Citation Nr: 1126599 Decision Date: 07/15/11 Archive Date: 07/21/11 DOCKET NO. 07-39 892 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for foot drop of the left extremity. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran served on active duty from March 1961 to May 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. FINDING OF FACT The Veteran has foot drop of the left extremity that is attributable to military service. CONCLUSION OF LAW The Veteran has foot drop of the left extremity incurred in active military service. 38 U.S.C.A. §§ 1110, 1131, 1154 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Upon receipt of a complete or substantially complete application, VA must provide notice to the claimant that: (1) informs the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) informs the claimant about the information and evidence that VA will seek to provide; and (3) informs the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. § 3.159 (2010); Pelegrini v. Principi, 18 Vet. App. 112 (2004); 73 Fed. Reg. 23,353 (Apr. 30, 2008). The RO sent correspondence in October 2006 and a rating decision in January 2007. Those documents discussed specific evidence, particular legal requirements applicable to the claim, evidence considered, pertinent laws and regulations, and reasons for the decision. VA made all efforts to notify and to assist the appellant with evidence obtained, the evidence needed, and the responsibilities of the parties in obtaining the evidence. The Board finds that any defect of timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to the claimant's receipt of compliant notice. There has been no prejudice to the appellant, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically declining to address harmless error doctrine); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the final adjudication in the December 2007 statement of the case. A statement of the case or supplemental statement of the case can constitute a readjudication decision that complies with all applicable due process and notification requirements if adequate notice is provided prior to that adjudication. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). The provision of adequate notice prior to a readjudication, including in a statement of the case or supplemental statement of the case, cures any timing defect associated with inadequate notice or the lack of notice prior to the initial adjudication. Prickett v. Nicholson, 20 Vet. App. 370 (2006). In addition, all relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has also obtained a medical examination in relation to the claim. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. Furthermore, the Board finds that if there is any deficiency in the notice to the Veteran or the timing of the notice it is harmless error because the appellant had a meaningful opportunity to participate effectively in the processing of the claim. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Board erred in relying on various post-decisional documents for concluding adequate notice was provided, but the Veteran was afforded a meaningful opportunity to participate effectively in the adjudication of his claims, and therefore the error was harmless). 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 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2010). In addition, certain chronic diseases, such as organic diseases of the nervous system, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113, (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2010). The chronicity provisions are applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service, or during an applicable presumptive period, and still has such condition. That evidence must be medical unless it relates to a condition as to which, under relevant case law, lay observation is competent. 38 C.F.R. § 3.303(b) (2010). In the alternative, the chronicity provisions are applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service, or during an applicable presumptive period, and still has that condition. The evidence must be medical unless it relates to a condition as to which lay observation is competent. 38 C.F.R. § 3.303(b) (2010). Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Pond v. West, 12 Vet. App. 341 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). For injuries alleged to have been incurred in combat, the law provides a relaxed evidentiary standard of proof to determine service connection. 38 U.S.C.A. § 1154(b) (West 2002); Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996). When an injury or disease is alleged to have been incurred or aggravated in combat, such incurrence or aggravation may be shown by satisfactory lay evidence, consistent with the circumstances, conditions, or hardships of combat, even if there is no official record of the incident. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2010). Satisfactory evidence is credible evidence. Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996). Such credible, consistent evidence may be rebutted only by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2010). That provision does not establish a presumption of service connection; rather, it eases a combat Veteran's burden of demonstrating the occurrence of some in-service incident to which the current disability may be connected. Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996). The reduced evidentiary burden only applies to the question of service incurrence, and not to the question of either current disability or nexus to service. Both inquiries generally require competent medical evidence. Brock v. Brown, 10 Vet. App. 155 (1997); Libertine v. Brown, 9 Vet. App. 521 (1996); Beausoleil v. Brown, 8 Vet. App. 459 (1996). In this case, the Veteran claims that he sustained a severe laceration to his left leg following a helicopter crash in service. Specifically, the Veteran asserted that while he fractured his left shoulder in the crash in which his helicopter was shot down in the Republic of Vietnam, he indicated that he also sustained a deep laceration to the left calf when he was removed from the helicopter wreckage. The Veteran's service medical records show that he sustained a simple fracture of the right maxilla, a simple fracture of the left humerus, and a simple fracture of the left scapula in March 1964. The records indicate that the Veteran was a helicopter pilot on a low level reconnaissance escort mission when it was hit by automatic weapon fire causing it to catch fire and crash due to hostile action. The only other entry related to that event is a May 1964 entry which lists the injuries reported previously and notes that the Veteran desired to return to flying status. At that time, the Veteran was noted to have some limitation of abduction of the left arm and he was returned to flying status. At a July 1981 VA examination, the Veteran did not report any complaints related to his left foot. He was noted to have an impacted fracture of the first metatarsal of the right foot at that time. The Veteran submitted a copy of the front and back of a black and white photograph of himself with a bandage on his left calf. The back of the picture was dated "March 31, 1964" and also noted "sore knee." Private treatment reports from the NeuroCare Institute of Central Florida indicate that the Veteran underwent an electromyography/nerve conduction study in March 2003 which revealed electrodiagnostic studies findings compatible with left peroneal neuropathy. Private treatment reports from C. Conavay, M.D., dated from January 2003 to August 2006 show a report of left foot numbness in January 2003. The Veteran was assessed with peroneal nerve damage with drop foot in February 2003. The Veteran submitted a statement from L. Gemsch, ARNP, and M. Creamer, D.O., of Rehabilitation Medical Group, P.A., dated in July 2007. The letter indicates that the Veteran had been a patient since May 2007 and suffered from left foot drop with numbness and weakness. The private providers noted that the Veteran sustained an injury in 1964 while working as a pilot during the Vietnam War at which time he sustained trauma to the bilateral lower extremities and a laceration to the left lower extremity during his removal from the helicopter. The providers indicated that the Veteran underwent a nerve conduction study in June 2007 which revealed physiologic evidence of a generalized lower limb sensory motor polyneuropathy which was noted to be independent of a chronic peroneal entrapment neuropathy. The providers noted that there was no evidence of acute or physiologically active lumbosacral radiculopathy and the results of the nerve conduction studies and his clinical examination were consistent with and related to the injury occurring in 1964 in Vietnam. At an April 2008 VA examination, the Veteran reported that he sustained a deep laceration to the left anterior lateral calf several centimeters below the left head of the fibula. The Veteran denied numbness, weakness, or tripping due to his left foot prior to 2005. The examiner noted that the Veteran did not have diabetes but had been a moderate to heavy alcohol abuser over the years and noted some numbness in both feet in the last few years. The examiner also reported that the Veteran was diagnosed with a nonresectable right lung cancer and was receiving chemotherapy. The examiner stated that the Veteran's left foot numbness preceded the chemotherapy but the examiner noted that some of the new signs of bilateral numbness may be due to the effects of chemotherapy. Following a physical examination which included review of the claims file, the examiner indicated that the Veteran's left leg laceration of the anterior lateral aspect of the left calf occurred in 1966 and he reported that his left foot drop began in 2005. The examiner opined that it was less likely than not that the Veteran's left foot drop is related to his service injury in Vietnam because of the length of time between the laceration in service and the complaints of foot drop in 2005. In considering the evidence of record and the applicable laws and regulations, the Board concludes that the Veteran is entitled to service connection for foot drop of the left extremity. The service medical records show that the Veteran sustained injuries to his jaw and left upper extremity following a helicopter crash in the Republic of Vietnam due to hostile fire by the enemy in 1964. The Veteran has indicated that he also sustained a deep laceration to his left calf at that time. Although the service medical records do not corroborate the Veteran's report of the left calf laceration, the Veteran is competent to report that incident. Washington v. Nicholson, 19 Vet. App. 362 (2005). However, the private medical records associated with the claims file indicate that the Veteran did not report trouble with his left foot prior to January 2003, almost forty years after the reported injury to his left calf. A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The amount of time that passed between service and the first diagnosis of record of foot drop of the left extremity is also evidence that weighs against the Veteran's claim. The Board finds that the evidence is in equipoise, and thus supports a finding of a relationship between the Veteran's foot drop of the left extremity and his period of military service. The Veteran submitted a statement from his treating physician who linked his left foot drop to the helicopter crash in service, the private physician and nurse practitioner who submitted the statement failed to provide a basis for that opinion. However, both medical professionals, an osteopathic doctor and nurse practitioner, concurred in the findings. The VA examiner, a physician's assistant, indicated that it was less likely than not that the Veteran's left foot drop was related to his service injury in Vietnam because of the length of time between the laceration in service and the complaints of foot drop. The Board finds that the contradictory findings are both competent and entitled to persuasive value. However, the persuasive value is in approximate balance, showing that it is at least as likely as not that the current left foot drop is related to the inservice laceration. The occurrence of that laceration is consistent with the Veteran's combat injury, about which there are very few medical reports despite the severity of the injury. Furthermore, the Veteran has submitted a photograph of himself in service with a bandaged left calf, supporting his account of the initial injury. In summary, the Board concludes that the evidence is equally for and against a finding that the Veteran's foot drop of the left extremity was incurred in service. Therefore, the issue is resolved in favor of the Veteran and service connection for left foot drop is granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. §§ 3.102, 4.3 (2010). ORDER Entitlement to service connection for foot drop of the left extremity is granted. ____________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs