Citation Nr: 0814895 Decision Date: 05/06/08 Archive Date: 05/12/08 DOCKET NO. 05-20 727 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for bilateral carpal tunnel syndrome. 2. Entitlement to service connection for a left ankle disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Veteran and her spouse ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The veteran served on active duty from July 1975 to August 1976. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from a January 2005 rating decision, by the Waco, Texas, Regional Office (RO), which denied the veteran's claims of entitlement to service connection for bilateral carpal tunnel syndrome and service connection for a left ankle condition. The veteran and her spouse appeared and offered testimony at a hearing before a Decision Review Officer (DRO) in April 2005. In her substantive appeal (VA Form 9), received in June 2005, the veteran requested a hearing at the RO before a Veterans Law Judge (VLJ) of the Board. In a subsequent statement, however, dated July 15, 2005, she withdrew her request for a hearing. 38 U.S.C.A. § 20.704(e) (2007). The Board also notes that, by a rating action in October 2006, the RO granted service connection for dysthymic disorder and assigned a 10 percent disability rating effective October 21, 2004. A notice of disagreement with the rating assigned was received in December 2006. In March 2007, the RO increased the evaluation for the dysthymic disorder from 10 percent to 30 percent. A statement of the case was issued in April 2007. However, in a statement in support of claim (VA Form 21-4138), dated in July 2007, the veteran withdrew her appeal for a higher rating for dysthymic disorder. Therefore, that issue is not in appellate status, and will not be addressed by the Board at this time. See 38 U.S.C.A. §§ 7104, 7105 (West 2002 & Supp. 2007); 38 C.F.R. §§ 20.101, 20.200, 20.201, 20.202 (2007). The issue of entitlement to service connection for bilateral carpal tunnel syndrome is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT A left ankle disorder was not manifest during service; the veteran's current left ankle disorder is unrelated to service. CONCLUSION OF LAW A left ankle disorder was not incurred in or aggravated by service and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 5103(a), 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist. The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide; and to request that the claimant provide any evidence in the claimant's possession that pertains to the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The U.S. Court of Appeals for Veterans Claims has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in an SOC or Supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Court of Appeals for the Federal Circuit recently held that any error in a VCAA notice should be presumed prejudicial. VA bears the burden of rebutting the presumption, by showing that the essential fairness of the adjudication has not been affected because, for example, actual knowledge by the claimant cured the notice defect, a reasonable person would have understood what was needed, or the benefits sought cannot be granted as a matter of law. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). In this case, VA satisfied its duty to notify by means of letters dated in November 2004 and December 2004 from the RO to the veteran which was issued prior to the RO decision in January 2005. Those letters informed the veteran of what evidence was required to substantiate the claim and of herald VA's respective duties for obtaining evidence. The veteran was also asked to submit evidence and/or information in her possession to the RO. The Board finds that the content of the above-noted letters provided to the veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify and assist. She was provided an opportunity at that time to submit additional evidence. The veteran was afforded a personal hearing before a Decision Review officer at the RO in April 2005, during which she was informed of what the evidence must show to establish service connection for carpal tunnel syndrome and a left ankle disorder. In addition, the May 2005 SOC, and the December 2007 SSOC each provided the veteran with an additional 60 days to submit additional evidence. Thus, the Board finds that the purpose behind the notice requirement has been satisfied because the veteran has been afforded a meaningful opportunity to participate effectively in the processing of her claim. It also appears that all obtainable evidence identified by the veteran relative to her claim has been obtained and associated with the claims file, and that neither she nor her representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. It is therefore the Board's conclusion that the veteran has been provided with every opportunity to submit evidence and argument in support of her claim, and to respond to VA notice. As noted above, VCAA notification pre-dated adjudication of this claim. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The Board finds 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). In addition, to whatever extent the decision of the Court in Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006), requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date, the Board finds no violation of essential fairness to the veteran in proceeding with the present decision, since the veteran was informed of the provisions of Dingess in March 2006. VA has obtained service and post-service medical records. All known and available records relevant to the issue on appeal have been obtained and associated with the veteran's claims file; and the veteran has not contended otherwise. VA need not conduct an examination with respect to the claims decided herein because the information and evidence of record contains sufficient competent medical evidence to decide the claims. 38 C.F.R. § 3.159(c)(4). Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, 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. Simply stated, the standards of McLendon are not met in this case. There is no competent evidence of a left ankle disorder in service or of a nexus between a current left ankle disorder and service. Accordingly, we find that VA has satisfied its duty to assist the veteran in apprising her as to the evidence needed, and in obtaining evidence pertinent to her claim under the VCAA. Therefore, no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the veteran. The Court of Appeals for Veterans Claims has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Given the ample communications regarding the evidence necessary to establish service connection for a left ankle disorder, given that the veteran has offered testimony at a hearing before a DRO at the RO, given that she has been given that she has been provided all the criteria necessary for establishing service connection, and considering that the veteran is represented by a highly qualified veterans service organization, we find that any notice deficiencies are moot. See Conway v. Principi, 353 F.3d 1369, 1374 (2004). To that extent that there has been any presumed prejudicial preadjudicative notice error, if any, it did not affect the essential fairness of the adjudication now on appeal. II. Factual background. The veteran served on active duty from July 1975 to August 1976. The service medical records show that that the veteran was seen on several occasions for blisters on her feet. However, the service medical records do not reflect any complaints of or diagnosis of a left ankle injury or disease. Significantly, on the occasion of a separation examination in June 1976, clinical evaluation of the lower extremities was normal. A VA compensation examination, conducted in December 1976, was negative for any complaints, clinical findings or diagnosis of a left ankle disorder. Examination of the musculoskeletal system disclosed no limitation of motion; there was no edema or swelling of the lower extremities. Of record are VA progress notes dated from December 2001 to February 2004. The veteran was seen at an orthopedic clinic in November 2003 for a follow up evaluation of a left calcaneous fracture; she reported that the injury occurred approximately 6 months ago. The veteran also reported some discomfort in both hands and thumbs, which was worse with activity. Following an evaluation, the veteran was diagnosed with left subtalar post-traumatic arthritis, and bilateral first CMC osteoarthritis. During a clinical visit in December 2003, it was noted that the veteran's left foot was broken in three places six months ago, and she still had pain. It was noted that, with the left ankle fracture in May 2003, the veteran had a calcaneus fracture. The assessment was left ankle and foot pain. At her personal hearing, the veteran maintained that her ankle disorder began during basic training; she reported getting a bad infection on her feet, but was not allowed to go to sick call. The veteran indicated that although she broke her ankle two years ago, she felt that the infection she had in service caused her feet to become weaker and, thereby, made her susceptible to suffer the ankle fracture. III. Legal Analysis. Under the governing statutory and regulatory criteria, service connection may be granted for disability resulting from personal injury suffered or disease contracted during active military service, or for aggravation of a pre-existing injury or disease during such service. 38 U.S.C.A. § 1131 (West 2002 & Supp. 2007); 38 C.F.R. § 3.303(a) (2007). Where there is a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. Id. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Court has consistently held that, under the law cited above, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). This principle has been repeatedly reaffirmed by the United States Court of Appeals for the Federal Circuit, which recently stated that "a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability." Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.102; and Gilbert v. Derwinski, 1Vet. App. 49, 55 (1990). Having reviewed the evidence pertaining to this claim, the Board has determined that service connection for a left ankle disorder is not warranted. In this regard, the Board observes that there is no indication of any disease or injury to the left ankle in service. The Board notes that the first indication of a problem with the left ankle dates to the April 2003 fracture of the left ankle. In summary, there is a remarkable lack of evidence demonstrating any complaint or abnormal finding pertaining to the veteran's left ankle during the period from service discharge in 1976 until 2003. Moreover, the record does not include any evidence of a relationship between the current claimed left ankle disorder and the veteran's active service, to include her report of blisters or infection of the feet. The Board has considered the veteran's argument that this claimed disability is related to service. However, she is not, as a layperson, qualified to render a medical diagnosis or an opinion concerning medical causation. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The Board has been presented with normal records at service discharge and a notable lack of credible evidence of pathology or treatment in proximity to service or within many years of separation. The Board finds the negative and silent record to be far more probative than the veteran's remote, unsupported assertions. Rather, the competent evidence clearly establishes that the post service diagnosis is not related to service. Absent reliable evidence relating a left ankle disorder to service, the Board must conclude that the preponderance of the evidence is against the veteran's claim. Accordingly, service connection for a left ankle disorder is denied. ORDER Service connection for a left ankle disorder is denied. REMAND The Board notes that the VCAA requires that VA afford a veteran a medical examination or obtain a medical opinion when necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A (d). The VA is obligated to conduct "'a thorough and contemporaneous medical examination'" when necessary. Porcelle v. Derwinski, 2 Vet. App. 629, 632 (1992) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991). When medical evidence is not adequate, the VA must supplement the record by seeking an advisory opinion or ordering another examination. 38 C.F.R. § 3.159(c) (4) (i). See Littke v. Derwinski, 1 Vet. App. 90 (1991). In the present case, the service medical records show that the veteran was noted that fine tremors of the hands in October 1975. Post service medical records, VA as well as private treatment reports, show a current diagnosis of bilateral carpal tunnel syndrome. At her personal hearing before the DRO, in April 2005, the veteran testified she developed carpal tunnel syndrome as a result of her military duties which involved working in the finance department in service, where she did a lot of typing; she was also a postal clerk. In McLendon v. Nicholson, 20 Vet. App. 79 (2006) the Court held that VA must provide a medical examination when there is: (1) competent evidence of a current disability or persistent recurrent symptoms of a disability; (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 Secretary to make a decision on the claim. In this case, the veteran has been diagnosed with bilateral carpal tunnel syndrome. Furthermore, service medical records show that the veteran had fine tremors of the hands in October 1975. In light of decisions of the Court, an opinion is required. See McLendon. In light of the discussion above, and to ensure full compliance with due process requirements, the case is hereby REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The RO should request an opinion and a review of the record by a neurologist. The examiner should determine whether the there is any relationship between the currently diagnosed bilateral carpal tunnel syndrome and the in-service finding of fine tremors in the hands. (The AOJ is at liberty to obtain an examination from a neurologist if deemed necessary.) 2. If upon completion of the above action, the claim remains denied, the case should be returned to the Board for further appellate review. No action is required of the veteran until she receives further notice. The purposes of this REMAND are to further develop the record and to the accord the veteran due process of law. By this remand, the Board does not intimate any opinion, either factual or legal, as to the ultimate disposition warranted in this case. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006). ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs