Citation Nr: 1036737 Decision Date: 09/28/10 Archive Date: 10/05/10 DOCKET NO. 06-39 409 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a left leg disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The Veteran had active service from November 1950 to October 1952. He thereafter served in the Air Force Reserves until a medical retirement in January 1987, followed by permanent retirement in January 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The RO in Houston, Texas, has processed the case since that time. The previously denied claim was reopened and remanded by the Board in July 2009. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT Currently diagnosed degenerative joint disease of the left ankle and knee are unrelated to service, or to service-connected right calcaneal fracture. CONCLUSION OF LAW The criteria for service connection for a left leg disability are not met. 38 U.S.C.A. §§ 101(22), 106(d), 1110, 1131 (West 2002); 38 C.F.R. §§ 3.6(c), 3.303, 3.307, 3.309, 3.310 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In a letter dated in March 2006, prior to the adjudication of the claims, the RO notified the Veteran of the information necessary to substantiate the service connection claims on appeal, and of his and VA's respective obligations for obtaining specified different types of evidence. He was told that the evidence must show a relationship between his current disability and an injury, disease or event in military service. He was advised of various types of lay, medical, and employment evidence that could substantiate his service connection claims. He was informed of the elements required to establish service connection on a secondary basis, including y aggravation. He was provided information regarding assigned ratings and effective dates. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Although the letter was not sent until after the initial adjudication of the claim, it was followed by readjudication and the issuance of supplemental statement of the case in June 2010. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). Under the VCAA, the VA also has a duty to assist the Veteran by making all reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2009). Service treatment records have been obtained. VA and identified private records have been obtained. The Social Security Administration (SSA) informed VA that records pertaining to the Veteran had been destroyed. A VA examination was obtained concerning the issues of service connection for a left leg disability; the examination described the disabilities in sufficient detail and based on sufficient evidence for the Board to make an informed decision. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Thus, the Board finds that all necessary notification and development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Service Connection The Veteran contends that he has a chronic left leg disability that either began at the same time as the right calcaneal fracture in October 1985, or that the disability is secondary to the service-connected right calcaneal fracture. Service treatment records document that the Veteran fell in October 1985 during a drilling period in the Reserves, and fractured his right calcaneus. The service records (either for October 1985, or for any other period of active or Reserve service) are silent for any mention of left leg problems, except by history; an October 1986 record notes that the Veteran sustained a left ankle fracture in a June 1969 MVA, for which he underwent open reduction and internal fixation. At a June 1990 VA examination, the Veteran complained of arthritis affecting both knees; no confirming diagnosis was rendered. VA treatment records for January 1991 to July 2005 documenting treatment for degenerative changes in the left leg. The Veteran contends that his left leg disability either began at the same time as the right calcaneal fracture in October 1985, or that the disability is secondary to the service-connected right calcaneal fracture. The evidence includes an August 1978 statement by J. Gamboa, M.D., as well as other statements by the same physician written in 1980. Dr. Gamboa explained that he had treated the Veteran since 1967, and that the Veteran had been involved in an MVA which included injuries to the left ankle and fibula; Dr. Gamboa did not mention the left knee. In various statements written in 1980, Dr. Gamboa referred to the left ankle and left fibula injuries, but did not reference any left knee problems. VA treatment records document treatment for a number of years for left ankle arthritis, and since 1996 for degenerative joint disease affecting the left knee. The Veteran was afforded two VA examinations in August 2006. At the first, the examiner concluded that he could not find a causal relationship between the service-connected right calcaneal fracture and the Veteran's claimed left leg disorder. At a second August 2006 examination, the examiner concluded that the service-connected right calcaneal fracture did not cause the left knee disability, explaining that the more likely causes of the left knee disorder included the left ankle injury in 1969. At a VA examination in December 2009, the Veteran was diagnosed as having degenerative joint disease of the left ankle and degenerative joint disease of the left knee. The examiner opined that the Veteran's current left knee and left ankle disabilities were less likely than not related to active service, reserve service, or caused by or a result of fractured right calcaneus. The examiner explained that the right calcaneal fracture healed in good position; the primary problem was the left ankle fracture from 1969 that had led to degenerative joint disease in the ankle and left knee. Service connection may be established for 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. Service connection for certain chronic diseases, such as degenerative joint disease, will be rebuttably presumed if manifest to a compensable degree within one year after separation from active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In addition, service connection may also be granted for disability resulting from disease or injury incurred in or aggravated while performing active duty for training (ACDUTRA). 38 U.S.C.A. §§ 101(22), 106(d), 1110, 1131; 38 C.F.R. § 3.6(c), 3.303. In a decision as to service connection based on a period of ACDUTRA, the primary distinction is that the presumptive provisions in the law, which require active service, do not apply to ACDUTRA. See Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). As to inactive duty training (INACDUTRA), service connection may be granted only for disability resulting from injury incurred in or aggravated while performing INACDUTRA, and not for disease. See 38 U.S.C.A. §§ 101(22)-(24), 106(d), 1110, 1131; 38 C.F.R. § 3.6(c), (d), 3.303. To establish service connection, a veteran must show (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the current disability and the in-service disease or injury (or in-service aggravation). Holton v. Shinseki, 557 F.3d 1362, 1355 (Fed. Cir. 2009); Shedder v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board observes that service connection is currently in effect for right calcaneal fracture, rated 20 percent disabling. Service connection may be granted on a secondary basis for a disability which is proximately due to or the result of an established service- connected disorder. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder which is aggravated by a service- connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(c) (2009); see Allen v. Brown, 8 Vet. App. 374 (1995). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Lay assertions, however, may serve to support a claim for service connection by supporting the occurrence of lay- observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.303(a); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). 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. Jandreau, at 1377. Concerning the Veteran's assertion that he developed a left leg condition at the same time as the injury in 1985, the Board finds this assertion outweighed by the evidence which shows that a left leg condition began in 1969, and the 1985 evidence following the injury does not show complaints pertaining to the left leg. Thus, to that extent, his statements are not credible. In this regard, the Veteran is attempting to recollect events which occurred many years earlier. Medical evidence is required to establish secondary service connection in this case, and there is no medical evidence indicating such a relationship. Indeed, three VA examination have resulted in the conclusion that the Veteran's left leg disability is unrelated to the service-connected right ankle disability. Although no examiner expressly stated that the left leg condition was not aggravated by the service-connected right ankle disability, the Board finds that the examiner's statement that a left leg disability did not result from the right ankle condition because the right ankle fracture healed in good position to be sufficient to address that aspect of the claim, because the rationale, in essence, explains why the right ankle did not affect the left leg condition. Accordingly, the preponderance of the evidence is against the claim. In reaching this determination, the Board is mindful that all reasonable doubt is to be resolved in the Veteran's favor. The preponderance of the evidence, however, is against the claim, and the claim must be denied. 38 U.S.C. § 5107(b); see Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a left leg disability is denied. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs