Citation Nr: 1007991 Decision Date: 03/03/10 Archive Date: 03/11/10 DOCKET NO. 04-27 386 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for residuals of a left femur fracture. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Rochelle E. Richardson, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1983 to September 2003. This appeal to the Board of Veterans' Affairs (Board) originated from a January 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. After remanding this case in March 2007, the Board issued a decision in February 2009 denying several other claims the Veteran also appealed, but again remanding his claim for service connection for residuals of a left femur fracture to the RO via the Appeals Management Center (AMC) for still further development and consideration. The Remand & Rating Development Team at the RO in Huntington, West Virginia, has since completed this additional development and issued a supplemental statement of the case (SSOC) in September 2009 continuing to deny this sole remaining claim. So this claim is again before the Board. FINDINGS OF FACT There is clear and unmistakable evidence the Veteran fractured his left femur prior to beginning his military service, as documented during his military enlistment examination; there also is clear and unmistakable evidence he does not have additional disability from permanent exacerbation of the fracture or associated residuals during or as a result of his military service beyond the condition's natural progression. CONCLUSION OF LAW The Veteran does not have residuals of a left femur fracture that were incurred in or aggravated by his military service. 38 U.S.C.A. §§ 1110, 1131, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.306 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Duties to Notify and Assist Review of the claims file reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100, et seq. See also 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). That is, by way of letters dated in June 2003 and May 2007, the RO and AMC advised the Veteran of the evidence needed to substantiate his claim and explained what evidence VA was obligated to obtain or to assist him in obtaining and what information or evidence he was responsible for providing. 38 U.S.C.A. § 5103(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). For a claim, as here, pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 was amended to eliminate the requirement that VA also request that he submit any evidence in his possession that might substantiate his claim. See 73 FR 23353 (Apr. 30, 2008). The RO issued that June 2003 VCAA notice letter prior to initially adjudicating the Veteran's claim in January 2004, the preferred sequence. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (Pelegrini II). The additional, more recent, May 2007 letter also apprised him of the downstream disability rating and effective date elements of his claim. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). And since providing that additional, post-adjudicatory, VCAA notice in May 2007, the AMC has readjudicated his claim in the August 2008 and September 2009 SSOCs, including considering any additional evidence received in response to that additional VCAA notice. This is important to point out because if the VCAA notice provided prior to the initial adjudication of the claim was inadequate or incomplete, this error can be effectively "cured" by providing any necessary VCAA notice and then going back and readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In Shinseki v. Sanders, 129 S. Ct. 1696 (2009), the United States Supreme Court made clear that a reviewing court, in considering the rule of prejudicial error, is precluded from applying a mandatory presumption of prejudice rather than assessing whether, based on the facts of each case, the error was outcome determinative. In Sanders, the Supreme Court rejected the lower Federal Circuit's framework (see Sanders v. Nicholson, 487 F. 3d 881, 889 (Fed. Cir. 2007)) that all VA notice errors are presumptively prejudicial, in part, because it was "complex, rigid, and mandatory." Id., at 1704. The Supreme Court rejected the Federal Circuit's analysis because it imposed an unreasonable evidentiary burden on VA to rebut the presumption and because it required VA to demonstrate why the error was harmless, rather than requiring the appellant - as the pleading party, to show the error was harmful. Id., at 1705-06. The Supreme Court stated that it had "warned against courts' determining whether an error is harmless through the use of mandatory presumptions and rigid rules rather than case-specific application of judgment, based upon examination of the record." Id., at 1704-05. Thus, it is clear from the Supreme Court's analysis that, while the Veterans Court may conclude generally that a specific type of error is more likely to prejudice an appellant, the error must nonetheless be examined in the context of the facts of the particular case. Id. The Veterans Court held in Vazquez-Flores v. Peake, 22 Vet. App. 37, 48 (2008), since overturned on other grounds in Vazquez-Flores v. Shinseki, 2009 WL 2835434 (Fed.Cir.), that prejudicial deficiencies in the timing or content of a VCAA notice can be cured by showing the essential fairness of the adjudication will not be affected because: (1) the defect was cured by actual knowledge on the part of the claimant ("Actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrates an awareness of what was necessary to substantiate his or her claim.") (citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007)); (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. Sanders, 487 F. 3d at 889. Additionally, consideration also should be given to "whether the post- adjudicatory notice and opportunity to develop the case that is provided during the extensive administrative appellate proceedings leading to the final Board decision and final Agency adjudication of the claim ... served to render any pre-adjudicatory section 5103(a) notice error non- prejudicial." Vazquez-Flores, 22 Vet. App. at 46. See also Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding the Board had erred by relying on various post-decisional documents for concluding adequate 38 U.S.C.A. § 5103(a) notice had been provided to the appellant, the Veterans Court nonetheless determined the evidence established the Veteran was afforded a meaningful opportunity to participate effectively in the adjudication of his claims, and therefore found the error harmless). And as for the duty to assist, the RO and AMC obtained the Veteran's service treatment records (STRs), service personnel records (SPRs), and VA treatment records - including the reports of his VA Compensation and Pension Examinations (C&P Exams) containing opinions addressing the nature and etiology of his asserted condition, including specifically in terms of whether it was caused by his military service or, if pre- existing his military service, was chronically aggravated during or as a consequence of his service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d); and 38 C.F.R. § 3.159(c)(4) (VA must obtain an examination and opinion when necessary to fairly decide a claim). As there is no indication or allegation that relevant evidence remains outstanding, the Board finds that the duty to assist has been met. 38 U.S.C.A. § 5103A. The Board is also satisfied there was substantial compliance with its February 2009 remand directives - particularly insofar as obtaining the requested medical nexus opinion concerning whether his claimed disability was caused or aggravated by his military service. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). II. Entitlement to Service Connection for Residuals of a Left Femur Fracture Service connection is granted if the evidence shows a current disability resulted from an injury or a disease that was incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Direct service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). A disorder may be service connected if the evidence of record reveals the Veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated subsequent to service. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Evidence that relates the current disorder to service must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. Savage, 10 Vet. App. at 495-97. For the showing of chronic disease in service, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). Disorders diagnosed after discharge may still be service connected if all the evidence, including relevant service records, establishes the disorder was incurred in service. 38 C.F.R. § 3.303(d). Where the determinative issue involves medical causation or a medical diagnosis, there generally must be competent medical evidence to the effect that the claim is plausible; lay assertions in this regard generally are insufficient. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). A layperson generally is incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). There are exceptions to this general rule. Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). When, for example, a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is resolved in favor of the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. As indicated, the first and indeed perhaps most fundamental requirement for any service-connection claim is there must be competent evidence of the existence of the currently claimed disability. Boyer, 210 F.3d at 1353; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (service connection presupposes a current diagnosis of the condition claimed, to at least confirm the Veteran has it; without this minimum level of proof, there can be no valid claim). March and May 2009 VA medical opinions confirm the Veteran has a healed left femur fracture with left thigh scar and X-ray findings of heterotopic bone along the greater trochanter and three screws in the proximal to mid femoral shaft with cortical thickening. So there is competent evidence of this claimed condition, that is, proof that he has in the past fractured his left femur. Consequently, the determinative issue is whether he has additional disability as a consequence attributable to his military service or, instead, the result of unrelated factors. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("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."). See, too, Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). Concerning this, the Veteran readily acknowledges that prior to service he fractured his left femur and was treated initially with a rod and placement of four screws. But he adds that he has since had to undergo additional surgery because of a chronic worsening of this pre-existing condition as a result of the many years he was in the military. He says that he initially experienced only mild left thigh pain, but that his symptoms progressively worsened throughout his military career and during the several years since his discharge, despite having no additional injuries to his left femur, per se. See his medical history in the report of his March 2009 VA C&P exam. Even as a layman, the Veteran is competent to attest to having experienced progressively worsening left thigh pain. See Davidson v. Shinkseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); Jandreau v. Nicholson, 492 F.3d 1331 (Fed. Cir. 2007). Whether his lay testimony is also credible, however, is another matter altogether. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) (indicating the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence). See also Rucker v. Brown, 10 Vet. App. 67 (1997) and Layno v. Brown, 6 Vet. App. 465, 469 (1994) (indicating competency must be distinguished from weight and credibility, which are factual determinations going to the ultimate probative value of the evidence). Every Veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence indicates the disease or injury existed before acceptance and enrollment, and was not aggravated by service. 38 U.S.C.A. §§ 1111, 1137; 38 C.F.R. § 3.304(b). The report of the Veteran's March 1983 military enlistment physical examination notes a well-healed left femur fracture that had been treated with open reduction and had a left thigh scar as a residual. The presumption of soundness attaches only where there has been an induction examination during which the disability about which the Veteran later complains was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). Here, since this pre-existing condition was noted upon his entry into military service, he may not bring a claim for service connection for this disability, but he may instead bring a claim for service- connected aggravation of this disability. In this circumstance, § 1153 applies and the burden falls on him, not VA, to establish aggravation. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). Only had the condition not been noted during his enlistment examination would VA then be required to show by clear and unmistakable evidence both that the condition existed prior to service and that it was not aggravated during service beyond its natural progression. See VAOPGCPREC 3-2003 (July 16, 2003). A pre-existing injury or disease will be considered to have been aggravated during service when there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). The presumption of aggravation may be rebutted only by clear and unmistakable evidence. 38 C.F.R. § 3.306(b). "Clear and unmistakable evidence" is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than that of "clear and unmistakable evidence"). But independent medical evidence is needed to support a finding that a pre-existing disorder increased in severity during service beyond its natural progression. See Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1994). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, itself, as contrasted with mere symptoms, has worsened. See Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Moreover, in Verdon v. Brown, 8 Vet. App. 529 (1996), the Court held that the presumption of aggravation does not attach even where the pre-existing disability has been medically or surgically treated during service and the usual effects of treatment have ameliorated disability so that it is no more disabling than it was at entry into service. Only if the Veteran manages to show a chronic worsening of his pre-existing condition during his service would the presumption of aggravation apply and, in turn, require VA to then show by clear and unmistakable evidence that the worsening was not beyond the condition's natural progression. The presumption of aggravation applies only when pre-service disability increases in severity during service. Beverly v. Brown, 9 Vet. App. 402, 405 (1996); Browder v. Derwinski, 1 Vet. App. 204, 206-207 (1991). Turning back now to the facts of this particular case. The Veteran's STRs are unremarkable for complaints or treatment relating to his asserted progressively increasing left thigh pain. This, alone, is not altogether determinative of whether there was chronic worsening of his pre-existing condition while in service. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (indicating that, where lay evidence provided is credible and competent, the absence of contemporaneous medical documentation does not preclude further evaluation as to the etiology of the claimed disorder). But the absence of any relevant complaints or objective clinical findings while in service, suggesting this indeed occurred, is nonetheless probative evidence to be considered in making this important determination and tends to go against the notion there was such claimed worsening. See Struck v. Brown, 9 Vet. App. 145 (1996). While his STRs show he received medical treatment in relation to ambulatory problems, such as pain while walking, this was attributed to knee problems unrelated to his prior left femur fracture. See, e.g., his February 2003 Report of Medical Assessment. And the fact that he did not have any relevant complaints concerning his left femur fracture, specifically, during the more than 20 years he served on active duty from March 1983 to September 2003 is further evidence against the notion that his military service aggravated his pre-existing disability. Cf. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint can be considered, along with other factors concerning the Veteran's health and medical treatment during and after military service, as evidence of whether a pre-existing condition was aggravated by his military service). The March 2008 VA exam report provides that the only current residuals of the Veteran's pre-service left femur fracture are a left thigh scar and X-ray evidence of heterotopic bone along the greater trochanter and three screws in the proximal to mid femoral shaft with cortical thickening. This report also provides that the residuals of the left femur injury manifested during service with the onset of left thigh pain during the 1980s, and that the Veteran complained of pain and increasing symptoms while in service, but that no objective abnormal findings were ever documented as relevant to his left femur. This VA examiner thus concluded that "in all likelihood [the Veteran's] femur problems did not significantly increase in severity during service because [he] was never given duty limitations and served for a 20 year period." So, arguably, even accepting that the Veteran at least had some relevant complaints while in service specifically referable to his left femur, this VA examiner still determined in spite of this that there was no appreciable worsening of the left femur fracture while in service so as to, in turn, suggest a chronic (meaning permanent) worsening of the pre-existing condition. See Browder v. Derwinski, 1 Vet. App. 204, 206-207 (1991) (the presumption of aggravation applies where there was a worsening of the disability in service, regardless of whether the degree of worsening was enough to warrant compensation). That opinion, however, did not also specifically address whether the pre-existing condition was aggravated by the Veteran's military service in relation to its natural progression. See 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). See also 38 C.F.R. § 3.322, indicating that in cases involving aggravation by active service, the rating will reflect only the degree of disability over and above the degree of disability existing at the time of entrance into active service.... And that it is necessary to deduct from the present evaluation the degree, if ascertainable, of the disability existing at the time of entrance into active service.... According to an additional medical opinion obtained on remand in March 2009, it is less likely than not that the Veteran's current left thigh disabilities are related to his active duty service. This opinion further provides that it is most likely that the current residuals of the left femur fracture are due to the natural progress of this disability and unaffected by his military service. In discussing the medical rationale for this opinion, the commenting examiner pointed out that the Veteran's left femur fracture was a significant injury requiring significant surgery that predisposes him to certain conditions, as a matter of disease course - including degenerative disease, chronic pain, and areas of ossification. His military activities, added this examiner, likely played no role in the development of his current symptoms. In May 2009 the RO obtained an addendum opinion regarding this issue. The opinion provides that the examiner concurs with the March 2008 and March 2009 diagnoses and supports those opinions. It further provides that the Veteran's current diagnosis was less likely than not aggravated by military service and that it underwent a natural progression of the condition. These VA examiner's opinions are well-reasoned and based on a review of objective clinical evaluations of the Veteran and independent review of his claims file for the pertinent history, including in terms of the severity of the initial injury and the type and nature of the complaints the Veteran has had during the many years since, including while in the military. So the opinions have the proper factual foundation and predicate and, therefore, are entitled to a lot of probative weight, especially since they are uncontroverted. Elkins v. Brown, 5 Vet. App. 474, 478 (1993); Swann v. Brown, 5 Vet. App. 177, 180 (1993). Although the Veteran no doubt sincerely believes he has additional left femur (thigh) disability as a consequence of serving in the military for such a relatively long time, he must remember that independent medical evidence is needed to support this notion that his pre-existing disorder increased in severity during his service beyond its natural progression. See Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1994). And there simply is no such supporting medical evidence in this particular instance. Instead, for these reasons and bases discussed, the preponderance of the evidence is against his claim - in turn meaning there is no reasonable doubt to resolve in his favor, and that his claim consequently must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER The claim for service connection for residuals of a left femur fracture is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs