Citation Nr: 1036877 Decision Date: 09/29/10 Archive Date: 10/05/10 DOCKET NO. 09-00 008 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for disability(ies) of the left leg, knee, ankle, and/or foot. REPRESENTATION Appellant represented by: National Association for Black Veterans, Inc. ATTORNEY FOR THE BOARD A. L. Tarr, Law Clerk INTRODUCTION The Veteran served on active duty from February 1978 to December 1983. This appeal to the Board of Veterans' Appeals (Board) arose from a September 2007 rating decision in which the RO denied service connection for disabilities of the left ankle, foot, and leg. In May 2008, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in December 2008, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in December 2008. To more accurately reflect the Veteran's contentions and what the RO has actually adjudicated in this case, the Board has rechacterized appeal as encompassing the matter set forth on the title page. In December 2008, the Veteran requested a hearing before a Decision Review Officer (DRO) at the RO. A January 2009 letter informed him that his hearing was scheduled for February 2009. However, via a February 2009 telephone call, the Veteran's representative cancelled the hearing request. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim on appeal have been accomplished. 2. Although the Veteran injured his left ankle in service, the competent evidence does not show any current disability of the left leg or ankle. 2. Left knee and foot disabilities were first diagnosed many years after the Veteran's discharge from service, and the only medical opinion on the question of whether there exists a medical relationship between any such current disability and the Veteran's military service weighs against the claim. CONCLUSION OF LAW The criteria for service connection for disability(ies) of the left leg, knee, ankle, and/or foot are not met. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. 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)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (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(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353-23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in a May 2007 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claim for service connection for left leg, knee, ankle, and foot disabilities, what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA; this letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations. The September 2007 rating decision reflects the initial adjudication of the claim after issuance of this letter. Hence, the May 2007 letter-which meets the content of notice requirements described in Dingess/Hartman and Pelegrini-also meets the VCAA's timing of notice requirement. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Pertinent medical evidence associated with the claims file consists of service and private treatment records, and the reports of August 2007 and March 2009 VA examinations. Also of record and considered in connection with the appeal are various written statements provided by the Veteran, and by his representative, on his behalf. The Board also finds that no additional RO action to further develop the record in connection with the claim for service connection is warranted. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter on appeal, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Service connection may be granted 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 may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be presumed, for certain chronic diseases, such as arthritis, which develop to a compensable degree (10 percent for arthritis) within a prescribed period after discharge from service (one year for arthritis), although there is no evidence of such disease during the period of service. This presumption is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Also, while the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree. 38 C.F.R. § 3.307(c). Considering the pertinent evidence in light of the above-noted legal authority, the Board finds that the record presents no basis for a grant of service connection for any disability of the left leg, knee, ankle, and/or foot. The Veteran's service treatment records show that the Veteran sustained an injury to his left ankle while playing basketball during service in April 1983. The impression was a Grade 2 left ankle sprain, and Veteran was treated with a hard cast and required the use of crutches for several weeks. Service treatment records are negative for any further complaints, findings, or diagnosis of any further left ankle problems, or any problems associated with the left leg, knee, and/or foot. The Veteran was afforded a VA examination in August 2007. While the Veteran complained of pain and tenderness to palpation just posterior to the medial malleolus, the examiner's evaluation of the left ankle revealed no distinct bony tenderness, full range of motion, no effusion, and no crepitus. X-ray of the left ankle showed a plantar calcaneal spur with no other abnormalities. The impression was subjective pain but a very stable joint and relatively normal ankle. The examiner stated that the Veteran's ankle pain may be related to the past sprain if the Veteran had continued trauma to the ankle. The first documented record of treatment for any left lower extremity problem is not until February 2008, 24 years after service. The February 2008 x-ray report indicated a clinical history of inflammatory polyarthritis. X-rays of the feet reportedly showed bilateral hallux valgus and metatarsus varus and osteoarthritis left first MTP joint. The impression of the knees was tibial and patellar osteophytes with 3rd degree genu varum right knee and loss of genu valgus left knee. In a March 2008 letter, the physician who ordered the x-rays stated that examination findings were consistent with degenerative joint disease involving multiple joints of the body. The physician indicated that the Veteran's labs were within normal limits and x-rays showed osteoarthritis of the joints without any erosions. There was no evidence of underlying inflammatory arthritis. The private physician did not offer an opinion as to the etiology of the above mentioned disabilities. The Veteran underwent a second VA examination in March 2009. At the examination, the Veteran reported pain in his left knee, ankle, and foot, as well as left foot redness, swelling, giving out, heat, lack of endurance, weakness, and stiffness. The examiner's impression was left knee osteoarthritis, arthritis and halux valgus of the left foot at the metatarsal phalangeal (MTP) joint, and a normal left ankle. The VA examiner opined that the Veteran's current left knee and foot disability was not likely related to service. First addressing the left ankle and/or left leg, the Board points out that there is no disability of the left ankle or left leg upon which to predicate a grant of service connection. Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C.A. § 1131. In this case, the Veteran clearly had a left knee injury in service; however, current left ankle disability is not shown. While the Veteran has reported left ankle pain-and the August 2007 VA examiner attempted to render an opinion pertaining only to ankle pain-the Board emphasizes that pain alone, without evidence of underlying pathology, does not constitute a disability for compensation purposes. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999); Evans v. West, 12 Vet. App. 22, 31-32 (1998). By contrast, the evidence of record clearly establishes that the Veteran has left knee osteoarthritis and arthritis and halux valgus of the left foot at MTP) joint. However, the record simply fails to establish that either current disability is medically related to service. Here, the post-service evidence reflects no documented indication of left knee or foot disability for 24 years after active military service. Clearly, such time period is well beyond the presumptive period for establishing service connection for arthritis as a chronic disease. See 38 C.F.R. §§ 3.307, 3.309. The Board also points out that the passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Moreover, the only medical opinion to address the etiology of the current knee and foot disabilities-that of the March 2009 VA examiner-is adverse to the claim. The Board notes that the examiner rendered this opinion after thoroughly reviewing the claims file and medical records and examining the Veteran. The examiner also considered the Veteran's assertion that he has current disability as a result of his in-service left ankle sprain. The examiner provided a rationale for his opinion; stating that the Veteran was able to resume normal work activities with the Army following his left ankle sprain in April 1983, the Veteran did not receive care for any left lower extremity disability for many years after service, and the Veteran performed physically demanding activities until fairly recently. Furthermore, the examiner stated that there is no evidence that the Veteran's in-service left ankle injury either precipitated or aggravated an underlying condition and his in- service left ankle sprain was not to a level of severity to result in the arthritis noted in the left knee and left foot. Rather, the examiner concluded that the Veteran's arthritis of the left knee and foot are the result of the normal aging process. The Board points out that the VA examiner's opinion constitutes the only competent opinion to address the etiology of the Veteran's current knee and foot disabilities, and that neither the Veteran nor his representative have presented or identified any contrary, competent evidence or opinion. In addition to the medical evidence, in adjudicating this claim, the Board has considered the assertions of the Veteran and his representative; however, to whatever extent these assertions are offered in an attempt to establish current left ankle or leg disabilities, or that there exists a medical nexus between current knee or foot disability, such attempt must fail. Matters of diagnosis and etiology are matters within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the Veteran and his representative are not shown to be other than laypersons without the appropriate medical training and expertise, neither is competent to render a probative (persuasive) opinion on a medical matter. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Hence, the lay assertions in this regard have no probative value. For all the foregoing reasons, the Board finds that the claim for service connection for disability(ies) of the left leg, knee, ankle, and/or foot is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the- doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for disability(ies) of the left leg, knee, ankle, and/or foot is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs