Citation Nr: 1007168 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 07-24 224A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a left leg disorder, to include as secondary to service-connected arthritis of the right great toe with hallux rigidus. 2. Entitlement to service connection for a left ankle disorder, to include as secondary to service-connected arthritis of the right great toe with hallux rigidus. REPRESENTATION Veteran represented by: AMVETS ATTORNEY FOR THE BOARD K. M. Schaefer, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1979 to September 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in June 2006 by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. Jurisdiction was subsequently transferred to the Detroit, Michigan RO. FINDING OF FACT The medical evidence of record does not demonstrate a current diagnosis of a disability of the left leg. CONCLUSION OF LAW A left leg disorder is not proximately due to or the result of service-connected arthritis of the right great toe with hallux rigidus. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.310 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes certain duties upon VA to notify the claimant of the shared obligations of the claimant and VA in developing his or her claim and to assist the claimant by making reasonable efforts to obtain relevant evidence in support of the claim. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). VA must inform a claimant about the information and evidence not of record that is necessary to substantiate the claim, the information and evidence that VA will seek to provide, and the information and evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (revised 73 Fed. Reg. 23353-23356, April 30, 2008); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Additionally, in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court of Appeals for Veterans Claims (Court) held that VCAA notice requirements also apply to the evidence considered in determinations of the degree of disability and effective date of the disability once service connection has been established. VCAA notice must be provided before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claims for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was provided with a VCAA notification letter in March 2006, prior to the initial unfavorable AOJ decision issued in June 2006. The Board observes that the pre-adjudicatory VCAA notice issued in January 2005 informed the Veteran of the type of evidence necessary to establish service connection, to include on a secondary basis, how VA would assist him in developing his claim, and his and VA's obligations in providing such evidence for consideration. The Board notes that this letter did not advise the Veteran of how to substantiate disability ratings and effective dates; however, the Board finds that no prejudice to the Veteran has resulted. 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). As the Board herein concludes that the preponderance of the evidence is against the Veteran's claim, any questions as to the assignment of disability ratings and effective dates are rendered moot. Therefore, the Board finds that the Veteran was provided with all necessary notice under VCAA prior to the initial adjudication of his claim. Accordingly, the Board determines that the content requirements of VCAA notice have been met and the purpose of such notice, to promote proper development of the claim, has been satisfied. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Based on the above, the Board finds that further VCAA notice is not necessary prior to the Board issuing a decision. VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim and providing him with a VA examination. The Veteran's service treatment records, VA medical records, private medical records, and the reports of May 2006 and December 2008 VA examinations were reviewed by both the AOJ and the Board in connection with adjudication of his claim. With regard to the VA examinations, the Board notes that once VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In this case, the Board observes that the May 2006 VA examination report does not indicate that the claims file was reviewed; however, the examination report includes an accurate review of the Veteran's medical history as to his service-connected right toe disability, as well as documentation of the Veteran's subjective complaints and medical history, and findings upon examination. The examiner then reached a diagnosis that was based on his findings upon examination. Nothing suggests that he reached an arbitrary conclusion and the conclusion is not contradicted by other medical evidence of record. Moreover, the December 2008 VA examiner performed a thorough examination, which included review of the claims file, and reached the same conclusion as to diagnosis. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159 (c)(4). In light of the above, the Board concludes that the medical evidence of record is sufficient to adjudicate the Veteran's claim without further development and additional efforts to assist or notify the Veteran in accordance with VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran). Therefore, the Board determines that the Veteran will not be prejudiced by the Board proceeding to the merits of the claim. II. Analysis Service connection may be granted for disability arising from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303(a). 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). A finding of direct service connection requires medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under section 3.303(b), an alternative method of establishing the second and/or third Caluza element is through a demonstration of continuity of symptomatology. See Savage v. Gober, 10 Vet. App. 488 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances lay evidence of a nexus between the present disability and the post-service symptomatology. See Savage, 10 Vet. App. at 495-96; Hickson, 12 Vet. App. at 253 (lay evidence of in- service incurrence sufficient in some circumstances for purposes of establishing service connection). The Veteran contends that he suffers a left leg disorder as a result of compensating for the disability caused by his service-connected arthritis of the right great toe with hallux rigidus. Therefore, he contends that he is entitled to service connection for a left leg disorder on a secondary basis. Because neither the Veteran nor treatment and documentary evidence of record suggests that the Veteran has a left leg disorder that is directly related to his military service, the Board will not further address such a theory of entitlement. See Robinson v. Mansfield, 21 Vet. App. 545, 559 (2008), aff'd Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) (holding that claims that have no support in the record need not be considered by the Board; the Board is not obligated to consider "all possible" substantive theories of recovery). While the appeal was pending, the regulation relevant to service connection claims on a secondary basis, 38 C.F.R. § 3.310, was revised. Effective October 10, 2006, the section heading was retitled "Disabilities that are proximately due to, or aggravated by, service-connected disease or injury," and the text amended to include a new paragraph: (b) Aggravation of nonservice-connected disabilities. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service- connected disease or injury, and not due to the natural progress of the nonservice- connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service- connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice- connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. See also Allen v. Brown, 7 Vet. App. 439 (1995). The Board notes that the Veteran was not specifically informed of the evidence necessary to establish secondary service connection. However, the Board finds no prejudice in the Board considering the regulation changes in adjudicating the Veteran's service connection claim. See Bernard at 394. As the record does not demonstrate the presence of any left leg disability, the question of a change in severity of such disability is rendered moot. The record reflects that the Veteran is in receipt of service-connected benefits for arthritis of the right great toe with hallux rigidus. The record does not, however, show that the Veteran has a diagnosed disability of the left leg. The Veteran filed his claim in February 2006. VA treatment records and VA examination reports document that the Veteran walks with an altered gait, uses a cane, and has worn a left ankle wrap or brace, although it is not apparent that he is consistent in his use of assistive devices. Prior to filing this claim and after service connection was effected for the right ankle disability in a November 2001 rating decision, the Veteran was afforded multiple VA orthopedic examinations (September 2003, August 2004, January 2005). However, his complaints with respect to his left lower extremity as noted at these examinations were limited to the left foot and ankle without reference to the left leg. (Claims related to the left foot and ankle complaints have been adjudicated separately.) Further, the Board observes that a September 2009 private treatment record indicates that the Veteran sought treatment for his left ankle complaints, but does not discuss the left leg. A letter from Dr. IS, dated in June 2008, states that the Veteran's service-connected right foot disability limited that foot's functioning and caused him to shift weight to the other foot, affecting how that foot functions as well. Although she makes a vague reference to shifting of weight to a leg, she does not include the left leg in parts of the body in which the Veteran experiences pain. Moreover, the May 2006 and December 2008 VA examiners observed no abnormalities of the left leg. The May 2006 examiner stated that there was no pathological diagnosis of the left leg, and the December 2008 examiner states that the Veteran had a normal left leg. The Board observes that the December 2008 examiner refers to a left leg condition in his nexus opinion; however, he also reiterates that the physical examination of the left leg was normal. In light of the above, the Board concludes that the Veteran does not have a diagnosed disability of the left leg. Where there is no disability, there can be no entitlement to compensation. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran can attest to factual matters of which he had first-hand knowledge, e.g., pain in his left leg. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the question of diagnosis and causation. See Jones v. Brown, 7 Vet. App. 134, 137 (1994); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). In this case, the Veteran is competent to describe his symptoms, but he is not competent to assign a diagnosis of a left leg disorder associated with those symptoms. In fact, the Board notes that the Veteran has only ever described pain in the left leg. Pain alone is not a disability and without a diagnosed or identifiable underlying malady or condition, cannot be service-connected. Sanchez- Benitez v. West, 13 Vet. App. 282, 285 (1999). Absent competent evidence of a diagnosed disability of the left leg, the preponderance of the evidence is against the claim, and service connection for a left leg disorder is not warranted. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7. ORDER Service connection for a left leg disorder is denied. REMAND With respect to the left ankle disorder claim, the Board finds that a remand is necessary for the purpose of affording the Veteran another VA examination in light of newly received evidence. Specifically, since the Veteran attended a VA examination in December 2008, he has submitted an August 2009 MRI report for the left ankle that states that he has an osteochondral lesion of the left talus and partial tears of ligaments. In forming the opinion in December 2008, the examiner found the left ankle to be normal and relied on normal X-rays in concluding that there was no left ankle disorder due to the service-connected right great toe disability. He indicated that, had the Veteran been experiencing left ankle discomfort since 1994 as he claimed, the X-ray should show degenerative changes. However, the examiner did not have benefit of the August 2009 MRI. Therefore, the Board concludes that this additional evidence renders the December 2008 VA opinion inadequate and that another VA examination to assess the existence and etiology of the claimed left ankle disorder should be scheduled. Barr at 312. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination in order to ascertain the existence and etiology of his claimed left ankle disability. The claims file should be made available for review, and the examination report should reflect that such review occurred. Upon a review of the record and examination of the Veteran, the examiner should identify any current left ankle disorder and respond to the following: For any left ankle disorder diagnosed, is it at least as likely as not (50 percent probability or greater) that the disorder has undergone a permanent increase in severity beyond the normal progression due to his service-connected arthritis of the right great toe with hallux rigidus? A rationale for any opinion advanced should be provided. The examiner should also state what sources were consulted in forming the opinion. 2. After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated, to include all evidence received since the November 2009 supplemental statement of the case. If the claim remains denied, the Veteran and his representative should be issued another supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matter 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. 2009). ______________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs