Citation Nr: 1234974 Decision Date: 10/09/12 Archive Date: 10/17/12 DOCKET NO. 11-06 690 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a back disorder, to include as secondary to residuals of shrapnel wounds of the right and left legs. 2. Entitlement to service connection for a right foot disorder. 3. Entitlement to service connection for a left foot disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The Veteran had active service from December 1943 to April 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in St. Petersburg, Florida. This case has previously come before the Board. In September 2011, the matters were remanded to the agency of original jurisdiction (AOJ) for additional development. The case has been returned to the Board for further appellate review. The Veteran was afforded hearing before Decision Review Officer at the RO in December 2010. In July 2011, he testified at a video conference hearing over which the undersigned Veterans Law Judge presided. A transcript of each of the hearings is associated with the claims folder. 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 1. The preponderance of the competent and probative evidence is against a finding that degenerative disc disease of the lumbar spine is related to service or service-connected disability. 2. Resolving all doubt in the Veteran's favor, a cold right foot is a residual of a cold weather injury during active service. 3. Resolving all doubt in the Veteran's favor, a cold left foot is the residual of a cold weather injury during active service. CONCLUSIONS OF LAW 1. Degenerative disc disease of the lumbar spine was not incurred in or aggravated by active service, and is not secondary to service-connected disability. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2011). 2. Right foot cold injury residuals were incurred in active service. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2011). 3. Left foot cold injury residuals were incurred in active service. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. Under 38 U.S.C.A. § 5103, VA must notify the claimant of any information or evidence not of record that is necessary to substantiate the claim and that information or evidence VA will seek to provide, and what parts VA expects the claimant to provide. 38 C.F.R. § 3.159(b). VA must provide such notice to a claimant prior to an initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ), even if the adjudication occurred prior to the enactment of the VCAA. See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004). VCAA requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all elements of a claim for service connection, so that VA must provide notice that a disability rating and an effective date will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). VA notified the Veteran of the information and evidence needed to substantiate and complete a claim prior to the initial decision by way of dated in January 2009. The letter provided notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. The RO informed the Veteran of the specific criteria to substantiate his claims for service connection. The RO has provided adequate notice of how effective dates are assigned. The claims were subsequently readjudicated most recently in August 2012 supplemental statement of the case. The Board finds the Veteran was afforded a meaningful opportunity to participate in the adjudication of the claims. Service treatment records associated with the Veteran's period of active duty service are unavailable despite reasonable attempts by the RO to obtain them. The Court has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule where applicable. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Because of missing records, the analysis below has been undertaken with this heightened duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). Given the discussion below, the Board concludes the VA's heightened duty to assist the Veteran, to explain findings and conclusions, and to consider the benefit-of-the-doubt rule, is satisfied in this case. The claimant was provided the opportunity to present pertinent evidence. Records of medical treatment received privately, and the report of VA examinations addressing the material elements of the claims, are associated with the claims folder. The duty to assist includes the duty to provide a medical examination or obtain a medical opinion when such is necessary to make a decision on the claim, as defined by law. VA appropriately examined the medical history of the Veteran's claimed disabilities for compensation purposes and addressed the claimed disorders. Findings from the examination reports are adequate for the purposes of deciding the claims on appeal. The Veteran has been afforded a hearing before a Veterans Law Judge (VLJ) in which he presented oral argument in support of his service connection claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ noted that basis of the prior determination and noted the elements of the claims that were lacking to substantiate the claims for benefits. The VLJ specifically noted the three elements of service connection were in-service injury and a relationship to service, as well as a current diagnosis. Transcript at 11 (2011). In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claims. The record was held open for thirty days for the submission of additional evidence necessary to substantiate the claims. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) and no prejudice in the conduct of the Board hearing has been identified. The Board notes that the hearing focused on the elements necessary to substantiate the claims and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims for benefits. The Veteran and his representative stated that additional evidence would be submitted in support of the claims for service connection. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. VA has fulfilled its duty to assist the claimant by obtaining identified and available evidence needed to substantiate the claims, and, as warranted by law. Significantly, the Veteran has not identified, and the record does not otherwise indicate, that any additional evidence exists that has not been obtained and would be necessary for a fair adjudication of the claim. Hence, no further notice or assistance is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Service Connection The Veteran seeks service connection for a back disorder and for a right and left foot condition. Having considered the evidence, the Board finds that service connection is not warranted for a back disorder, and that service connection is warranted for residuals of cold weather trauma to the right and left foot. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Initially, the Board notes that the Veteran's service treatment records are unavailable, having been destroyed in a fire at the National Personnel Records Center records center in 1973. As such, there is a heightened obligation to assist the Veteran in the development of his case, a heightened obligation to explain findings and conclusions and to consider carefully the benefit of the doubt rule in cases, such as in this situation, in which records are presumed to have been or were destroyed while the file was in the possession of the government. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Veteran's service personnel records reveal an Honorable Discharge document which shows that during his period of active service he was assigned to Company D of the Third Infantry Division. His Armed Forces Of The United States Report Of Transfer Or Discharge (DD Form 214) shows that his military occupational specialty (MOS) was that of a light truck driver. His battle and campaigns include service in Southern France (GO33WD45) and Northern France. His decorations and citations include the Army Occupation Medal with Germany Clasp, the European-African-Middle Eastern Campaign Medal with one bronze service star, and the World War II Victory Medal. Back Essentially, the Veteran asserts that he had an onset of back problems during service and that his current back condition is related to the in-service symptoms. The January 2012 VA examiner concluded that the Veteran's degenerative disc disease in the lumbar spine is not likely related to service and much more likely age-related. The Board notes that although an August 2011 private opinion is to the effect that the Veteran's use of a back brace is related to an injury during service, no diagnosis was reported, the examiner did not address post-service findings and no rationale for the opinion was provided. A medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty. Bloom v. West, 12 Vet. App. 185, 187 (1999). Further diminishing the probative value of the August 2011 opinion in regard to the back are the various accounts as to the initial onset of back pain/injury. For example, testimony before the undersigned was to the effect that the concussion of the blast resulting in shrapnel wounds to the thighs during service in 1945 was felt in his back, although the January 2012 VA examination report notes the Veteran's report of having experienced no back pain at the time of the shrapnel wound injuries. The Board notes that the Veteran is competent to report his symptoms, and even assuming he had a back injury/pain during service, and to the extent that he has attempted to establish continuity of symptomatology based on lay statements, the January 2012 VA examination report notes initial back treatment a decade after service and no treatment in the 50 years since. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) ("evidence of a prolonged period without medical complaint, along with other factors" is for consideration). Further, although the VA examiner noted the Veteran's report of constant back pain since service, with no intercurrent injury, the December 2010 DRO hearing transcript reflects the Veteran's testimony that he retired as a result of a work-related back injury sustained while riding a motorcycle. Transcript at 3 (2010). As such, the Board finds that the Veteran's account of a continuity of back symptoms since service not credible in light of his conflicting account as to the onset and chronicity of these problems. Regardless, the competent and probative evidence does not establish that a chronic back disorder, to include lumbar spine degenerative disc disease, was manifested during service or within the initial year after separation, or that there is any causal relationship between the current degenerative disc disease and any injury during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). With respect to secondary service connection, the Board notes that the DRO hearing transcript reflects the Veteran's testimony to the effect that he had not asserted that his back pain was related to his service-connected shrapnel thigh wound residuals. Transcript at 3 (2010). As noted above, he testified that he injured his back in motorcycle accident. Regardless, the January 2012 VA examiner specifically concluded that the Veteran's back condition is not secondary to the service-connected shrapnel thigh wounds and is much more likely age-related. In reaching a determination, the Board has accorded significant probative value to the VA opinion to the effect that it is not at least as likely as not that the Veteran's back condition is related to service, and much more than likely that the back condition is age-related. The examiner reviewed the claims file and the opinion is based on reliable findings and sound reasoning. Such is far more probative than the Veteran's remote lay assertions, as well as the speculative private opinion. The preponderance of the evidence is against the claim and there is no doubt to be resolved. Consequently, the benefit sought on appeal is denied. Right and Left Foot Essentially, the Veteran asserts that he had an onset of cold/pain in his feet during service in the Battle of the Bulge. At the hearing before the undersigned, he noted that there was at least a foot of snow on the ground during that time, and that he has had residual foot symptoms ever since separation. Lending credibility to the Veteran's reported symptoms both during and after service are not only the circumstances of his distinguished service but also the August 2011 private medical report noting a requirement that he use socks at all times due to the trauma to the feet in service. The Board notes that although the January 2012 VA examination report reflects an opinion that asymptomatic bilateral plantar fasciitis is not at least as likely not related to service, noting no symptoms/treatment in the years immediately after separation, the opinion is inadequate because the examiner failed to adequately address the Veteran's competent report of in-service symptoms regarding cold weather injury to the feet, as well as his report of a continuity of similar foot symptomatology since service. The Court has held that a medical opinion based solely on the absence of documentation in the record is inadequate. Dalton v. Nicholson, 21 Vet. App. 23 (2007). In this case, the Veteran provided sworn testimony before the undersigned to effect that he has had cold feet since the cold weather foot trauma during service. The Veteran is competent to report his symptoms and the Board finds his statements to be credible, particularly when considering the types, places and circumstances of his service. 38 U.S.C.A. § 1154(a). Moreover, there is a competent medical opinion attributing residuals of cold weather injury to service. The evidence is in at least equipoise, and thus, resolving doubt in the Veteran's favor, service connection is warranted for residuals of cold weather injury to the right foot and left foot. Consequently, the benefits sought on appeal are granted. ORDER Service connection for a back disorder is denied. Service connection for a cold right foot as the residual of cold weather injury is granted. Service connection for a cold left foot as the residual of cold weather injury is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs