Citation Nr: 0814112 Decision Date: 04/29/08 Archive Date: 05/08/08 DOCKET NO. 02-05 956 ) DATE ) ) On appeal from the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a right shoulder disability. 2. Entitlement to service connection for a right hip disability. 3. Entitlement to service connection for a right knee disability. 4. Entitlement to service connection for a right ankle disability. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Thomas A. Pluta, Counsel INTRODUCTION The veteran had active service from January 1953 to January 1956. This appeal to the Board of Veterans Appeals (Board) arises from a November 2001 rating action that denied service connection for right shoulder, hip, knee, and ankle disabilities. By decision of August 2002, the Board remanded this case to the RO for due process development. In May 2003, the veteran testified at a Board hearing before the undersigned Veterans Law Judge at the RO. Be decision of November 2003, the Board denied service connection for a right shoulder, hip, knee, and ankle disabilities. The veteran appealed the denials to the U.S. Court of Appeals for Veterans Claims (Court). By April 2005 Order, the Court vacated the Board's November 2003 decision and remanded the matters to the Board for additional development and readjudication consistent therewith. By decision of May 2006, the Board remanded this case to the RO for further development of the evidence and for due process development. The Board's decision on the issues of service connection for right hip, knee, and ankle disabilities is set forth below. The issue of service connection for a right shoulder disability is addressed in the REMAND section of this decision following the ORDER, and is being remanded to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claims for service connection for right hip, knee, and ankle disabilities has, to the extent possible, been accomplished. 2. A right hip disability was not shown present in service or for many years thereafter, and the competent evidence establishes no nexus between any such current disability and the veteran's military service or any incident thereof. 3. A right knee disability was not shown present in service or for many years thereafter, and the competent evidence establishes no nexus between any such current disability and the veteran's military service or any incident thereof. 4. A right ankle disability was not shown present in service, and is not currently objectively demonstrated. CONCLUSIONS OF LAW 1. The criteria for service connection for a right hip disability are not met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2007). 2. The criteria for service connection for a right knee disability are not met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2007). 3. The criteria for service connection for a right ankle disability are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist In November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002). To implement the provisions of the law, the VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2006). The VCAA and its implementing regulations essentially include, upon the submission of a substantially-complete application for benefits, an enhanced duty on the part of the VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify him what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of the VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Considering the record in light of the above criteria, the Board finds that all notification and development action needed to render a fair decision on the claims for service connection for right hip, knee, and ankle disabilities on appeal has, to the extent possible, been accomplished. March 2001 pre-rating and August 2006 post-rating RO letters informed the veteran and his attorney of the VA's responsibilities to notify and assist him in his claims, and what was needed to establish entitlement to service connection (evidence showing an injury or disease that began in or was made worse by his military service, or that there was an event in service that caused an injury or disease). Thereafter, he was afforded opportunities to respond. The Board thus finds that the veteran has received sufficient notice of the information and evidence needed to support his claims, and has been provided ample opportunity to submit such information and evidence. Additionally, those RO letters provided notice that the VA would make reasonable efforts to help the veteran get evidence necessary to support his claims, such as medical records (including private medical records), if he gave it enough information, and if needed, authorization to obtain them. Those letters further specified what records the VA was responsible for obtaining, to include Federal records, and the type of records that the VA would make reasonable efforts to get, and the 2006 letter requested the veteran to furnish any evidence that he had in his possession that pertained to his claims. The Board thus finds that those letters collectively satisfy the statutory and regulatory requirement that the VA notify a claimant what evidence, if any, will be obtained by him and what evidence will be retrieved by the VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In the decision of Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that proper VCAA notice should notify a veteran of: (1) the evidence that is needed to substantiate a claim; (2) the evidence, if any, to be obtained by the VA; (3) the evidence, if any, to be provided by him; and (4) a request by the VA that the claimant provide any evidence in his possession that pertains to the claim. As indicated above, all 4 content of notice requirements have been met in this appeal. Pelegrini also held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided at the time that, or immediately after, the VA Secretary receives a complete or substantially complete application for VA-administered benefits. In that case, the Court determined that the VA had failed to demonstrate that a lack of such pre-adjudication notice was not prejudicial to the claimant. In the matters now before the Board, documents meeting the VCAA's notice requirements were furnished to the veteran both before and after the November 2001 rating action on appeal. The Board thus finds that the delay in issuing the full 38 U.S.C.A. § 5103(a) notice was not prejudicial to the veteran because it did not affect the essential fairness of the adjudication, in that his claims were fully developed and readjudicated after full notice was provided, as reflected in the October and December 2007 Supplemental Statements of the Case (SSOCs). See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir.2006). As indicated above, the veteran has been notified of what was needed to substantiate his claims, and afforded numerous opportunities to present information and/or evidence in support thereof. As a result of RO development and the Board remands, comprehensive documentation, identified below, has been associated with the claims folder and considered in connection with the veteran's appeal. Hence, the Board finds that any failure on the part of the VA in not completely fulfilling VCAA notice requirements prior to the RO's initial adjudication of the claims is harmless. See ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998); Cf. 38 C.F.R. § 20.1102 (2005). In March 2006, during the pendency of this appeal, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all 5 elements of a service connection claim (veteran status, the existence of a disability, a connection between the veteran's service and that disability, the degree of disability, and the effective date pertaining thereto). In this case, the Board finds that the veteran was furnished notice of the latter requirements in the August 2006 RO letter. Additionally, the Board finds that all necessary development on the claims currently under consideration has, to the extent possible, been accomplished. The RO, on its own initiative and pursuant to the Board remands and Court Order, has made reasonable and appropriate efforts to assist the appellant in obtaining all evidence necessary to substantiate his claims, to include obtaining all available service and post-service VA and private medical records through 2007, and a copy of the July 1982 Social Security Administration decision awarding the veteran disability benefits, together with medical records underlying that determination. In this regard, the Board notes that some service medical records appear to be unavailable, presumably having been destroyed in a fire years ago at the National Personnel Records Center (NPRC). By letters of May 2002 and August 2006, the RO notified the veteran of alternate sources of records and forms of evidence to support his claims. However, the RO's exhaustive attempts to search alternate and secondary military record sources were unsuccessful. In October 2006, the NPRC stated that no Surgeon General's Office records were available for U.S. Marine Corps personnel. The U.S. Marine Corps University Archive in December 2006, the National Archives and Records Administration (NARA) in April 2007, and the NARA Modern Military Records Branch in June 2007 all stated that they had no records pertaining to the veteran. Significantly, the veteran has not identified, nor does the record otherwise indicate, any existing, pertinent evidence, in addition to that noted above, that has not been obtained. In May 2001, the veteran stated that he had no additional evidence to submit in connection with his claims. In January 2008, the veteran's attorney stated that she had no additional information submit. The record also presents no basis for further development to create any additional evidence to be considered in connection with the matters currently under consideration. At the May 2003 Board hearing, the veteran testified that he never had any physical examinations for employment. Under these circumstances, the Board finds that the veteran is not prejudiced by appellate consideration of the claims on appeal at this juncture, without directing or accomplishing any additional notification and/or development action. II. Analysis Under the applicable criteria, 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. Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection also may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served continuously for 90 days or more during a period of war or during peacetime service after 31 December 1946 and arthritis becomes manifest to a degree of 10% within 1 year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of it 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. The veteran contends that he injured his right hip, knee, and ankle in service and that his current disabilities are the result thereof. The available service records are completely negative for findings of any right hip, knee, or ankle disability. A review of the available service records discloses that the lower extremities were normal on January 1956 separation examination. The first objective demonstration of a right knee disability was that for which the veteran underwent a lateral arthroscopy and arthrotomy at the Lutheran General Hospital in December 1977, over 21 years post service, at which time the veteran gave a history of at least 5 knee injuries during the past 3 to 20 years - all of which the Board notes would have been after separation from service in January 1956. However, there was no history relating the knee disability to military service or any incident thereof in the 1977 medical report or in numerous subsequent medical records through 2001. In July 1978 and on several occasions in 1979, R. M., M.D., treated the veteran for painful right knee arthritis. January 1979 examination by R. F., Jr., M.D., showed degenerative joint disease of the right patellofemoral joint. The veteran complained of right knee pain on June 1979 examination by W. A., M.D. In October 1979, the veteran underwent a right knee patellectomy and quadriceps plasty at the Lutheran General Hospital. On April 1981 examination, J. H., M.D., diagnosed absence of the right patella and chondromalacia and degenerative changes of the right distal femur. On March 1983 examination, P. F., M.D., noted the veteran's history of right knee surgery and patellectomy in 1977 and 1979, and the impressions included right leg weakness as a consequence of possible internal derangement with patellectomy. In May 1984, Dr. P. F. noted the veteran's complaints including lower extremity pain, but examination was negative for findings or diagnoses of any lower extremity disability. The June 2001 office notes of J. N., M.D., noted severe right knee degenerative arthritis. In July 2001, the veteran underwent aright knee arthroplasty at the Elmhurst Memorial Hospital. However, in no instance was there a history relating the right knee disability to military service or any incident thereof. The veteran complained of right hip pain on April 1979 examination by Dr. R. M., but pelvic X-rays revealed no marked pathology. The veteran complained of lower extremity pain when seen by Dr. P. F. in May 1984., but examination was negative for any lower extremity disability. The first objective demonstration of a right hip disability was the bursitis noted in Dr. J. N.'s office notes of June 2001, over 45 years post service. However, there was no history relating the hip disability to military service or any incident thereof in the 2001 medical report or in an April 2002 VA X-ray report which revealed right hip degenerative changes. No right ankle disability has been objectively demonstrated in the post-service years. Although the veteran complained of right ankle pain when seen by Dr. R. M. in April 1979, examination showed no findings pertaining to the ankle. The veteran's complaints included lower extremity pain when seen by Dr. P. F. in May 1984, but examination was negative for any lower extremity disability. As indicated above, Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. § 1110. Where, as here, the competent evidence consisting of the service and post-service medical records does not show the existence of a chronic right ankle disability for which service connection is sought (and hence, no evidence of a nexus between any such disability and service), there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As the competent medical evidence of record does not show the current existence of a chronic right ankle disability, the Board finds that service connection is not warranted. In the absence of competent and persuasive (medical) evidence establishing a nexus between any current right hip or knee disability first manifested many years post service and the veteran's military service or any incident thereof, the Board finds no basis upon which to grant service connection therefor. In addition to the medical evidence, the Board has considered the veteran's assertions and testimony; however, such does not provide any basis for allowance of the claims. While the veteran may believe that he currently has right hip, knee, and ankle disabilities that are related to his military service, there is no medical support for such contention. The Board emphasizes that the appellant is competent to offer evidence as to facts within his personal knowledge, such as his own symptoms. However, medical questions of diagnosis and etiology are within the province of trained medical professionals. Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As a layman without the appropriate medical training or expertise, the appellant simply is not competent to render an opinion on such medical matters. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) (a layman is generally not capable of opining on matters requiring medical knowledge). Hence, his assertions in this regard have no probative value. Under these circumstances, the Board concludes that service connection for right hip, knee, and ankle disabilities must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for a right hip disability is denied Service connection for a right knee disability is denied. Service connection for a right ankle disability is denied. REMAND Considering the record in light of the duties imposed by the VCAA and its implementing regulations, and the Court's April 2005 Order, the Board finds that all notice and development action needed to fairly adjudicate the claim for service connection for a right shoulder disability remaining on appeal has not been accomplished. The service medical records show that the veteran was seen for shoulder trouble in October 1953, and right clavicle X- rays revealed no abnormality. The upper extremities were normal on January 1956 separation examination. Post service, magnetic resonance imaging (MRI) at the Parkside Magnetic Resonance Center in December 1997 and December 1998 revealed right shoulder degenerative/arthritic changes with a rotator cuff tear, and the veteran underwent repairs of right shoulder rotator cuff tears at the Lutheran General Hospital in February and December 1998. January 2000 MRI at the Elmhurst Memorial Hospital revealed a complete tear of the posterior right shoulder distal supraspinatus tendon. In May 2000, the veteran underwent a right shoulder acromioplasty and rotator cuff repair at Elmhurst. In August 2002, the veteran underwent repair of the long head of the right biceps tendon at Elmhurst. October 2003 right shoulder MRI at Elmhurst revealed multiple tears with retraction of the rotator cuff tendon and displacement of the bicipital tendon out of the groove. In November 2003, the veteran underwent right shoulder rotator cuff repair at the Hinsdale Surgical Center. In April 2004, the veteran underwent a right shoulder hemiarthroplasty at the AHS Midwest Region Hinsdale Hospital. In September 2007, the veteran's right shoulder was examined by a physician's assistant (P.A.) at a VA medical facility, but appellate review of the examination report indicates that the P. A. was unable to furnish an adequate medical opinion as to the relationship, if any, between the veteran's inservice right shoulder problem and his post-service right shoulder disability. The Board thus finds that the RO should arrange for the veteran to undergo another VA orthopedic examination by a physician to obtain information needed to equitably adjudicate the claim on appeal. The veteran is hereby advised that failure to report for the scheduled examination, without good cause, may result in denial of the claim. See 38 C.F.R. § 3.655 (2007). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Id. If the veteran does not report for the scheduled examination, the RO must obtain and associate with the claims folder a copy of the notice of the date and time of the examination sent to him by the pertinent VA medical facility. The action identified herein is consistent with the duties imposed by the VCAA. However, identification of specific action requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the action requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim remaining on appeal. Accordingly, this matter is hereby REMANDED to the RO via the AMC for the following action: 1. The RO should contact the veteran at his address of record and arrange for him to undergo a VA orthopedic examination of his right shoulder by a physician. The entire claims folder must be made available to the physician designated to examine the veteran, and the examination report should include discussion of his documented medical history and assertions. All indicated studies and tests, including X-rays, should be accomplished, and all clinical findings pertaining to the right shoulder should be reported in detail and correlated to a specific diagnosis. The examining physician should review the service and post-service medical records and render an opinion for the record as to whether it is at least as likely as not (i.e., there is at least a 50% probability) that any currently-diagnosed right shoulder disability had its onset in service. In arriving at this opinion, the examiner should review and address the 1953 and 1956 service medical records, and post-service medical records from 1997 to 2007. The doctor should set forth all examination findings, together with the complete rationale for the comments and opinions expressed, in a printed (typewritten) report. 2. If the veteran fails to report for the scheduled examination, the RO must obtain and associate with the claims folder a copy of the notice of the date and time of the examination sent to him by the pertinent VA medical facility. 3. To help avoid future Remand, the RO must ensure that all requested development action has been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. After completing the requested action, and any additional notification and/or development deemed warranted, the RO should readjudicate the claim remaining on appeal in light of all pertinent evidence and legal authority. If the veteran fails to report for the scheduled examination, the RO should apply the provisions of 38 C.F.R. § 3.655(b), as appropriate. 5. If the benefit sought on appeal remains denied, the RO must furnish the veteran and his attorney an appropriate SSOC that includes clear reasons and bases for all determinations, and affords him the appropriate time period for response before the claims folder is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The veteran needs take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate timeframe. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs