Citation Nr: 1036063 Decision Date: 09/24/10 Archive Date: 09/30/10 DOCKET NO. 05-28 833A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a left ankle disorder. 2. Entitlement to service connection for a left leg disorder, including as secondary to the left ankle disorder. 3. Entitlement to service connection for hypertension, including as secondary to Type II Diabetes Mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tiffany Sykes, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1964 to August 1968. This appeal to the Board of Veterans' Appeals (Board) is from August 2004 and July 2005 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The August 2004 decision denied the Veteran's claims for service connection for left ankle and left leg disorders, but granted his claim for service connection for Type II Diabetes Mellitus as a presumed residual of his presumed exposure to herbicides (Agent Orange) in Vietnam. The RO also, in relevant part, temporarily deferred deciding his claim for service connection for hypertension, including as secondary to the diabetes. But the RO has since denied this other claim in the July 2005 decision that also is at issue in this appeal. Since, however, they require further development, the Board is remanding all of the claims to the RO via the Appeals Management Center (AMC). REMAND The Veteran attributes all of these claimed disabilities to his military service, either directly in the case of the left ankle disorder, or indirectly in the case of the left leg disorder and hypertension because he, instead, is alleging they are secondary to service-connected disabilities (namely, concerning his hypertension, his Type II Diabetes Mellitus that already has been service connected and, concerning his left leg disorder, his left ankle disorder that should be service connected). More specifically, he claims that his left ankle was fractured during service and that he is still suffering from residuals of that injury, which, in turn, has caused a left leg disorder. He additionally claims that his hypertension is due to his service- connected Type II Diabetes Mellitus. But before addressing the merits of these claims, the Board finds that additional development of them is required. First, the Veteran needs to receive notice regarding the downstream disability rating and effective date elements of these claims. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Secondly, according to applicable regulation, VA must provide the Veteran a medical examination when there is (1) competent evidence of a current disability or persistent or 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 VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Regarding these requirements as they relate to the claim of entitlement to service connection for a left ankle disorder, there is no disputing the Veteran has a current diagnosis of degenerative joint disease of this ankle, as evidenced by his January 2004 VA outpatient treatment records. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (indicating service connection presupposes a current diagnosis of the condition claimed, to at least confirm the Veteran has it, and that, without this minimum level of proof, there can be no valid claim). Consequently, the determinative issue is whether this condition is attributable to his military service. 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, there is some suggestion the degenerative joint disease (i.e., arthritis) in this ankle may be the result of his military service, but there is insufficient competent medical evidence on file for the Board to make a sufficiently definitive determination in this regard. Additionally, while the Veteran's service treatment records (STRs) are unavailable for consideration, his VA outpatient treatment records and lay statements that he provided repeatedly reference an injury to this ankle while he was in service. Specifically, he claims that he fractured this ankle while in service and has suffered from residuals of that injury ever since, so has chronic resultant disability. His VA treatment records dated from July 2004 to January 2005 reference surgery performed on this ankle since service, in December 2004. However, these records are not in the claims file for consideration and, therefore, must be obtained. 38 C.F.R. § 3.159(c). A VA compensation examination and opinion also are needed to assist in determining the etiology of this disorder, including especially in terms of whether it is a residual of a fracture during the Veteran's military service as he is alleging. See McClendon, 20 Vet. App. at 83. Concerning his claim for service connection for a left leg disorder, this claim is entirely predicated on the notion that his left leg disorder is secondary to his left ankle disorder - meaning proximately due to, the result of, or chronically aggravated by this left ankle disorder (and assuming this left ankle disorder is first determined to be a service-connected disability). 38 C.F.R. § 3.310(a) and (b) (2009). See also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Board, therefore, need not also address the alternative possibilities of either direct or presumptive incurrence of this left leg disorder in service as he is not alleging these alternative theories of entitlement and the record does not otherwise show or suggest such entitlement. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004) (indicating all theories of entitlement, direct, presumptive and secondary, ordinarily must be considered when determining service connection). There is some indication the Veteran has a left leg disorder. His VA treatment records from July 2004 indicate "he walks with an obvious deformity and says the pain has become so bad he cannot stand it anymore." However, there is no specific diagnosis of an underlying left leg disorder to account for this deformity and pain, which is perhaps the most fundamental requirement for any claim for service connection. See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (indicating service connection presupposes a current diagnosis of the condition claimed, to at least confirm the Veteran has it, and that, without this minimum level of proof, there can be no valid claim). See also Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328, 1332 (1997) (holding that VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability). But see, too, McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim). Mere pain, alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). Therefore, a specific determination as to whether the Veteran has a current left leg disorder is needed. And if an underlying disorder is identified, a medical opinion also is needed concerning whether his left ankle disorder (if, itself, determined to be the result of his military service - and, in particular, the fracture mentioned so service connected) has in turn caused or aggravated this left leg disorder. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 11 Vet. App. 148, 158 (1998). Lastly, turning to the claim for hypertension, the same principles of direct, presumptive and secondary service connection potentially apply. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309(a), 3.310(a) and (b) (2009). There is no disputing the Veteran has hypertension since his VA treatment records from December 2003 to May 2005 repeatedly list this diagnosis. Moreover, a July 2005 letter from a VA treating physician indicates the Veteran is under her care for treatment of his diabetes and hypertension. There are suggestions hypertension may have been diagnosed as far back as during the 1970s, according to the self-reported history of this condition the Veteran provided during his October 2004 VA compensation examination. But regarding the claimed correlation between the hypertension and diabetes, the October 2004 VA compensation examiner concluded it was unlikely the hypertension was secondary to the diabetes, rather, more likely idiopathic in nature. On the other hand, the July 2005 letter from the VA treating physician states that, in her opinion, it is as likely as not that the Veteran's hypertension is secondary to his diabetes. These conflicting medical opinions require the Board to try and reconcile this discrepancy of whether the Veteran's hypertension has anything to do with his service-connected diabetes. See McQueen v. West, 13 Vet. App. 237 (1999) (indicating, like in Wallin and Velez, supra, that competent medical nexus evidence is required to associate a secondary condition with a service- connected disability). The VA examiner designated to provide this additional medical comment also needs to indicate whether the Veteran's service- connected diabetes has alternatively chronically (meaning permanently) aggravated his hypertension because that, too, is a viable alternative basis for granting secondary service connection, and the October 2004 compensation examiner did not provide any comment on this additional possibility. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439 (1995). Also, although not specifically alleged, since there are suggestions the Veteran had hypertension even way back during the 1970s, still additional medical comment is needed concerning the likelihood he had this condition either during his military service from August 1964 to August 1968 or within one year of his discharge, so by August 1969. The Board will then have the evidence and information needed to additionally address whether direct and presumptive service connection for this condition is alternatively warranted (that is, aside from the alleged secondary basis of entitlement). Accordingly, these claims are REMANDED for the following additional development and consideration: 1. Send the Veteran a Veterans Claims Assistance Act (VCAA) notice letter advising him of the downstream disability rating and effective date elements of his claims to comply with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). 2. Obtain the Veteran's treatment records regarding his left ankle surgery in December 2004 from the VAMC in Tampa, Florida. According to the July 2004 VA treatment records from the Tampa VAMC, he was scheduled to have surgery at this facility in December 2004. Moreover, the January 2005 Tampa VAMC records indicate he presented to a psychiatric appointment with a cast on his left leg. If these requested records are unavailable, or the search for them otherwise yields negative results and further attempts to obtain these records would be futile, this must be documented in the claims file and the Veteran notified in accordance with 38 C.F.R. § 3.159(c)(2), (e)(1). 3. After obtaining these outstanding VA treatment records, schedule the Veteran for a VA compensation examination to determine the nature and etiology of his left ankle disorder. He is hereby advised that failure to report for this scheduled VA examination, without good cause, may have adverse consequences on this pending claim. 38 C.F.R. § 3.665. The examination should include any diagnostic testing or evaluation deemed necessary. The claims file, including a complete copy of this remand, must be made available for review of the Veteran's pertinent medical and other history. Based on physical examination and comprehensive review of the claims file, including a complete copy of this remand, the designated VA examiner is asked to comment on the likelihood (very likely, as likely as not, or unlikely) the Veteran's left ankle disorder initially manifested during his military service from August 1964 to August 1968, or, since it reportedly involves arthritis, within one year of his discharge (meaning by August 1969), or is otherwise attributable to his service, and especially to an alleged fracture. In making these determinations, the VA examiner should be mindful that, in Dalton v. Nicholson, 21 Vet. App. 23 (2007), the Court determined an examination was inadequate where the examiner did not comment on the Veteran's report of relevant injury in service and, instead, relied on the absence of evidence in the STRs to provide a negative opinion. Additionally, if the examiner determines the left ankle disorder is attributable to the Veteran's military service, in the particular the type of injury claimed (a fracture), the examiner is then asked to determine whether the Veteran also has a current left leg disorder to account for his complaints of pain and discomfort in this extremity. If he does, the examiner must specify the diagnosis and indicate the likelihood (very likely, as likely as not, or unlikely) this left leg disorder is proximately due to, the result of, or chronically aggravated by the left ankle disorder. The term "as likely as not" does not mean merely within the realm of medical possibility, rather that the weight of medical evidence both for and against a conclusion such as causation is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner must discuss the rationale of these opinions, whether favorable or unfavorable, based on the findings on examination and information obtained from review of the record. 4. Also schedule the Veteran for another VA compensation examination for additional medical comment concerning the nature and etiology of his hypertension. He is hereby advised that failure to report for this scheduled VA examination, without good cause, may have adverse consequences on this pending claim. 38 C.F.R. § 3.665. The examination should include any diagnostic testing or evaluation deemed necessary. The claims file, including a complete copy of this remand, must be made available for review of the Veteran's pertinent medical and other history. Based on physical examination and comprehensive review of the claims file - including a complete copy of this remand, the report of the prior October 2004 VA examination, and the July 2005 letter from the VA treating physician, this VA examiner is asked to indicate the likelihood (very likely, as likely as not, or unlikely) the Veteran's hypertension is either proximately due to, the result of, or chronically aggravated by his already service-connected Type II Diabetes Mellitus. [Note: since the diabetes is the service-connected disability, it must have caused or aggravated the hypertension, not vice versa.] If the examiner determines the Veteran's hypertension is not proximately due to, the result of, or chronically aggravated by his service-connected Type II Diabetes Mellitus, the examiner is then asked to determine additionally whether the hypertension alternatively initially manifested during the Veteran's military service from August 1964 to August 1968, or within one year of his discharge (so by August 1969), or is otherwise attributable to his service, bearing in mind that he alleges to have had hypertension since at least the 1970s. In considering this claimed lengthy history of this condition, the VA examiner should note that, in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), the Court addressed lay evidence as potentially competent to support the presence of a disability, during service and since, even where not corroborated by contemporaneous medical evidence. However, the Board will ultimately have to decide whether the Veteran's lay testimony concerning this purported lengthy history of his hypertension, even if competent, is also credible to ultimately have probative value. See Rucker v. Brown, 10 Vet. App. 67 (1997) and Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). The term "as likely as not" does not mean merely within the realm of medical possibility, rather that the weight of medical evidence both for and against a conclusion such as causation is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examination should include any necessary diagnostic testing or evaluation needed to make these important determinations. The examiner must discuss the rationale of the opinion, whether favorable or unfavorable, based on the findings on examination and information obtained from review of the record. 5. Then readjudicate the claims in light of the additional evidence. If the claims are not granted to the Veteran's satisfaction, send him a supplemental statement of the case (SSOC) and give him an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of the claims. The Veteran has the right to submit additional evidence and argument concerning the claims the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The 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). _________________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2009).