both lower extremities. Private treatment reports, dated in 1990, show that the veteran reported a history of intermittent left leg claudication dating back to service in 1953, that he received treatment for vascular occlusive disease, and that he underwent a femoral-popliteal above-the-knee bypass, left leg. Private treatment reports, dated in 1999, show that the veteran underwent a revision of his femoral-popliteal bypass, left leg. The postoperative diagnosis was ischemia of the left leg, secondary to arteriosclerosis. VA and non-VA reports dated in 2002, show the following: the veteran complained of left leg claudication and pain; he was noted to have peripheral vascular disease, to have been put on blood thinners; he was repeatedly advised to quit smoking, however, he did not do so. A VA progress note, dated in December 2002, notes that in March 2002 he was involved in a motor vehicle accident (MVA), and that as a result he was taken off of antithrombotic medication. The physician stated that his increased claudication was less likely due to the stoppage of his antithrombotic medication (Coumadin and Plavix) than his smoking and lack of exercise. Private treatment reports from the Medical Center Hospital, dated in January 2003, show that the veteran was diagnosed with an occlusion of the left femorapopliteal bypass graft, and that he underwent an above-the-knee amputation, left lower extremity. These reports state that the veteran had been in an MVA in May 2003, that he had been taken off of Coumadin therapy and not restarted, and that he had subsequently been found to have scant blood flow in his toes and to need revascularization. However, he responded poorly to his revascularization, and the following day he underwent an amputation. A statement from P.R.Z., M.D., dated in April 2003, notes that the veteran had been taken off of anticoagulants due to major areas of contusion from his MVA, that anticoagulant therapy had not been resumed after resolution of the contusions, and that, "With reasonable medical probability, the lack of anticoagulants which was precipitated by the motor vehicle accident did contribute to his amputation." A letter from A.C.L., M.D., dated in April 2003, states that the veteran had sought medical attention following his March 2003 MVA, and that "a nurse at a doctor's office told your wife for you to stop taking the Coumadin. Obviously, she was unaware of the fact of the severity of your peripheral vascular disease and that the Coumadin was essential for survival of your leg." The claims file includes a decision of the Social Security Administration (SSA) dated in 1988, which shows that the SSA determined that the veteran was disabled as of March 1975, with a primary diagnosis of degenerative joint disease, both knees, and a secondary diagnosis of adhesive capsulitis, left shoulder. The SSA's records include the veteran's application for benefits, in which he provided a date in February 1975 in response to the question, "When did your illness or injury first bother you?" He explained that a machine was starting to fall off of a forklift, and that as he was pushing up on it, he heard a pop in his knee, and that it swelled up so large that he could not get his pants on. Such a statement from the veteran himself is found to provide highly probative evidence against his own claim. A statement from the veteran's wife, received in May 2007, asserts that she married the veteran in 1952, and that the veteran was injured during service when a rope got twisted around his leg. She stated that at the time, she feared that he might lose his leg. She further stated that a doctor (identified herein as "Doctor A") had told her that this injury injured an artery in the veteran's leg, and that Doctor A had written a letter to VA in 1990 to this effect. The Board has determined that the claim must be denied. There is no evidence in the veteran's service medical records to show an injury to the left lower extremity, and his lower extremities were clinically evaluated as normal in his separation examination report from his first period of active duty, and upon entrance into his second period of active duty. There is no medical evidence to show treatment for left lower extremity symptoms following service for approximately 17 years (i.e., between separation from service in 1957, and 1975). This lengthy period without treatment is evidence that there has not been a continuity of symptomatology, and it weighs heavily against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). In February 1975, it is well-documented that the veteran sustained a left knee injury while performing employment duties. In this regard, the veteran's application for SSA benefits indicates that he reported that his left knee first bothered him in February 1975, and in his SSA benefits application, he provided a detailed account of his on-the-job injury. Medical records dated in 1975, and shortly thereafter, also contain many notations of an on-the-job injury in 1975. Furthermore, there is no competent evidence showing that the veteran's above-the-knee amputation, or any etiologically-related disease process or injury, is related to his service. Finally, there is no competent evidence to show that left knee arthritis is related to his above-the-knee amputation (in fact, the veteran has argued that his arthritis was unrelated), and even assuming arguendo that there was, there is no competent evidence to show that left knee arthritis was manifest to a compensable degree within one year of separation from service. See 38 C.F.R. §§ 3.307, 3.309. The Board must find that the post-service medical record provides what only can be called overwhelming evidence against the veteran's claim. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and that the claim must be denied. With respect to the veteran's own contentions, and the lay statements, a layperson is generally not capable of opining on matters requiring medical knowledge. Bostain v. West, 11 Vet. App. 124, 127 (1998) citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The issue on appeal is based on the contention that the veteran's above-the-knee amputation, left lower extremity, was caused by service, which ended in 1957, more than 50 years ago. In this case, while the veteran may be competent to report that he perceived left lower extremity symptoms during service, when the veteran's service medical records (which show no treatment for left knee symptoms, and no diagnosis of a left knee disorder), and his post-service medical records are considered (which indicate that the veteran sustained a left knee injury at work in 1975, that the earliest relevant evidence is dated no earlier than 1975, and which do not contain competent credible evidence of a nexus between the claimed condition and the veteran's service), the Board finds that the medical evidence outweighs the veteran's contentions that the claimed condition is related to his service. Duties to Notify and Assist The Board finds that VA has satisfied its duties to the veteran under the Veterans Claims Assistance Act of 2000 (VCAA). A VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should "give us everything you've got pertaining to your claim(s)." This "fourth element" of the notice requirement comes from the language of 38 C.F.R. § 3.159(b)(1). Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112 (2004). VA has made all reasonable efforts to assist the veteran in the development of his claim, has notified him of the information and evidence necessary to substantiate the claim, and has fully disclosed the government's duties to assist him. In letters, dated in April 2003, the veteran was notified of the information and evidence needed to substantiate and complete the claim. The VCAA notice complied with the requirement that the notice must precede the adjudication. Mayfield v. Nicholson (Mayfield II), 444 F.3d 1328 (Fed. Cir. 2006); aff'd Mayfield v. Nicholson, No. 02-1077 (U.S. Vet. App. Dec. 21, 2006). During the pendency of this appeal, the Court further redefined the requirements of the VCAA to include notice that a disability rating and an effective date for award of benefits would be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). No further notice is needed as to any disability rating or effective date matters. The veteran was afforded sufficient notice in March 2006, and in any event, as the claim has been denied, any questions as to the disability rating or the appropriate effective date to be assigned are moot. Therefore, VA's duty to notify the appellant has been satisfied, and no prejudice to the veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced thereby). The Board further finds that VA has complied with the VCAA's duty to assist by aiding the veteran in obtaining evidence. It appears that all known and available records relevant to the issue on appeal have been obtained and are associated with the veteran's claims file. The RO has obtained the veteran's service medical records, as well as VA and non-VA medical records, and records from the Social Security Administration. The veteran has not been afforded an examination, and an etiological opinion has not been obtained. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. In this case, the service medical records do not show that he received any treatment for left knee symptoms, or that he was ever diagnosed with a left knee disorder. His post-service medical records show that the earliest relevant evidence is dated no earlier than February 1975, at which time the veteran sustained a left knee injury at work. The veteran is shown to have a complex medical history that includes heart disease, and peripheral vascular disease. He was involved in a motor vehicle accident in 2003, and as a result of contusions from the motor vehicle accident, he was taken off of anticoagulants. There is evidence that the claimed condition is related to the cessation of this medication. In addition, the claims file does not contain competent credible evidence of a nexus between the claimed condition and the veteran's service. Simply stated, the service and post-service medical record weighs against the claim that there is a connection between service and the veteran's above-the-knee amputation, left lower extremity. Given the foregoing, the Board finds that the standards of McLendon have not been met. See also 38 C.F.R. § 3.159(c)(4) (2007); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). The Board finds that the service and post service medical record provides evidence against this claim. The Board therefore concludes that a decision on the merits at this time does not violate the VCAA, nor prejudice the appellant under Bernard v. Brown, 4 Vet. App. 384 (1993). Based on the foregoing, the Board finds that the veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER Service connection for a left above-the-knee amputation, left lower extremity, is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs