Citation Nr: 0812163 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 03-36 387 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for bilateral hip disability. 2. Entitlement to service connection for left ankle disability. 3. Entitlement to service connection for left hand disability. 4. Entitlement to service connection for left knee disability. 5. Entitlement to service connection for back disability. 6. Entitlement to service connection for hemorrhoids. REPRESENTATION Appellant represented by: Virginia Department of Veterans Affairs ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The veteran had active military service from February 1981 to December 1984. According to his DD Form 214, he had an additional three years, six months and 28 days of active service. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The record reflects that the veteran, in January 2005, failed--without explanation, to report for his requested hearing before a Veterans Law Judge in Washington, DC. His request for a Board hearing is therefore considered withdrawn. See 38 C.F.R. § 20.702(d) (2007). In March 2005, the Board remanded the case to the RO, via the Appeals Management Center (AMC), in Washington, DC, for additional development. The RO completed the additional development as directed, continued to deny the claims, and returned the case to the Board for further appellate review. FINDINGS OF FACT 1. The preponderance of the probative evidence indicates that a bilateral hip disorder is not related to an in-service disease or injury. 2. The preponderance of the probative evidence indicates that a left ankle disorder is not related to an in-service disease or injury. 3. The preponderance of the probative evidence indicates that a left hand disorder is not related to an in-service disease or injury. 4. The preponderance of the probative evidence indicates that a left knee disorder is not related to an in-service disease or injury. 5. The preponderance of the probative evidence indicates that a back disorder is not related to an in-service disease or injury. 6. The preponderance of the probative evidence indicates that hemorrhoids are not related to an in-service disease or injury. CONCLUSIONS OF LAW 1. A bilateral hip disorder was not incurred in or aggravated by active service, nor may arthritis be presumed to have been incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309(a) (2007). 2. A left ankle disorder was not incurred in or aggravated by active service, nor may arthritis be presumed to have been incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309(a). 3. A left hand disorder was not incurred in or aggravated by active service, nor may arthritis be presumed to have been incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309(a). 4. A left knee disorder was not incurred in or aggravated by active service, nor may arthritis be presumed to have been incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309(a). 5. A back disorder was not incurred in or aggravated by active service, nor may arthritis be presumed to have been incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309(a). 6. Hemorrhoids were not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The requirements of the VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126, have been met. There is no issue as to providing an appropriate application form or completeness of the application. A December 2002 RO letter informed the veteran of VA's duty to assist him and how his and VA's responsibilities were apportioned. Pursuant to the remand, a March 2005 RO letter notified the veteran of the information and evidence needed to substantiate and complete his claims, to include notice of what part of that evidence is to be provided by the veteran, notice of what part VA will attempt to obtain, and the need to submit all pertinent evidence in his possession. A September 2006 RO letter informed him how disability evaluations and effective dates are determined in the event service connection is granted. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has fulfilled its duty to assist the veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. While the veteran did not receive full notice prior to the initial decision, after pertinent notice was provided, he was afforded a meaningful opportunity to participate in the adjudication of the claims, and the claims were readjudicated, as shown in the April 2007 Supplemental Statement of the Case. He was provided the opportunity to present pertinent evidence and testimony. In sum, there is no evidence of any VA error in notifying or assisting the appellant that reasonably affects the fairness of this adjudication, and the evidence clearly and convincingly rebuts any suggestion that the appellant was prejudiced. Governing Law and Regulation Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Further, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West , 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Analysis The veteran was afforded VA examinations for all of his claimed disorders. Following a comprehensive review of the claims file and examination of the veteran, the examiner determined that there were no current disorders of the hips, left ankle, left hand; or left knee; no hemorrhoidal residuals, and that the veteran's current lumbar degenerative joint disease is secondary to post-service back injuries. As set forth below, the examiner's findings are fully supported by the probative evidence of record. The service medical records note the veteran was an aircrew member during his active service, and he was able to maintain that status, including the physical requirements, until his separation from active service, notwithstanding his receipt of treatment for acute and transitory episodes related to his joints. In this respect, the record shows the following pertinent observations. Hips. A February 1984 entry notes the veteran's complaints of and treatment of right hip pain that radiated to his ankle. Examination revealed some tenderness over the right lateral hip and pain with right lateral rotation. The assessment was inflammation of the right hip joint. It was treated with aspirin and the suggestion that the veteran practice better posture. Service medical records are negative for any subsequent entries of complaints, findings, or treatment for hip-related complaints. Left ankle. The veteran sustained a left ankle sprain in January 1979 when he stepped on a ladder. X-rays showed no abnormality. He was treated with ice and an Ace bandage. He injured the ankle again in December 1982 while walking downhill. The examiner noted that X-rays were negative for evidence of a fracture. It was diagnosed as a sprain and treated with ice, an Ace wrap, and instructions to elevate it. At the January 1983 follow-up, examination revealed good range of motion and no edema. The assessment was a resolved sprain. Service medical records are negative for any subsequent entries of complaints, findings, or treatment for left ankle-related complaints. Left hand. A July 1980 entry note the veteran's complaints of pain in the first digit of the left hand after having fallen off of a swing. Examination revealed pain and tenderness at the metacarpophalengeal joint with moderately decreased range of motion on flexion. X-rays were negative for a fracture. The examiner assessed a joint sprain. Service medical records are otherwise negative for any subsequent entries of complaints, findings, or treatment for left hand-related complaints. Back. The veteran told the examiner at the October 2006 VA examination that he injured his back in 1981 when he fell approximately one and one-half feet from an aircraft and strained his low back and ankles. The veteran stated he was treated and X-rayed, but did not know the results. Service medical records are negative for any entries related to complaints, findings, or treatment for back-related complaints secondary to a fall. They are also negative for an X-ray examination report of back. A November 1980 service medical record entry notes tenderness over the left costovetebral angle, but that was related to a suspected urinary tract infection. Hemorrhoids. The January 1977 Report of Examination For the veteran's initial enlistment in the Air Force notes a prior medical history of hemorrhoids. His anus and rectum, however, were assessed as normal. The veteran experienced flare-ups during his second tour in July 1982. In August 1982, he underwent excision of anal condylomata. Left knee. The service medical records are completely negative for any entries related to complaints, findings, or treatment for a left knee disorder. As noted above, the service medical records note no chronic residuals. An August 1983 Flight Medicine Clinic report notes accomplishment of the veteran's periodic physical examination, and no abnormalities are noted. An August 1984 Physical Profile Report notes the veteran's profile as "1" in all categories, and found that he had the physical stamina to endure long periods of standing, and that he had no disqualifying defects. Following his separation from active service, the veteran enlisted in the Air Force Reserve. He denied any pertinent medical history on his November 1985 Report Of Medical History for his enlistment examination. The November 1985 Report Of Examination For Enlistment notes that all areas were assessed as normal, and he was deemed physically fit for duty in the reserve. There is no evidence of any complaints or treatment for arthritis in any pertinent joint within one year of separation from active duty service. The private records associated with the veteran's award of benefits administered by the Social Security Administration note a post-service left knee menisectomy in 1996. The records are silent, however, as to when or why he underwent the procedure. An October 2000 examination report notes that examination of the hips and knees revealed them as normal. In September 1996, the appellant was seen by A.T. Shukla, M.D. He reported a two year history of back pain. The veteran denied a history of incurring any specific injury, but reported a history of working for years lifting heavy furniture. The veteran's most significant post-service events, however, pertain to two on-the-job back injuries in 1998 and 1999 after moving a welding machine, and after slipping and falling. The August 1999 records of Mercy Medical Center note a finding of a herniated lumbar disc at L4-L5. None of the veteran's private records note any comment or opinion of a provider that the etiology of the veteran's low back pathology is other than his injuries in 1998 and 1999. A December 2006 VA addendum notes the examiner's reiteration that his October 2006 examination found no left hand, left knee, or left ankle pathology. The examiner noted the absence of pertinent service medical records entries, a normal VA X-ray of the left hand in 2001, and the 2006 X-ray that showed an osseous defect. The examiner noted that it was obvious the veteran sustained a fracture between 2001 and 2006, but his examination revealed no current pathology. The examiner also noted that he found no current left ankle pathology, and that it was unlikely that any changes noted on current X-rays were related to the sprains he was treated for in service. The December 2006 addendum also notes that examination revealed no current pathology of the left knee, and that there was no relationship between the 1996 arthroscopic surgery and the veteran's active service. The October 2006 rectal examination revealed no evidence of colostomy, edema, fecal leakage, or fissures. External sphincter tone was normal, and there were no rectal masses or hemorrhoids. The examiner diagnosed no rectal or anus pathology present. Congress specifically limits entitlement for service- connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. § 1110 (formerly § 310). In the absence of proof of present disability there can be no valid claim. See Sanchez- Benitez v. West, 13 Vet. App. 282, 285 (1999) ("[P]ain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted."). In the absence of any competent evidence of currently diagnosed disorders, there is no basis to award service connection for bilateral hip, left ankle, left hand, or hemorrhoid disabilities. As noted above, the incidents noted in the service medical records were shown to be acute and transitory events that resolved without any chronic residuals. 38 C.F.R. § 3.303. As noted, there is no documentary corroboration of the veteran's claimed treatment for a back strain while in service. Moreover, following review of the claims file and examination of the veteran, the examiner opined that it was unlikely that the veteran's current lumbar degenerative joint disease is due to the mild back strain he reportedly sustained in service. Instead, his current low back disorder is most likely due to the injuries he sustained in 1997 and 1998. There is no competent evidence to the contrary. Thus, the preponderance of the probative evidence is against the veteran's back claim on both a direct and presumptive basis. 38 C.F.R. §§ 3.303, 3.307, 3.309(a). In reaching this decision the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against the veteran's claims, however, the doctrine is not for application. Schoolman v. West, 12 Vet. App. 307, 311 (1999). The benefits sought on appeal are denied. ORDER Entitlement to service connection for bilateral hip disability is denied. Entitlement to service connection for left ankle disability is denied. Entitlement to service connection for left hand disability is denied. Entitlement to service connection for left knee disability is denied. Entitlement to service connection for back disability is denied. Entitlement to service connection for hemorrhoids is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs