Citation Nr: 1120551 Decision Date: 05/26/11 Archive Date: 06/06/11 DOCKET NO. 09-18 689A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a disability involving the left lower extremity, to include residuals of a left femur fracture. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Robert E. O'Brien, Counsel INTRODUCTION The Veteran had almost four months of active service from August 1981 to December 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the VARO in St. Petersburg, Florida, that denied entitlement to the benefit sought. FINDING OF FACT Any current disability involving the left lower extremity is not shown to be attributable to the Veteran's 4 months of active service. CONCLUSION OF LAW The criteria for service connection for disability involving the left lower extremity, to include residuals of a left femur fracture, are not met. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126) imposes obligations on VA in terms of its duties to notify and assist claimants. Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative of any information and 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). VA must inform the claimant of any information and evidence not of record that (1) is necessary to substantiate the claim as to all five elements of a service connection claim (those being (1) Veteran's status; (2) existence of a current disability; (3) a connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted) (See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006)); (2) that VA will seek to provide; and (3) the claimant is expected to provide. 38 U.S.C.A. § 5103(a); Quartuccio, supra at 187; 38 C.F.R. § 3.159(b). In February 2008, the RO sent the Veteran a VCAA compliant letter for service connection. The notice essentially complied with the statutory notice requirements as outlined above. VA notified the Veteran of the evidence obtained, the evidence VA was responsible for obtaining, and the evidence necessary to establish entitlement to the benefits sought, including the types of evidence that would assist in this matter. Also, the Board finds that VA satisfied its duty to assist the Veteran. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Service treatment records have been associated with the claims folder along with VA treatment records. VA afforded the Veteran an opportunity to appear for a hearing. The hearing was held in March 2011 and a transcript of the hearing proceedings is of record and has been reviewed. Additionally, Social Security Administration records were obtained and associated with the claims file. Further, the Veteran was accorded a VA examination with regard to his left lower extremity in April 2008 and the report of the examination is set forth in detail. Also, the examiner had access to and reviewed the entire claims file in conjunction with the examination. In a March 2008 communication the Veteran stated that he had no other information or evidence to give VA to substantiate his claim. Accordingly, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board notes that it has reviewed all the evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F. 3d 1378, 1380 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will provide a summary of the relevant evidence where appropriate. The Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. Pertinent Law and Regulations with Regard to Service Connection Initially, the Board notes the Veteran is a peacetime era Veteran and there is no assertion that his claimed problems are the result of combat. Therefore, the provisions of 38 U.S.C.A. § 1154(b) (West 2002) are not for application in this matter. Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131. Service connection basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. In order to establish service connection for a claimed disorder, the following must be shown: (1) the existence of a present disability; (2) in service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and a disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004); See also Holton v. Shinseki, 557 F. 3d 1362 (Fed. Cir. 2009). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). 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. Watson v. Brown, 4 Vet. App. 309, 314 (1993). Evidentiary Standards Competency is a legal concept determining whether medical or lay evidence may be considered, in other words, whether the evidence is admissible as established from weight and credibility. The former determines whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competent lay evidence means any evidence not requiring that the claimant has specialized education, training, or experience. Lay evidence is competent evidence provided by a person who has knowledge or facts from circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. The Board, as fact finder, must determine the probative value or weight of the admissible evidence. Washington v. Nichols, 19 Vet. App. 362, 369 (2005). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, this will help VA without giving benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Factual Background and Analysis The service treatment records reflect that at the time of enlistment examination in July 1981, no pertinent abnormality was identified. The Veteran was deemed qualified for enlistment. In mid-September 1981, he was seen for a complaint of pain in the left mid thigh region of several days duration. It was indicated he had a mid femoral stress fracture. He was fitted for and issued a cane. He was instructed in proper care in the use of the cane. On October 13, 1981, the Veteran was seen for a complaint of aching in the left leg, although it was less painful. On examination there was no gross edema or tenderness noted. There were no deformities or masses. The diagnosis was stress fracture of the left femur. The Veteran was to return in November. The Veteran was seen in orthopedic outpatient consultation on November 4, 1981, for follow-up purposes. He was discharged from the rehabilitation program and that day it was recommended that he be returned to full duty. Several days later on November 12, 1981, the Veteran complained that the left upper leg had bothered him for the past four days. On observation, no deformities were noted in the leg. He referred to pain in the front of the thigh muscle running down to the knee. There was no swelling. The assessment was questionable muscle strain. The Veteran was again evaluated later the same day. He again complained of pain of four days duration. On observation there was pain upon palpation to the left thigh. There was no redness or swelling. The assessment was given "as by M. O" (that apparently being strain of the left thigh). When the Veteran was seen on November 24, 1981, for an unrelated complaint, there was no reference made to any problems with the left lower extremity. The Veteran signed a statement on November 29, 1981, that acknowledged he had been examined during the past 90 days and was considered physically qualified for separation from active service. The statement also indicated that "no defects have been noted which would disqualify you from the performance of your duties, or entitle you to disability benefits from the naval services." The communication further informed the Veteran that should he believe that the foregoing was not correct, a medical officer would evaluate his claim and, if indicated, he would be referred to an appropriate facility for further study. He was told that to receive disability benefits from the naval services, he had to be found unfit to perform the duties of his grade or rating because of disease or injury incurred while entitled to receive basic pay. He was also told that after separation, any claim for disability benefits had to be submitted to the VA. He indicated by his signature that he understood the statement. The initial claim for disability benefits for a disability of the left lower extremity was not received until February 2008, a time many years following service discharge. The Veteran was accorded a bones examination by VA in April 2008. The claims file was reviewed by the examiner. The Veteran gave a history of stress fracture to the left thigh in 1981 sustained while doing physical training. He stated that he was treated with physical therapy, but eventually was released from service because he asked for his release. He stated that his left leg kept cramping up on him since 1981, but he had not sought medical care because he did not have any health insurance. He also stated that he broke his left foot when working for a cable company in 2002. X-ray studies of the left femur showed there "may be very minimal and early osteoarthritic changes of the left hip joint." There appeared to be slight eburnation and minimal lipping of the cephalad border of the acetabulum. The bones of the hip and the femur were otherwise normal. The knee joint closely appeared to be normal and the soft tissues were also normal. The examiner stated there were no residuals from the healed stress fracture. He stated the Veteran had diabetic neuropathy of the feet which the examiner believed caused most of his discomfort when walking. There was also mild osteoarthritis of the left hip which was not a residual of the stress fracture of the femur. Additional records show the Veteran was evaluated in the emergency room of a private facility in September 2008 after being found by an apparent bystander on the ground with a complaint of leg pain. Apparently he had been drinking. He recalled a history of falling into a ditch, but according to emergency medical services, he was not found anywhere near a ditch. He complained of leg pain with movement. Review of systems was negative, with the Veteran not referring to any history or problems with the left lower extremity. X-ray studies of the left lower extremity showed a spiral fracture of the distal tibia as well as the distal fibula. It appeared that the joint was preserved. There was a comminuted component as well as a spiral component of the distal tibial fracture. The Board acknowledges that the Veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes through his senses. Layno v. Derwinski, 6 Vet. App. 465, 470 (1994). See also Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The absence of contemporaneous medical evidence is a factor in determining credibility of the lay evidence, but lay evidence does not lack credibility merely because it is not accompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F. 3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to his service connection claim); Barr v. Nicholson, 21 Vet. App. at 303 (the Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms). A review of the service treatment records reflects that the Veteran was seen on several occasions for complaints regarding the left lower extremity. He was determined to have a stress fracture involving the left thigh. However, the probative evidence of record demonstrates that he did not experience continuous symptoms of problems with the left lower extremity after service separation. He participated in a rehabilitation program for the stress fracture of the left femur in late 1981, but when he was seen in November 1981, it was determined that the fracture had healed. A medical department communication dated in late November 1981 signed by the Veteran indicated that he had been examined during the past 90 days and was considered physically qualified for separation from service. It was stated that there were no defects noted that would disqualify him from performing his duties. The Veteran indicated at the hearing that he did not seek treatment in the years following service because he could not afford medical care. He has not submitted any other information in his favor such as a medical opinion. The medical opinion that is of record comes from a VA physician who evaluated the Veteran in 2008 and opined that the Veteran currently had no residuals from a healed stress fracture. The examiner found X-ray evidence of mild osteoarthritis of the left hip but stated this was not a residual of the stress fracture of the femur. The examiner attributed most of the Veteran's discomfort when walking to diabetic neuropathy in the feet. There is no medical opinion or evidence to the contrary. The Board finds the opinion from the VA physician to be more probative than the Veteran's statements. That individual had access to the entire claims file before expressing his opinion. He determined that the Veteran did not have a disability of the left lower extremity that was related to his active service many years earlier. In view of the foregoing, the Board finds the persuasive evidence is against a finding of continuity of symptomatology since service separation. In view of the foregoing, the Board finds that service connection is therefore not in effect for a disability involving the left lower extremity, including residuals of a stress fracture of the left femur. ORDER Service connection for a disability of the left lower extremity, to include residuals of a stress fracture of the left femur is denied. ____________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs