Citation Nr: 1209189 Decision Date: 03/12/12 Archive Date: 03/28/12 DOCKET NO. 08-24 298 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for a right lower extremity disability. (The issues of entitlement to payment or reimbursement for the cost of medical treatment provided on October 30, 2010, at Mount Grant General Hospital and entitlement to payment or reimbursement for the cost of medical treatment provided from September 15, 2006, to May 1, 2007, and from June 2007 to August 2008 are addressed in a separate decision of the Board under docket number 10-24 514). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran's spouse ATTORNEY FOR THE BOARD S.J. Janec, Counsel INTRODUCTION The Veteran had active service from March 1975 to March 1976. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a March 2007 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Portland, Oregon. Jurisdiction over this case belongs to the RO in Reno, Nevada. In March 2010 the Veteran's spouse testified during a Board hearing at the RO in Reno, Nevada before the undersigned Veterans Law Judge; a transcript of that hearing is of record. The Veteran's spouse has been granted limited power of attorney to assist the Veteran along with her accredited representative in matters before VA. A September 2009 rating decision denied the Veteran's claim of entitlement to service connection for diabetes mellitus secondary to medication taken for service-connected psychiatric disability. The Veteran filed a notice of disagreement with the decision, and a statement of the case was issued in March 2010. The claims file does not reveal that the Veteran has submitted a substantive appeal as to the diabetes issue. Hence, the issue has not been certified to the Board and will not be addressed in this decision. In a July 2005 rating decision, the RO denied entitlement to an effective date prior to December 5, 1996 for the grant of service connection for posttraumatic stress disorder (PTSD). The Veteran filed a notice of disagreement with the denial and was provided with a statement of the case in October 2006. However, a substantive appeal was not received. In a March 2006 statement, she alleged entitlement to an effective date prior to December 5, 1996 for the grant of service connection for PTSD and the award of a 100 percent rating based on clear and unmistakable error in a prior rating decision. Specifically, she asserts that she is entitled to a grant of benefits from the date of her separation from service. This issue has not been adjudicated by the RO and is not currently before the Board. It is referred to the RO for appropriate development. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT A chronic right lower extremity disability, including arthritis, was not shown in service or within a year of discharge from service, and it has not been shown by competent medical or competent and credible lay evidence that any currently manifest right lower extremity disability is related to the Veteran's active service, including the ankle injury she sustained in 1975. CONCLUSION OF LAW A chronic right lower extremity disability was not incurred in, or aggravated by, active service, and arthritis of the right lower extremity may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act 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) redefined VA's duty to assist the veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011). Duty to Notify The notice requirements of the VCAA require VA to notify the veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; what subset of the necessary information or evidence, if any, the VA will attempt to obtain; and a general notification that the claimant may submit other evidence that may be relevant to the claim. The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such 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; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). 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). In a June 2006 letter, issued prior to the rating decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the Veteran, what information and evidence will be obtained by VA, and the need to advise VA of, or submit any further medical evidence relevant to, the claim. She was also advised of how disability ratings and effective dates are assigned. Accordingly, the Board finds that the duty to notify provisions have been satisfactorily met, and neither the Veteran nor her representative has pointed out any specific deficiency to be corrected. Duty to Assist The information and evidence that have been associated with the claims file includes the Veteran's service treatment records, VA and private treatment records, VA examination reports, the Veteran's statements, and the personal hearing testimony provided by her spouse before the undersigned Veterans Law Judge in March 2010. It is unclear if all of the Veteran's Social Security Administration (SSA) disability records are associated with the claims file (see March 2010 Board hearing transcript, pages 6-9). However, there has been no indication that the Veteran has been awarded SSA disability benefits due to a right leg disability, and the Board notes that VA is only obligated to obtain SSA records when they relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the claim. Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010). Here, the Veteran is rated 100 percent disabled due to a service-connected mental disability and it is reasonable to presume that her SSA disability would be premised on the same disability. Additionally, the Veteran's spouse testified that the Veteran was not afforded any type of physical examination in conjunction with her claim. (See March 2010 Board hearing transcript page 8). The Board observes that the Veteran was not afforded a VA examination in conjunction with her claim. However, the Veteran has not presented any medical evidence showing that she has a current right lower extremity disability related to her military service or that arthritis of that extremity was manifest within one year of her discharge from service. Continuity of symptomatology has also not been sufficiently demonstrated from the time of the Veteran's discharge from service until the present. For example, although the Veteran experienced an ankle sprain in service, her separation examination did not show any chronic residuals and there are no medical records showing treatment for a chronic right ankle disability in the initial years after discharge from service. Hence, the Board finds under such circumstances, VA is not obligated to provide a VA examination for the claim. See 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006) (Under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service (or VA treatment); and the record does not contain sufficient information to make a decision on the claim). Additionally, the Veteran's spouse has indicated that the Veteran would not appear for any scheduled VA examination and in January 2010, the RO attempted to schedule her for a VA joints examination at the Reno VA Medical Center (VAMC), but she refused an examination at this location. In this regard, the Board observes that "[t]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see also Olson v. Principi, 3 Vet. App. 480, 483 (1992). Furthermore, while VA does have a duty to assist the appellant in the development of a claim, that duty is not limitless. Hyson v. Brown, 5 Vet. App. 262 (1993). The Board is aware that the Veteran is service-connected for a mental disability that is rated 100 percent disabling. However, such rating does not accord the Veteran the right to demand treatment or examinations be conducted at a particular facility, at her home or in a car. In an October 2008 VA social work report of telephone contact, the Veteran's spouse requested a fee-basis appointment for another claim to be conducted in the car in the parking lot. He was advised that his was not feasible. VA resources are not limitless. The Veteran was authorized fee-basis care in the amount of $125 per month for her service-connected disabilities and primary care. (See September 2008 letter). She was required to come to the VAMC in Reno to set up the arrangement as well as annually for review. Other specialty care was not authorized on this basis and she was not approved to receive private healthcare at VA expense. Moreover, although the Veteran's spouse has asserted that the Veteran is agoraphobic and cannot leave her home, there are records in the file showing that the Veteran has, in fact, left her home. For example, she appeared for a VA examination at the Roseburg VAMC for her PTSD in March 2005. In February 2009, she traveled to Mount Grant Medical Center for treatment of a rash on her face. In March 2011, she traveled to Sierra Nevada Cardiology Associates for complaints of edema, dyspnea and hypertension. With regard to the issue of transportation, VA has offered a courtesy shuttle that the Veteran has declined to utilize. There is no indication in the file that the Veteran's spouse is not able to drive her to Reno or obtain a rental car to transport her on his own. Consequently, the Board finds that VA has made reasonable efforts to assist the Veteran in the development of her claim. Hence, the Board concludes that VA's duty to assist has also been met in this case. Analysis Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in active service or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2011). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established, there is no requirement of an evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (2011). See Savage v. Gober, 10 Vet. App. 488, 495-496 (1997) (holding that when the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim); Voerth v. West, 13 Vet. App. 117, 120 (1999) (holding that in Savage the Court had clearly held that 38 C.F.R. § 3.303(b) does not relieve the claimant of his burden of providing a medical nexus). Regulations also provide that service connection may 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) (2011). Certain chronic disabilities, such as arthritis, if manifest to a degree of 10 percent or more within one year after separation from active duty, may be presumed to have been incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2011). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). An April 14, 1975 service treatment record indicates that the Veteran complained of a swollen right ankle after having had twisted it stepping on a curb one day prior. Examination revealed marked edema with mild discoloration and tenderness to palpation. X-rays were negative for a fracture, and the impression was right ankle sprain with moderate inversion. An April 18, 1975 service treatment record revealed that the right foot had a large amount of edema, discoloration, and severe tenderness. Service treatment records dated April 25, 1975 and May 2, 1975 revealed that the Veteran's right ankle had good range of motion. A May 15 and May 19, 1975 service treatment record essentially indicated that the right ankle had no edema, and the May 19, 1975 record noted that there were no significant findings. The Veteran's March1976 service separation examination report indicates that the Veteran's lower extremities and musculoskeletal systems were clinically evaluated as normal; the Veteran specifically denied that she had joint deformity and foot trouble on the corresponding Medical History Report. Private evaluations in June 1991, March1997, and April 1997 do not show any complaints of a right lower extremity disability or any clinical findings related to a right lower extremity disability. A February 1996 VA record indicates that the Veteran complained of swelling in the legs; the impression was peripheral edema. At a January 1997 VA general medical examination, the Veteran made no complaints related to the right lower extremity. A February 1997 VA medical record noted that the extremities had good pedal pulses and no peripheral edema. At a September 1998 VA general medical examination, the Veteran complained of right knee pain and numbness in her feet related to diabetes. No ankle complaints were noted. Physical examination revealed that toe and heel walk was within normal limits; the right knee had crepitus and chondromalacia patella. Peripheral neuropathy of the legs was also noted. X-rays of the right knee revealed degenerative changes. The diagnosis was right knee strain with chondromalacia patella. While the Veteran made complaints pertaining to the right ankle near the beginning of her active service, the medical evidence, including the Veteran's March 1976 service separation examination report, fails to indicate that the Veteran had any chronic right ankle or chronic right foot disability during service or at the time of her discharge. Significantly, there has been no medical evidence showing that the Veteran has been diagnosed with a chronic right ankle disability or that right ankle arthritis was manifest to a compensable degree within one year of her discharge from service. Moreover, the earliest medical evidence in the file showing complaints related to the right lower extremity at all were in 1996, when she was seem for complaints of peripheral edema. Upon VA examination in 1998, she was diagnosed with right knee strain with chondromalacia, but there is no indication that such manifestations were shown to be causally related to the Veteran's active military service, including the ankle sprain she sustained in 1975. In fact, the Veteran did not even report a history of that ankle sprain upon evaluation at that time. In this regard, the Board notes that a prolonged period without documented 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 disease was incurred in service, which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Here, the lack of clinical evidence reflecting treatment pertaining to the right lower extremity until many years (approximately 20) after her discharge from active service is against her claim for service connection. The Board notes that the Veteran is competent to provide statements concerning factual matters of which she has firsthand knowledge (i.e., experiencing or observing right foot or ankle pain and problems during or after service). Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Further, under certain circumstances, lay statements 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, susceptible of lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Veteran is not competent to say that any right foot or ankle injury she experienced in service was of a chronic nature to which current disability may be attributed. As a layman, the Veteran simply does not have the necessary medical training and/or expertise to determine the etiology of her disability on appeal. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Moreover, her statements as to continuity of symptomatology with regard to her right ankle and right foot are less than credible. In this regard, the Board notes that the Veteran specifically denied that she had any right foot problems at the time of her discharge. Consequently, the Board finds that the objective contemporary clinical evidence pertaining to the Veteran's medical problems is more probative than later unsupported statements made in conjunction with a claim for VA compensation benefits. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In the absence of any persuasive evidence that any currently manifest right lower extremity disability is etiologically related to active service, including the sprained ankle she sustained in 1975, service connection is not warranted. The Board finds that the preponderance of the evidence is against the claim, and the appeal must therefore be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for a right lower extremity disability is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs