Citation Nr: 1018563 Decision Date: 05/19/10 Archive Date: 06/04/10 DOCKET NO. 04-04 377 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a bilateral knee disability. 2. Entitlement to service connection for a bilateral ankle disability. 3. Entitlement to service connection for a right shoulder disability. 4. Entitlement to an initial compensable rating for right ear hearing loss. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney at Law ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from September 1979 to August 2000. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a July 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The RO, in pertinent part, denied entitlement to service connection for bilateral knee and ankle disabilities, joint pain, and right rotator cuff tendonitis. The same decision also awarded service connection for right ear hearing loss and assigned a noncompensable evaluation effective from August 2002. The claims on appeal have been recharacterized as they appear on the cover page of instant decision. The July 2003 rating decision additionally denied service connection for chest pain, a stomach condition, benign prostatic hypertrophy, left ear hearing loss, and cholesterolemia. Additionally, service connection was awarded for a small nasal pterygium of the right eye and left spermatocele both rated as noncompensable effective from August 2002. The matters were previously before the Board in August 2006, wherein the denials for service connection were upheld, as well as the noncompensable ratings for right ear hearing loss, the right eye, and left spermatocele. The Veteran's request for reconsideration of the Board decision was denied in December 2006. Thereafter, the Veteran appealed the decision to the United States Court of Appeals for Veteran's Claims (Court). In an October 2008 Memorandum Decision, the Court upheld the findings of the August 2006 Board decision, except for the denial of an initial compensable evaluation for right ear hearing loss, which was vacated and remanded to the Board for further adjudication and/or development. The Board notes that in August 2006, the claims pertaining to the knees, ankles, and right shoulder were remanded to the RO for further development and adjudication. They have now been returned to the Board, but only the claims for knee and ankle disabilities are ready for appellate disposition. The claims pertaining to the right shoulder and an initial compensable rating for right ear hearing loss are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. The Veteran has raised claims of entitlement to service connection for anxiety, tinnitus, and vertigo. They have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran has been apprised of what evidence would substantiate the claims for benefits and the allocation of responsibility for obtaining such evidence; and all relevant medical and lay evidence obtainable and necessary to render a decision in these matters has been received. 2. The competent medical evidence of record does not contain any currently diagnosed bilateral knee disability that is related to the Veteran's period of active military service. 3. The competent medical evidence of record does not contain any currently diagnosed bilateral ankle disability that is related to the Veteran's period of active military service. CONCLUSIONS OF LAW 1. The criteria for the establishment of service connection for a bilateral knee disability have not been met. 38 U.S.C.A. §§ 1101, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307 (2009). 2. The criteria for the establishment of service connection for a bilateral ankle disability have not been met. 38 U.S.C.A. §§ 1101, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Criteria Service connection may be established for a 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. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of at least 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309. In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in- service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran contends that he is entitled to service connection for knee and ankle disabilities. The Veteran did not set forth a specific incident of service incurrence in written statements, but instead informed the January 2003 VA examiner that he sprained his ankles playing basketball in service, injured his left knee playing volleyball, and he had generalized joint pain since 1990. He additionally informed the August 2008 VA examiner that he had multiple joint pain and injured his ankles and left knee performing strenuous activity during active service. After careful consideration of all procurable and assembled data, the Board finds that service connection is not warranted for knee or ankle disabilities. In this regard, the Veteran's service treatment records are wholly devoid of complaints, diagnoses, or treatment for knee or ankle conditions. Instead these records show the Veteran complained of pain in the right fifth toe in March 1992. X- rays of the right foot were negative. In October 1995, the Veteran reported left lateral heel pain after jumping a puddle and landing on the sidewalk with his heels inverted. X-rays were negative for fracture and showed only a very tiny calcaneal spur near the plantar fascia. He was diagnosed with a left heel sprain. Multiple reports of medical history and examination were negative for knee or ankle conditions. On his June 2000 separation medical history the Veteran indicated he had swollen joints. The provider noted this pertained to the right shoulder and small joints pain. The corresponding physical examination was negative for either a knee or ankle condition. The mere fact that the Veteran was treated for left heel sprain and toe pain is not enough to establish that the Veteran sustained a chronic condition of the knees or ankles during his active duty service. 38 C.F.R. § 3.303(b). Post- service, the Veteran has not been diagnosed with either a knee or ankle condition. Though records from Prudential Financial (the denied short term disability claim) show the Veteran complained of swelling and pain in his ankles and the examiner noted a clinical diagnosis of reactive arthritis provided by the Veteran, there has been no objective evidence to support these findings. ANA (antinuclear antibody) test results were noted to be negative in September 2002. Thereafter, upon VA examination in January 2003, the Veteran presented with subjective complaints of swelling in the ankles and numbness in the right foot plantar aspect. There were no constitutional symptoms of inflammatory arthritis found. All joints were considered stable and pain free. The Veteran was diagnosed with bilateral bunions and a bilateral knee genu varus deformity (bowed legs), which is not subject to service connection as it is congenital in nature. See 38 C.F.R. § 3.303. The arthritic bone scan performed in January 2003 was normal in the knees and ankles. Upon VA examination in August 2008, knee and ankle examinations were found to be unremarkable, but for the congenital genu varus deformity in the knees. The examiner again noted that the January 2003 bone survey showed no degenerative joint disease in the knees or feet. Congress specifically limits entitlement for service- connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. §§ 1110; 1131. In the absence of proof of present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997) (38 U.S.C.A. § 1131 requires existence of present disability for VA compensation purposes); see also Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996). Such is the case in the instant matter with regard to the claims for knee and ankle conditions. The Board is cognizant that the Veteran maintains that he has had knee and ankle problems since service, and that the Veteran is competent to report his symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). However, the Board can not give great weight and credibility to the Veteran's account in light of the lack of evidence of knee or ankle conditions in service or since his discharge. Id. While the Veteran contends that bilateral knee and ankle conditions have been present since his period of active military service and related thereto, his statements do not constitute competent evidence of a medical diagnosis or nexus opinion. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). The evidence is not in relative equipoise. Accordingly, as the preponderance of the evidence is against the claims for entitlement to service connection for bilateral knee and ankle disabilities, the appeals must therefore be denied. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. Under 38 U.S.C.A. § 5103, VA must notify the claimant of any information or evidence not of record that is necessary to substantiate the claim, as well as what parts of that information or evidence VA will seek to provide, and what parts VA expects the claimant to provide. 38 C.F.R. § 3.159(b) (2009). VA must provide such notice to a claimant prior to an initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ), even if the adjudication occurred prior to the enactment of the VCAA. See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004). Furthermore, the VCAA requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all elements of a claim for service connection, so that VA must specifically provide notice that a disability rating and an effective date will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). VA complied with notification responsibilities in regards to the Veteran's claims for service connection in correspondence sent to the Veteran in December 2002, March 2003, September 2006, and September 2007. These letters notified the Veteran of VA's responsibilities in obtaining information to assist the Veteran in completing his claims and identified the Veteran's duties in obtaining information and evidence to substantiate his claims. Notice pursuant to the Dingess decision was sent in September 2006. VA has also made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claims. 38 U.S.C.A. § 5103A (West 2002). The information and evidence currently associated with the claims file consists of the Veteran's service treatment records, post-service private treatment records, and reports of VA examination. The Veteran has not identified any other evidence which has not been obtained. The Board notes that the Veteran submitted an additional statement and a duplicative copy of the August 2008 VA examination. The Veteran waived initial RO adjudication of the newly submitted evidence. As such, Remand for preparation of a supplemental statement of the case (SSOC) is not necessary. 38 C.F.R. § 20.1304(c). As a final matter, the Board notes the Veteran's representative maintains in their March 2010 statement that the August 2008 VA examination was "inadequate for rating purposes." First, the Board would point out this is not for a claim higher rating. Next, the Board notes the VA examination was ordered for the express purpose of determining whether the Veteran had any currently diagnosed ankle and knee condition. The examiner reviewed the claims folder, took a medical history from the Veteran, and performed a physical examination of the Veteran prior to rendering the opinion that there were no current knee or ankle disabilities. Further, as service connection has not been established, the percentage of disability to be assigned has been rendered moot. Finally, there is no indication the examination was otherwise inadequate and in fact, is more than sufficient to render an opinion on the merits of the Veteran's claims. 38 U.S.C.A. § 5103A. For the foregoing reasons, the Board therefore finds that VA has satisfied its duty to notify and the duty to assist pursuant to the VCAA. See 38 U.S.C.A. §§ 5102 and 5103 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159(b), 20.1102 (2008); Pelegrini, supra; Quartuccio, supra; Dingess, supra. 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 claimant. Thus, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). ORDER Entitlement to service connection for a bilateral knee disability is denied. Entitlement to service connection for a bilateral ankle disability is denied. REMAND As noted in the Introduction, the claim of entitlement to service connection for a right shoulder disability was previously before the Board in August 2008. At that time, the Board determined that additional notice and evidentiary development was necessary. As the remand orders of the Board were not complied with, further remand is mandated due to the RO's failure to follow the directives in the Board's remand. Stegall v. West, 11 Vet. App. 268 (1998). In this regard, the RO was instructed to obtain missing records and provide the Veteran a VA examination for the express purpose of determining whether the Veteran had right shoulder disability that was related to his military service. Thereafter, the RO was instructed to readjudicate the issue on appeal. While the records were obtained and a favorable nexus opinion was rendered in August 2008, it does not appear that a supplemental statement of the case (SSOC) was issued with respect to the matter or a readjudication. The Board notes that a check of the VACOLS system shows that the Veteran has an appeal pending for a higher rating for right shoulder impingement syndrome; however, a disposition for the claim currently before the Board has not been entered in the VACOLS system. Further, none of the adjudicatory records (like a rating decision), if any, have been associated with the claims folder. Accordingly, the claim must be remanded to fully and fairly adjudicate the Veteran's claim for a right shoulder disability. The Board also noted in the Introduction that the Court vacated the Board's August 2006 denial of the claim of entitlement to an initial compensable rating for right ear hearing loss. In its Memorandum Decision, the Court found that the Board failed to discuss whether, as a result of the Veteran's claim in February 2004 that his hearing had worsened, the January 2003 audiological examination no longer adequately represented the current condition. Thus, the Court found that the Board's decision was not supported by an adequate statement of reasons or bases. In accordance with the Memorandum Decision, the Board finds that a remand is necessary in order to afford the Veteran a VA examination in connection with the claim for right ear hearing loss. 38 U.S.C.A. § 5103A (d). In the Veteran's February 2004 substantive appeal, he indicated that he continued to have problems hearing from his right side and had to compensate by always turning his face to be able to understand the conversation. The last VA examination was in January 2003. The Veteran's representative further indicated in March 2010, that the Veteran had progressive decreased hearing in the right ear, as well as tinnitus and vertigo with balance problems. The representative indicated the Veteran sought treatment at VA in December 2008 and January 2009, which showed the Veteran reported difficulty understanding conversation when more than one person spoke, as well as tinnitus. These records have not been associated with the claims folder. Such outstanding records must be obtained upon Remand. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). The Board can not ascertain to what extent the right ear hearing loss disability has increased in severity, if at all, without a new VA examination. The Board is not free to substitute its own judgment for that of such an expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Further, where there is evidence of a material change in the Veteran's condition or as in the instant case, when the Veteran asserts that the service-connected disability in question has undergone an increase in severity since the time of his last VA examination and that he has sought treatment for such, the prior VA examination report may be inadequate for rating purposes and a new VA examination is required. 38 C.F.R. § 3.327(a); See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 402-03 (1997). Accordingly, the case is REMANDED for the following action: 1. The RO should readjudicate the claim for a right shoulder disability in light of all pertinent evidence and legal authority. If the benefit sought on appeal remains denied, the RO should furnish to the Veteran and his representative a supplemental statement of the case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. If the claim is granted, or has been granted, the RO should enter a disposition of the appeal in the VACOLS system and associate all adjudicatory actions, including any rating decisions pertaining to the matter, with the claims folder. 2. The RO should obtain any records of ongoing treatment for right ear hearing loss from the pertinent VA Medical Center, to include those dated in December 2008 and January 2009. All information, which is not duplicative of evidence already received, should be associated with the claims file. All requests for records and their responses should be clearly delineated in the claims folder. 3. After all available records and/or responses from each contacted entity are associated with the claims file, or a reasonable time period for the Veteran's response has expired, the RO should schedule the Veteran for VA audiological examination, at an appropriate VA facility. The entire claims file must be made available to the examiner designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies, if deemed warranted, should be accomplished (with all findings made available to the examiner prior to completion of the report, and all clinical findings should be reported in detail. The audiological examination (with audiometric testing) should be conducted in accord with Training Letter No. 09-05, to determine the current severity of the Veteran's bilateral hearing loss. The examiner must fully describe the functional effects caused by his hearing disability particularly the impact that it has on the Veteran's ability to obtain and maintain gainful employment in his or her final report. The examiner should set forth all examination findings and the complete rationale for the conclusions reached in a printed report. 4. The Veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications, including the address where the notice was sent must be associated with the claims file. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 38 C.F.R. § 3.655 (2009). 5. After completing the requested action, and any additional notification and development deemed warranted, the RO should readjudicate the claim for an initial compensable rating for right ear hearing loss. The VA should document its consideration of whether: (1) "staged rating," pursuant to Fenderson v. West, 12 Vet. App. 119 (1999), (2) referral for an extra-schedular rating under the provisions of 38 C.F.R. § 3.321(b), and (3) a total disability evaluation based on individual unemployability (TDIU) under the holding in Rice v. Shinseki, 22 Vet. App. 447, 452-53 (2009) are warranted. If any benefit sought on appeal remains denied, the RO should furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matters the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). ______________________________________________ S.C. KREMBS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs