Citation Nr: 0812518 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 03-05 748 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a right knee disability, to include as secondary to a service-connected right ankle disability. 2. Entitlement to service connection for a right hip disability, to include as secondary to a service-connected right ankle disability. 3. Entitlement to service connection for a bilateral hand disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Bush, Associate Counsel INTRODUCTION The veteran served on active duty in the United States Army from September 1950 to June 1952 and from December 1953 to September 1957. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a June 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri (the RO) which denied the veteran's claims of entitlement to service connection for right knee, right hip and bilateral hand disabilities. This case was remanded by the Board in October 2004 for additional evidentiary and procedural development, specifically to obtain a VA medical nexus opinion and provide adequate notice pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). The case was then remanded a second time in October 2006 for failure to comply with the Board's prior remand instructions as to the requested VA examination. A second VA examination and opinion was provided in December 2006. In August 2007 the VA Appeals Management Center (AMC) issued a supplemental statement of the case (SSOC) which continued to deny the veteran's claims of entitlement to service connection for right knee, right hip and bilateral hand disabilities. The veteran's claims folder has been returned to the Board for further appellate proceedings. FINDINGS OF FACT 1. The competent medical evidence of record does not support a finding that a current right knee disability exists. 2. The competent medical evidence of record does not indicate that a nexus exists between the veteran's diagnosed right hip disability and his military service. 3. The competent medical evidence of record does not indicate that a medical nexus exists between the veteran's diagnosed right hip disability and his service-connected right ankle disability. 4. The competent medical evidence of record does not indicate that a medical nexus exists between the veteran's bilateral hand disability and his military service, to include a claimed cold injury. CONCLUSIONS OF LAW 1. A right knee disability was not incurred in or aggravated by the veteran's active service, nor is such secondary to a service-connected disability. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2007). 2. A right hip disability was not incurred in or aggravated by the veteran's active service, and such may not be so presumed. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). 3. A right hip disability is not proximately due to nor is the result of the veteran's service-connected right ankle disability. 38 C.F.R. §3.310 (2007). 4. A bilateral hand disability was not incurred in or aggravated by the veteran's active service, and such may not be so presumed. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran seeks service connection for right knee and right hip disabilities, which he claims are secondary to his service-connected right ankle disability. He also seeks service connection for a disability of the bilateral hands. In the interest of clarity, the Board will first discuss certain preliminary matters. The issues on appeal will then be analyzed and a decision rendered. Stegall considerations As was alluded to in the Introduction, the Board remanded this case in October 2004. In essence, the Board instructed the agency of original jurisdiction (AOJ) to provide adequate notice pursuant to the VCAA and to obtain a medical nexus opinion. The AOJ was then to readjudicate the claims. The veteran was sent a VCAA letter in November 2004 and was provided with a VA examination in June 2005. After determining that the June 2005 examination report did not comply with the November 2004 remand instructions (in that the examiner did not indicate claims file review or opine as to the veteran's theory of secondary service connection), the Board remanded the case again in October 2006. A second VA examination and nexus opinion was obtained in December 2006. After this development was completed, the AMC readjudicated the claims in the August 2007 SSOC. Thus, all of the Board's remand instructions have now been complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance]. The VCAA The Board has given consideration to the VCAA, which includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate claims for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). The Board has carefully considered the provisions of the VCAA and the implementing regulations in light of the record on appeal, and for reasons expressed immediately below finds that the development of the issues has proceeded in accordance with the provisions of the law and regulations. Standard of review In general, after the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2007). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Notice The VCAA requires VA to notify the claimant and the claimant's representative of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claims. As part of the notice, VA is to specifically inform the claimant and the claimant's representative of which portion of the evidence is to be provided by the claimant and which part VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002) [a letter from VA to an appellant describing evidence potentially helpful to the appellant but not mentioning who is responsible for obtaining such evidence did not meet the standard erected by the VCAA]. After having carefully reviewed the record, the Board has concluded that the notice requirements of the VCAA have been satisfied with respect to the issues on appeal. The Board observes that the veteran was informed of the relevant law and regulations pertaining to his service connection claim in a letter from the RO dated November 30, 2001, which informed the veteran that the evidence must demonstrate "a relationship between your disability and an injury, disease or event in service." The November 2001 letter also informed the veteran that presumptive service connection was available for certain chronic diseases which became manifest "within a particular period of time." Finally, the veteran was informed of the evidentiary requirements of secondary service connection in a letter from the AMC [issued subsequent to the October 2004 remand] dated November 18, 2004, which informed him that the evidence must show "your service-connected disability either caused or aggravated your additional disability." Crucially, the veteran was informed of VA's duty to assist him in the development of his claims and advised of the provisions relating to the VCAA in the above-referenced November 2004 letter. Specifically, the veteran was advised in the November 2004 letter that VA is responsible for obtaining records from any Federal agency, to include military records, outpatient records from VA treatment facilities and records from the Social Security Administration. The letter further indicated that VA examinations would be scheduled if necessary to adjudicate his claims. With respect to private treatment records, the November 2004 letter informed the veteran that VA would make reasonable efforts to obtain relevant private records. Copies of VA Form 21- 4142, Authorization and Consent to Release Information, were included with the November 2004 letter [as well as the November 2001 letter], and the veteran was asked to complete this release for each private healthcare provider so that VA could obtain these records on his behalf. The November 2004 letter further emphasized: "If the evidence is not in your possession, you must give us enough information about the evidence so that we can request it from the person or agency that has it. If the holder of the evidence declines to give it to us, asks for a fee to provide it, or VA otherwise cannot get the evidence, we will notify you. It is your responsibility to make sure that we receive all requested records that are not in the possession of a Federal department or agency" [Emphasis as in original]. The November 2004 VCAA letter also specifically requested of the veteran: "If there is any other evidence or information that you think will support your claim[s], please let us know. If you have any evidence in your possession that pertains to your claim[s], please send it to us" [Emphasis as in original]. This request complies with the "give us everything you've got" requirement contained in 38 C.F.R. § 3.159 (b) in that the RO informed the veteran that he could submit or identify evidence other than what was specifically requested by the RO. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court observed that a claim of entitlement to service connection consists of five elements: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. Because a claim is comprised of five elements, the notice requirements of section 5103(a) apply generally to all five elements of that claim. Therefore, upon receipt of an application for a service connection claim, section 5103(a) and section 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 the elements of the claim. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The veteran was provided specific notice of the Dingess decision in a letter from the AMC dated October 24, 2006 which detailed the evidence considered in determining a disability rating, including "nature and symptoms of the condition; severity and duration of the symptoms; and impact of the condition and symptoms on employment." The veteran was also advised in the letter as to examples of evidence that would be pertinent to a disability rating, such as on- going treatment records, recent Social Security determinations and statements from employers as to job performance and time lost due to service-connected disabilities. With respect to effective date, the October 2006 letter instructed the veteran that two factors were relevant in determining effective dates of increased rating claims: when the claim was received; and when the evidence "shows a level of disability that supports a certain rating under the rating schedule or other applicable standards." The veteran was also advised in the letter as to examples of evidence that would be pertinent to an effective date determination, such as information about continuous treatment or when treatment began, service medical records the veteran may not have submitted and reports of treatment while attending training in the Guard or Reserve. Accordingly, the veteran has received proper notice as to disability rating and effective date pursuant to the Court's Dingess determination. The veteran was not provided complete notice of the VCAA prior to the initial adjudication of his claims in June 2002. The Board is of course aware of the Court's decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), which appears to stand for the proposition that VCAA notice must be sent prior to adjudication of an issue by the RO. Crucially, the veteran was provided with additional VCAA notice through the November 2004 VCAA letter and the October 2006 Dingess letter, and his claims were readjudicated in the August 2007 SSOC, after he was provided with the opportunity to submit evidence and argument in support of his claims and to respond to the VA notice. Thus, any VCAA notice deficiency has been rectified, and there is no prejudice to the veteran in proceeding to consider his claims on the merits. The veteran has pointed to no prejudice resulting from the timing of the VCAA notice. The Board further notes that the veteran's representative has not alleged that the veteran has received inadequate VCAA notice. The veteran is obviously aware of what is required of him and of VA. Because there is no indication that there exists any evidence which could be obtained which would have an effect on the outcome of this case, no further VCAA notice is necessary. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) [VCAA notice not required where there is no reasonable possibility that additional development will aid the veteran]. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate claims for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. The law provides that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claims. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2007). The Board finds that reasonable efforts have been made to assist the veteran in obtaining evidence necessary to substantiate his claims, and that there is no reasonable possibility that further assistance would aid in substantiating them. In particular, the RO has obtained reports of VA medical treatment of the veteran. He was also afforded VA examinations in November 2002, June 2005 and December 2006. The report of these examinations reflect that the examiners reviewed the veteran's past medical history, recorded his current complaints, conducted appropriate physical examinations and rendered appropriate diagnoses and opinions in accordance with the Board's remand instructions. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2007). The veteran has been accorded the opportunity to present evidence and argument in support of his claims. He has declined the option of a personal hearing. Accordingly, the Board will proceed to a decision. Relevant law and regulations Service connection - in general In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2007). For certain chronic disorders, including arthritis, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Secondary service connection Service connection may be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) (2006); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish service connection for a claimed disability on a secondary basis, there must be (1) medical evidence of a current disability; (2) a service-connected disability; and (3) medical evidence of a nexus between the service-connected disease or injury and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Combat status Pursuant to 38 U.S.C.A. § 1154(b) (West 2002), with respect to combat veterans, "[VA] shall accept as sufficient proof of service-connection . . . satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions and hardships of such service . . . Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary." See also 38 C.F.R. § 3.304(d) (2005). However, the Court has further held that 38 U.S.C.A. § 1154(b) can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to the current disorder. See Libertine v. Brown, 9 Vet. App. 521, 522-23 (1996). Section 1154(b) does not establish service connection for a combat veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service. A veteran must still generally establish his claim by competent medical evidence tending to show a current disability and a nexus between that disability and those service events. See Gregory v. Brown, 8 Vet. App. 563, 567 (1996). In Kessel v. West, 13 Vet. App. 9 (1999), the Court affirmed that the 38 U.S.C.A. § 1154(b) presumption only relates to the question of service incurrence, it does not relate to questions of whether the veteran has a current disability or whether there was a nexus between the in- service event and the current disability. Analysis The veteran seeks service connection for right knee and right hip disabilities, which he contends are related to his service-connected right ankle disability. See the July 2002 notice of disagreement. The veteran's representative has also made arguments for direct service connection for these claims. See a July 5, 2001 Statement in Support of Claim. He also seeks service connection for a bilateral hand disability, which he claims is related to a cold injury incurred while serving on active duty in Korea during the winter months of 1951 and 1952. See the February 2003 substantive appeal. The right knee claim Service connection presupposes a diagnosis of a current disability. See Rabideau v. Derwinski, 2 Vet. App. 141 (1992). A "current disability" means a disability shown by competent medical evidence to exist. See Chelte v. Brown, 10 Vet. App. 268 (1997). With respect to Hickson/Wallin element (1), there is no medical evidence that supports a conclusion that a right knee disability is currently present. Specifically, X-rays of the right knee completed in November 2002 and December 2006 were normal, and the December 2006 VA examiner went on to say that "there is nothing whatsoever on either x-ray or physical examination to substantiate [the veteran's] complaints of right knee pain." To the extent that the veteran is claiming that he has right knee pain, the Court has held that pain, 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. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). Moreover, to the extent that the veteran himself contends that he has a current right knee disability, it is now well- established that lay persons without medical training, such as the veteran, are not competent to comment on medical matters such as diagnosis. See Espiritu v. Derwinski, 2 Vet. App. 491, 494-5 (1992) see also 38 C.F.R. § 3.159 (a)(1), supra. Accordingly, the veteran's own statements offered in support of his right knee claim are not competent medical evidence and do not serve to establish the existence of a current disability. In short, no medical records suggest that a diagnosed right knee disability currently exists. In the absence of any currently diagnosed right knee disability, service connection may not be granted. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) [service connection cannot be granted if the claimed disability does not exist]. The veteran has claimed service connection for a right knee disability on both a direct and as secondary to a service- connected right ankle disability. In the absence of a currently diagnosed disability, both contentions fail. In any event, the Board notes that the December 2006 VA examiner specifically opined that the veteran's right knee pain was unrelated to military or his service-connected right ankle fracture, and there is no competent medical evidence to the contrary. The right hip and bilateral hand claims As was alluded to above, the veteran seeks service connection for a disability of the right hip on a direct basis and as secondary to his service-connected right ankle disability. He seeks service connection for a disability of both hands on a direct basis only. The board will first address the direct service connection claims, and then discuss the claim of secondary service connection for the right hip disability. (i.) Direct service connection As detailed above, in order to establish service connection for a claimed disorder on a direct basis, there must be (1) medical evidence of a current disability; (2) evidence of the in-service incurrence or aggravation of a disease or injury or evidence of a service-connected disability; and (3) medical evidence of a nexus between (1) and (2). See Hickson, supra. With respect to Hickson element (1), the Board finds that there is medical evidence of degenerative changes in the right hip and bilateral hands, as evidenced in the December 2006 VA examination report. Hickson element (1), current disability, has therefore been met for both of these claims. With respect to Hickson element (2), the Board finds that the veteran did engage in combat with an enemy within the meaning of 38 U.S.C.A. § 1154(b) (West 2002), as his DD 214 lists receipt of the Combat Infantryman Badge and the Purple Heart medal. Hickson element (2) is therefore satisfied. The Board also notes that degenerative changes in the right hip and bilateral hands were not present until March 1985 and September 1992 respectively, well beyond the period for presumptive service connection for arthritis. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). With respect to crucial Hickson element (3), medical nexus, however, the claims fail. The record contains the December 2006 VA medical examination report, in which the examiner found that: It is the opinion of this examiner that this gentleman's hand problems are probably of a degenerative nature only; there is nothing whatsoever to indicate that his hands were affected one way or the other. There is no reference to frost bite in the active duty medical records. The same examiner also opined in June 2005 that the veteran's bilateral hand and right hip arthritis was "totally unrelated to events which occurred while on active duty." The Board assigns these medical opinions great probative weight. They were provided by a medical professional who actually examined the veteran, as well as reviewed his VA claims folder. Moreover, the opinion is congruent with the veteran's medical history, which was pertinently negative for right hip or bilateral hand symptomatology for many years after service. There is no evidence to the contrary. To the extent that the veteran and his representative contend that his current degenerative arthritis of the hands and right hip are related to his military service, it is now well established that as lay persons without medical training, they are not competent to comment on medical matters such as date of onset or cause of a disability, or in the representative's case how medical professionals should weigh medical evidence in rendering opinions. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992); see also 38 C.F.R. § 3.159 (a)(1) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. The statements of the veteran and his representative offered in support of his claims are not competent medical evidence and do not serve to establish a medical nexus. The Board again observes that the combat presumption does not establish a medical nexus. See, e.g., Libertine, supra. Accordingly, Hickson element (3) has not been met, and the veteran's direct service connection claims fail on this basis. (ii.) Secondary service connection for the right hip Turning to the matter of secondary service connection for the right hip, as detailed above there is evidence that the veteran currently has right hip arthritis. Accordingly, Wallin element (1) is satisfied. With respect to Wallin element (2), a service-connected disability, the veteran is currently service-connected for residuals of a fracture of the distal right fibula. Wallin element (2) is accordingly satisfied. The Board observes in passing that the veteran is also service-connected for residuals of gunshot wound scars to the left thigh and right buttocks as well as residuals of a laceration to the left side of the face with scar. However, his contentions only concern the service-connected right ankle disability. Moreover, there is no competent medical evidence which suggests that any of those disabilities has caused or aggravated the right hip arthritis. With respect to crucial Wallin element (3), the question presented, i.e. the relationship, if any, between the veteran's right hip disability and his service-connected right ankle disability, is essentially medical in nature. The Board is prohibited from exercising its own independent judgment to resolve medical questions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). There is a medical opinion of record. The December 2006 VA examiner stated: "As far as the hip is concerned the patient has degenerative arthritis of both hips of equal magnitude. Therefore, there is no argument whatsoever that the unilateral ankle injury could produce bilateral hip problems." This opinion clearly discounts the possibility of secondary service connection, including based on aggravation. See Allen, supra. There is no competent medical evidence to the contrary. In his February 2003 substantive appeal, the veteran pointed to a statement of the November 2002 VA examiner that "it is possible that this patient's gait, which is broad-based and hesitating, might cause strain about the acetabular [hip] joint" in support of his right hip claim. However, this opinion is speculative and inconclusive, as is indicated by the use of the word "might". The Court has held on several occasions that medical evidence that is speculative, general or inconclusive in nature cannot support a claim. See generally Obert v. Brown, 5 Vet. App. 30, 33 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). The Board accords the November 2002 statement no weight of probative value. To the extent that the veteran himself believes that there is a medical nexus between his current right hip arthritis and his service-connected right ankle disability, it is now well established that lay persons without medical training, such as the veteran, are not competent to comment on medical matters such as cause of a disability. See Espiritu, supra. Accordingly, Wallin element (3) has not been met, and the veteran's claim fails on this basis. Conclusion In conclusion, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the veteran's claims of entitlement to service connection for right knee, bilateral hand and right hip disabilities, with the right knee and right hips considered on both a direct and a secondary basis. Therefore, contrary to the assertions of the veteran's representative, the benefit of the doubt doctrine is not for application because the evidence is not in relative equipoise. The benefits sought on appeal are accordingly denied. ORDER Service connection for a right knee disability, to include as secondary to service-connected right ankle disability, is denied. Service connection for a right hip disability, to include as secondary to service-connected right ankle disability, is denied. Service connection for a bilateral hand disability is denied. ____________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs