Citation Nr: 1122091 Decision Date: 06/07/11 Archive Date: 06/20/11 DOCKET NO. 08-16 700 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for residuals of a left tibia stress fracture, a left calf strain, and shin splints. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD M.L. Shields, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1989 to September 1993, including in the Southwest Asia theater of operations during Operation Desert Storm. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Roanoke, Virginia Department of Veterans Affairs (VA) Regional Office (RO). In his June 2008 VA Form 9, the Veteran indicated he wanted a Central Office hearing in Washington, DC; however, the Veteran withdrew his request by correspondence dated June 2009. See 38 C.F.R. § 20.704(e) (2010). This case was previously remanded by the Board in October 2009 for further development. The case is once again before the Board for appellate consideration. A review of the record appears to have reasonably raised the issue of entitlement to service connection for pes planus (based on a theory of aggravation of a preexisting condition). Since this discrete issue has not been developed and adjudicated by the RO, the issue of service connection for pes planus is not a part of the current appeal and is referred to the RO for appropriate action. FINDING OF FACT The Veteran's currently diagnosed disorder of the left leg and ankle was not manifested during service or for many years thereafter and is not related to the tibia stress fracture, the shin splints, or the left calf strain he sustained during military service. CONCLUSION OF LAW The criteria for establishing service connection for residuals of a left tibia stress fracture, a left calf strain, and shin splints are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted if it is shown that the Veteran suffers from a disability resulting from an injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, in active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). In addition, service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When a claimant seeks service connection for a disability, due consideration shall be given to the supporting evidence in light of the places, types and circumstances of service, as evidenced by service records, the official history of each organization in which he served, his military records and all pertinent medical and lay evidence. 38 C.F.R. § 3.303(a) (2010). The Veteran contends that his current left ankle condition was caused by his left tibia stress fracture while he was on active duty and was not caused by his pes planus. The Veteran has maintained that if his ankle condition was caused by his pes planus, he would be seeking medical treatment for both ankles; rather, he is only seeking medical treatment for his left ankle. The Veteran asserts that after applying the benefit of the doubt rule, there is sufficient evidence to support a grant of his claim. The Veteran's service treatment records show that the December 1988 enlistment examination revealed the Veteran had moderate pes planus. October 1989 service medical records indicate the Veteran was diagnosed with posterior tibia shin splits and a left calf strain. October 1989 and November 1989 x-ray reports diagnosed the Veteran with a stress fracture of the distal tibia posteriorly. November 1989 service medical records indicated the Veteran's stress fracture, shin splints and left calf strain were healing. A December 1989 service medical record indicated no weakness or pain upon palpation of the left calf and the Veteran was diagnosed with mild tenderness of the left calf. A January 1990 x-ray report indicated the Veteran's left tibia stress fracture had healed with no acute fracture seen on the x-ray. On separation examination in June 1993, the Veteran reported no pertinent complaints relative to his left leg, noted that he was in good health, and his lower extremities, feet, and musculoskeletal and neurologic systems were normal on clinical evaluation. The Veteran submitted a private medical record dated March 12, 2004, from Dr. M.H., M.D., whereby the Veteran was diagnosed with left ankle swelling and arthralgia. Dr. M.H. noted the range of motion of the Veteran's ankle to be normal and that the left ankle was stable. In a March 25, 2004 private medical record, Dr. H.M. diagnosed the Veteran with left ankle pain due to chronic bilateral flat feet (pes planus). The Veteran submitted another private medical record dated April 2004, from Dr. E.M., M.D., whereby the Veteran complained of pain to his left ankle without suffering an injury. The Veteran reported the pain began approximately two weeks prior to the examination and that the severity of the pain was a 10 on a scale of 1 to 10. The Veteran also stated that the pain is at its worst when he is standing and it had become very difficult for him to do his job due to this pain. Physical examination of the Veteran's left anterior and inferior lateral malleoulus showed evidence of capsulitis/neuritis with pain on palpation and mild edema were noted by Dr. E.M. The Veteran's gait was noted to be antalgic and his left lower extremity was limp. Muscle strength and muscle tone were noted to be normal and the Veteran's bones, joints and muscles were found to be unremarkable. The range of motion of the Veteran's left ankle showed normal plantar flexion and dorsiflexion. Dr. E.M. noted the presence of severe pain upon palpation of the left foot anterior inferior lateral malleolar region and mild pain on palpation of the peroneous brevis proximal to the insertion of the left foot. Dr. E.M. also noted moderate pain proximal to the left ankle joint in the diastasis of the tibia-fibula. An x-ray of the Veteran's left foot revealed calcification between the tibia-fibula proximal to the ankle. Based on the history supplied by the Veteran in addition to the results of the physical examination and x-ray, Dr. E.M. diagnosed the Veteran with mononeuritis, a strain of the anterior talofibular ligament, capsulitis and peroneal brevis tendonitis. A March 2007 VA treatment record indicates the Veteran reported he continues to experience intermittent pain in left leg and foot when engaging in prolonged walking or running. After a physical examination, the Veteran was diagnosed with pes planus and it was noted there was no swelling or edema in the left ankle. In December 2010, the Veteran was scheduled for a VA examination to take place in March 2011 at the Hampton VA medical center. A March 2011 report indicates the Veteran failed to report to the VA examination, and the Veteran did not indicate why he missed the examination nor did he indicate he wished to re-schedule the examination to a later date. 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. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not given to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In order to establish service connection for a claimed disorder, there must be (1) evidence of a current disability; (2) medical or lay evidence of the in-service incurrence or aggravation of a disease or injury; and (3) medical or competent lay evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). The Board finds, based on the April 2004 private medical report by Dr. E.M., that the Veteran has a current disability of the left leg and ankle, thus meeting the first element necessary to establish service connection. With respect to the second required element, namely, the existence of an in-service incurrence of a disease or injury, the Board notes the Veteran's service medical records indicate diagnoses of a stress fracture of the distal tibia posteriorly, a left calf strain, and posterior tibia shin splints. Accordingly, the Board finds, based on the aforementioned evidence, that injuries to his left leg were noted in service, thus meeting the second element necessary to establish service connection. With respect to the third required element, a medical nexus between the current diagnosis and the in-service occurrence, the Board finds that a medical nexus does not exist. While the Veteran has stated his belief that his current left ankle condition was caused by the stress fracture to his left tibia during active duty, as a layperson he is not qualified to furnish medical opinions or diagnoses. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (lay evidence is competent when a layperson is competent to identify a medical condition, when a layperson is reporting a contemporaneous medical diagnosis, or when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional) (citing Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). See also Jandreau, 492 F.3d at n. 4 (a layperson may be competent to identify a condition where the condition is simple, like a broken leg, but not if the condition is, for example, a type of cancer). The etiology of a disability of the left leg and ankle, namely mononeuritis, anterior talofibular ligament strain, peroneal brevis tendonitis or capusulitis, is not a simple identification that a layperson is competent to make. Therefore, the Veteran is not competent to provide his opinion on the etiology of any current disability involving his left leg and ankle. The Board thinks it worth noting that the Veteran failed to cooperate with the VA's efforts to assist him in the development of evidence in connection with his claim by failing to report to a VA medical examination without good cause in March 2011. The Board emphasizes that the duty to assist is not a one-way street. Olsen v. Principi, 3 Vet. App. 480, 483 (1992). The Board further notes that when entitlement to a benefit cannot be established without a current VA examination and a claimant, without good cause, fails to report for such examination, the claim is to be rated based on the evidence of record. 38 C.F.R. § 3.655(a)-(b). Based on these facts, the Board has no alternative but to decide the claim on the basis of the evidence already of record. As mentioned above, the Veteran's October 1989 and November 1989 x-ray reports indicated a diagnosis of a stress fracture of the distal tibia posteriorly, shin spints, and a left calf strain. Furthermore, November 1989 service medical records indicated these conditions were healing. A January 1990 x-ray report indicated the Veteran's left tibia stress fracture had healed and the Veteran noted in his June 1993 separation examination to be in good health and made no complaints about his left leg or ankle. It should be emphasized that the examination of the lower extremities and musculoskeletal and neurologic systems, upon separation from service, was consistently found to be negative for recorded complaints or pathology of the left leg or ankle. In April 2004, the Veteran reported to Dr. E.M. that the pain in his left ankle began roughly two weeks prior to that examination. Furthermore, in its letter dated December 2010, the Hampton VA medical center indicated that it did not have any records on file from September 1, 1993, through March 28, 2007. Lastly, the Veteran indicated in his February 2010 letter that he had no other information or evidence to give VA to support his claim and asked VA to decide his claim as soon as possible. Taken together, the above evidence reveals the Veteran suffered a stress fracture to his left tibia in October 1989, which healed in January 1990, showing no finding of any residuals of a stress fracture, a left calf strain, or shin splints on separation examination in June 1993. The earliest clinical indication of a disorder of the left leg and ankle was documented in 2004, almost 11 years following his separation from service, when he was diagnosed with a condition that affected his left leg and ankle by Dr. E.M. The Board points out that the passage of many years between separation from active service and any medical complaints or documentation of a claimed disability is a factor that weighs heavily against a claim for service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Due to the extensive lapse in time between the Veteran's stress fracture to his left tibia, shin splints, and left calf strain and his current left leg and ankle condition, the Board can and does attach significant credibility, probative value and weight to the contemporaneous lay and medical evidence provided in the service treatment records and at the time of the April 2004 private examination. In fact, the Veteran, himself, reported no problems with his left leg or ankle when he presented for separation examination in June 1993; and he likewise indicated to Dr. E.M. on private examination in April 2004 that he had no memory of an injury and his left ankle pain started two weeks prior to that examination. Indeed, the history provided by the Veteran contemporaneous to his service separation and at the time of his 2004 private examination clearly refutes any belated statements of left leg and ankle symptoms since service, which he now implies in connection with his claim for compensation. As such, the Board concludes that the preponderance of the evidence is against this claim. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is inapplicable, and the claim for entitlement to service connection for residuals of a left tibia stress fracture, a left calf strain, and shin splints must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and to Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found in part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2010); 38 C.F.R. § 3.159 (2010). 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). The elements of proper notice include informing the claimant of any information and evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159 (b)(1). Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim, defined to include: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule); see also Shinseki v. Sanders, 129 S.Ct. 1696 (2009). VA has met its duty to notify the Veteran concerning his claim. In this case, the Veteran was notified of the types of information and evidence necessary to substantiate the claim for service connection, as well as the division of responsibility between the Veteran and VA for obtaining that evidence, by an April 2007 letter, before the adverse rating that is the subject of this appeal. This letter also informed the Veteran of how disability ratings and effective dates are assigned, as required by Dingess v. Nicholson, supra. VA has met its duty to assist the Veteran in developing the evidence to support his claim. The record contains the Veteran's service medical records, VA treatment records and private medical records. Statements of the Veteran and his representative have been associated with the record as well. Neither the Veteran nor his representative has indicated that there are any available additional pertinent records to support the Veteran's claim. In its October 2009 remand, the Board instructed the RO to do the following: (1) obtain all outstanding records of evaluation and/or treatment of the Veteran from the Hampton VA medical center since September 1993; (2) send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the Veteran's appeal that is not currently of record and the letter should also clearly explain to the Veteran that he has a full one-year period to respond-if any records sought were not obtained, the RO was instructed to notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them and describe further action to be taken; and (3) after all the available records and/or responses from each contacted entity have been associated with the claims file, or the one-year time period for the Veteran's response has expired, schedule the Veteran for a VA orthopedic examination in order to determine whether the Veteran's diagnosed left ankle condition was related to his military service. In accordance with Instruction (1), the RO sent a letter dated January 2010 to the Hampton VA medical center asking that all treatment records and radiological reports from September 1, 1993 through March 28, 2007 be sent to the RO and also asked the Hampton VA medical center to provide a negative response if no such records is found. In a letter dated December 2010, Hampton VA medical center issued a letter to the RO indicating that it did not have any records on file for the aforementioned period of time. The only VA treatment records from the Hampton VA medical center present in the Veteran's claims file were from September 2007 to November 2009. Pursuant to Instruction (2), the RO sent a letter dated January 2010 to the Veteran requesting that the Veteran provide sufficient information and authorization to enable the RO to obtain any additional evidence pertinent to the Veteran's appeal that is not currently of record and the letter also explained to the Veteran that he had a one-year period to respond to this request. In a letter dated February 2010, the Veteran indicated that he has no other information or evidence to give VA to support his claim and to decide his claim as soon as possible. Lastly, as ordered in Instruction (3), in December 2010, the Veteran was scheduled for a VA examination take place in March 2011 at the Hampton VA medical center. A March 2011 report indicates the Veteran failed to report to the VA examination and the Veteran did not indicate why he missed the examination nor did he indicate he wished to re-schedule the examination to a later date. The Veteran failed to cooperate with the VA's efforts to assist him in the development of evidence in connection with his claim by failing to report to a VA examination in March 2011. As such, the Board had no alternative but to decide the claim on the basis of the evidence already of record. The Board is also satisfied that the development requested by its October 2009 remand has now been satisfactorily completed and substantially complied with. This includes actions to obtain additional VA treatment records, to develop additional private treatment records and to provide a VA medical examination. These efforts are documented in the Veteran's claims file. Only substantial, and not strict, compliance with the terms of a Board remand is required. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999); D'Aries v. Peake, 22 Vet. App. 97 (2008). In sum, the Board is satisfied that the originating agency properly processed the Veteran's claim after providing the required notice and that any procedural errors in the development and consideration of the claim by the originating agency were insignificant and non-prejudicial to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). ORDER Service connection for residuals of a left tibia stress fracture, a left calf strain, and shin splints is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs