Citation Nr: 1016399 Decision Date: 05/03/10 Archive Date: 05/13/10 DOCKET NO. 07-04 940 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for a bilateral knee disability, as secondary to service-connected residuals of a fracture of the left fifth toe. 2. Entitlement to service connection for bilateral hip disability, as secondary to the service-connected residuals of a fracture of the left fifth toe. REPRESENTATION Veteran represented by: National Association of County Veterans Service Officers WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD A. Nigam, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1962 to September 1966. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a December 2006 RO rating decision that denied service connection for a bilateral knee disability and for a bilateral hip disability as secondary to the service-connected residuals of a fracture of the left fifth toe. During the course of his appeal, the Veteran was afforded a Travel Board hearing before the undersigned Veterans Law Judge in January 2008. These matters were most recently before the Board in April 2008, when the case was remanded to the RO. The purpose of the remand was to obtain current VA treatment records, and to schedule the Veteran for a VA orthopedic examination. The Board finds there has been substantial compliance with its April 2008 remand directives. The Board notes that the United States Court of Appeals for Veterans Claims (Court) has recently held that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999). FINDINGS OF FACT 1. The Veteran is not show to have manifested complaints or findings of any knee or hip disorders in service. 2. The currently demonstrated mild bilateral knee osteoarthritis and rheumatoid arthritis are not shown to be due to an injury or other event of the Veteran's active service; nor is either shown to have been caused or aggravated by the service-connected residuals of a fracture of the left fifth toe. 3. The currently demonstrated mild bilateral hip osteoarthritis and rheumatoid arthritis are not shown to be due to an injury or other event of the Veteran's active service; nor is either shown to have been caused or aggravated by the service-connected residuals of a fracture of the left fifth toe. CONCLUSIONS OF LAW 1. The Veteran does not have a bilateral knee disability due to disease or injury that was incurred in or aggravated by active service; nor is any shown to be proximately due to or the result of the service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2009). 2. The Veteran does not have a bilateral hip disability due to disease or injury that was incurred in or aggravated by active service; nor is any shown to be proximately due to or the result of the service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to notify and assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2009)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2009). Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board notes that 38 C.F.R. 3.159 was recently amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 38 C.F.R. § 3.159 (2009). In Pelegrini, the Court held that VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. The Court has also 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 elements of a service connection claim. Those elements include: 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 of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 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 as reasonably contemplated by the application. Additionally, this notice must inform a claimant that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. In this case, in letters dated in May 2006, September 2006, and May 2008, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate his claims, as well as what information and evidence must be submitted by the Veteran and the types of evidence that will be obtained by VA. Additionally, these letters specifically informed the Veteran as to disability ratings and effective dates. As noted above, the claim was readjudicated via an SSOC issued in March 2010. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file includes the Veteran's service treatment records, VA and private treatment records, and VA examination reports. Also of record and considered in connection with the appeal are the Veteran and his spouse's hearing testimony, along with various written statements submitted by the Veteran and his representative. As discussed above, the Veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process, identifying pertinent medical evidence and submitting evidence. Thus, he has been provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Legal Criteria In general, service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131. Service connection may also be established for disease diagnosed after discharge from service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2009). To establish a service connection for an injury, a veteran is required to show (1) medical evidence of a current disability, (2) medical or lay evidence of in-service incurrence or aggravation of an injury, and (3) medical evidence of a nexus between the claimed in-service injury and the present disability. Dalton v. Nicholson, 21 Vet. App. 23, 36 (2007). In cases where the veteran cannot establish some of these elements, a veteran can instead establish continuity of symptomatology. 38 C.F.R. § 3.303(b); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). To establish continuity of symptomatology, the a veteran is required to show "(1) that a condition was 'noted' during service, (2) evidence of postservice continuity of the same symptomatology, and (3) medical or lay evidence of a nexus between the present disability and the postservice symptomatology." Barr, 21 Vet. App. at 307. 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. Secondary service connection shall be awarded when a disability "is proximately due to or the result of a service- connected disease or injury." 38 C.F.R. § 3.310(a). Also, 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. See 71 Fed. Reg. 52744-52747 (Sept. 7, 2006) (to be codified at 38 C.F.R. § 3.310(b)); Libertine v. Brown, 9 Vet. App. 521, 522 (1996); see also Reiber v. Brown, 7 Vet. App. 513, 515-16 (1995); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Effective on October 10, 2006, 38 C.F.R. § 3.310 was amended to implement the holding in Allen v. Brown, 7 Vet. App. 439 (1995) for secondary service connection on the basis of the aggravation of a nonservice-connected disorder by service- connected disability. See 71 Fed. Reg. 52744 (2006). The amendment essentially codifies Allen with language that requires that a baseline level of severity of the nonservice- connected disease or injury must be established by medical evidence created before the onset of aggravation. As to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service- connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the claimed disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis The Board has reviewed all the evidence in the Veteran's claims file, which includes his written contentions, his and his wife's testimony, private and VA treatment records and VA examination reports. Although this Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claim file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). By way of procedural background, the Board notes that a December 1966 RO rating decision granted entitlement to service connection for the residuals of a fracture of the 5th left toe and assigned a noncompensable (0 percent) evaluation, effective from September 21, 1966. A January 1980 RO rating decision granted an increased evaluation to 10 percent for the service-connected residual fracture of the fifth left toe, effective from September 14, 1979. In March 2006 the Veteran filed a claim for entitlement to service connection for hip and knee disabilities as secondary to the service-connected toe disability. In his January 2008 Board hearing testimony, he contended that he first noticed problems with his knees and hips at the age of 25, approximately 3 years after he was discharged from service that he believes was directly caused by his service-connected residuals of a fracture of the left fifth toe because he walks with an altered gait. Based upon the evidence of record as described in detail below, the Board finds the Veteran is not shown to have bilateral knee or hip disorders that are shown to be due to an injury or other event of the Veteran's active service, or shown to have been caused or aggravated by the service- connected residuals of a fracture of the left fifth toe. The Board notes initially that the service treatment records are negative for any complaints or findings referable to any knee or hip disorders. Moreover, evidence of knee and hip disorders were not shown in the record until many years after the Veteran was discharged from service. This is strong evidence against a finding of any continuity of symptomatology. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000). A July 1979 VA orthopedic examination report shows findings of an even and stable gait, and that the Veteran did not wear special footwear. A December 1998 VA examination report indicates upon examination of the foot that the Veteran walked, heel and toe, without difficulty, and displayed a normal gait. Further, the examiner noted that examination of the sole revealed a normal wear pattern. VA and private treatment records, dated from June 2005 to December 2007, revealed findings of pain, arthralgias, osteoarthritis and rheumatoid arthritis in both the hips and the knees, bilaterally. Specifically, a July 2005 private treatment record reflects a reported history of pain in the lower back and hips beginning in September 2004. The diagnoses included trochanteric bursitis, osteoarthritis of the hip, and degenerative disc disease of the spine. Notably, the Veteran has consistently denied suffering any injury, both in service and post service, to his knees or hips. Significantly, in April 2006 and June 2006 private opinion letters, two private physicians opined that the Veteran's hip and knee problems were exacerbated by his service-connected residuals of a foot injury suffered in 1966 due to his altered biomechanics including an abnormal gait pattern during the symptomatic episodes related to his foot injury and resulting deformity. A June 2006 VA feet examination report shows diagnoses of residuals of the left fifth toe fracture, bilateral tailor's bunions, and submetatarsal five calluses of the left foot which was significantly thicker than the right foot. The examiner noted that these calluses were due to abnormal weight-bearing from the fifth toe fracture. In conjunction with the current appeal the Veteran underwent a VA joints examination which reflects an opinion that the Veteran's left hip condition and left knee condition were not at least as likely as not secondary to the service-connected fractured fifth toe. The examiner noted that it could not be determined if the hip and knee disorders were aggravated by the fifth toe residuals of fracture, nor could the examiner provide the etiology of the hip and knee disorders to determine if these disorders were aggravated by the fractured foot, without resorting to mere speculation. A VA examination in October 2006 conducted by a different VA examiner shows that the Veteran complained of a left foot injury in 1966 caused an intermittent limp, which has led to hip and knee pain. He claimed to currently suffer from daily pain for which he takes Etodolac, Cyclobenzaprine, Celebrex, and Hydrocodone with relief, but denied using any assistive device. The examiner noted that X-ray testing of the left hip in June 2005 showed osteoarthritis. The examiner indicated that there was no evidence of the Veteran sustaining any injury to his knee or hip, and there is no objective documentation of him having a limp between 1966 and today, a 40 year gap. The examiner therefore concluded that it would be purely speculative to make any definitive statement regarding causation of the left hip strain and left patellar femoral syndrome. The examiner noted, however, that if, in fact, the Veteran had a limp for the 40 year period since 1966, then it would be at least as likely as not that the hip and knee were secondary to the foot disability. Notably, an award of service connection may not be based on resort to speculation or remote possibility. See 38 C.F.R. § 3.102 (2009); see also Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Obert v. Brown, 5 Vet. App. 30, 33 (1993); Bostain v. West, 11 Vet. App. 124, 127 (1998). Most recently, the Veteran underwent a third VA joints examination in January 2010. The Veteran reported bilateral hip and knee pain 5 years prior, and denied experiencing civilian injuries to his bilateral knees and hips. The Veteran stated that when he was last treated for his left knee and left hip pain, it was more severe, but he did have right side pain at the time as well. The examiner noted that the Veteran has been placed on oral pain medications and is currently being treated for rheumatoid arthritis. The Veteran was observed as able to stand for 15 to 30 minutes, and able to walk more than 1/4th of a mile but less than 1 mile. Further, upon physical examination, it was noted that he displayed antalgic gait with poor propulsion, and that inflammatory arthritis was present as an active process. X-ray testing revealed no acute facture or dislocation for either the hips or the knees, bilaterally. Moreover, a small intrabursal or intracapsular body adjacent to the left greater trochanter was seen only on the anterior- posterior view of the left hip; mild osteoarthritis and mild ischial enthesopathy was shown for the right hip; very mild tricompartmental osteoarthritis and small suprapatellar joint effusion was shown for the left knee; and mild osteoarthritis which was tricompartmental, small suprapatellar joint effusion, and vascular calcification was shown for the left knee. Here, the Veteran was diagnosed with mild bilateral knee osteoarthritis, mild bilateral hip osteoarthritis, and moderate rheumatoid arthritis. The examiner provided an opinion as to the nature and likely etiology of both the hip and knee disorders, finding that they are not at least as likely as not related to the Veteran's military service or to the service-connected residuals of his left fifth toe injury. Additionally, the examiner attributed the Veteran's current bilateral knee and hip disorders to the natural aging process and rheumatoid arthritis. The Board finds the January 2010 VA examiner's opinion persuasive on the question of medical relationship between any current bilateral knee and hip disorders and service, inasmuch as the opinion clearly was based upon both examination of the Veteran and consideration of his documented medical history and assertions, and because the rationale underlying the opinion is reasonable and consistent with the evidence of record. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, 4 Vet. App. 467, 470- 471 (1993). Despite contradictory opinions from private and VA practitioners that the Veteran's hip and knee problems were exacerbated by his service-connected residuals of a foot injury, due to altered biomechanics including an abnormal gait pattern during the symptomatic episodes, the Board finds that the January 2010 examiner's opinion is most persuasive on the question of the existence of a nexus. The Board has the authority to "discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). VA is free to favor one medical opinion over another provided it offers an adequate basis for doing so. See Owens v. Brown, 7 Vet. App. 429 (1995). Moreover, although the Veteran has asserted that he suffered knee and hip disorders at the age of 25, the medical evidence of record reflects that it was not until 2005 that he began to experience problems with his knees and hips. As noted in the July 1979 and December 1998 VA examination reports, the Veteran had an even and stable gait, did not wear special footwear, walked, heel and toe, without difficulty, and had a sole that revealed a normal wear pattern. Accordingly, as the preponderance of the evidence is against the claim, the claims of service connection for a bilateral knee disorder and for a bilateral hip disorder must be denied. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.310. The benefit-of-the-doubt rule is not for application. See Gilbert, 1 Vet. App. at 55. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision. In reaching this conclusion, the Board notes that it is precluded from reaching its own unsubstantiated medical conclusions, and is instead bound on these matters by the medical evidence of record. See Jones v. Principi, 16 Vet. App. 219, 225 (2002), citing Smith v. Brown, 8 Vet. App. 546, 553 (1996) (en banc); in Colvin v. Derwinski, 1 Vet. App. 171 (1991). ORDER Entitlement to service connection for bilateral knee disabilities, as secondary to the service-connected residuals of a fracture of the left fifth toe is denied. Entitlement to service connection for bilateral hip disabilities, as secondary to the service-connected residuals of a fracture of the left fifth toe is denied. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs