Citation Nr: 1301075 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 09-30 134 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a knee disability. 2. Entitlement to service connection for a foot disability. 3. Entitlement to service connection for headaches. ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The Veteran served on active duty with the United States Army from February 1976 to February 1979. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by the Waco, Texas, Regional Office (RO) of the United States Department of Veterans Affairs (VA). In October 2010, the Veteran withdrew his request for a Central Office Board hearing. See 38 C.F.R. § 20.702 (2012). In February 2011, the Board remanded this case to the RO via the Appeals Management Center (AMC), in Washington, DC, for further evidentiary development. In a May 2012 rating decision, the AMC granted service connection for tinnitus. As that decision represents a full grant of benefits sought with regard to tinnitus, such issue is no longer a part of the current appeal. The issue of entitlement to service connection for headaches is addressed in the REMAND portion of the decision below and is REMANDED to the RO via AMC. FINDINGS OF FACT 1. A knee disability was not shown in active service, and there is no competent evidence of a link between any current knee disability and the Veteran's active service. 2. A foot disability was not shown in active service, and there is no competent evidence of a link between any current foot disability and the Veteran's active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a knee disability have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. The criteria for service connection for a foot disability have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA provided notice in a July 2008 letter. The Veteran's claim was subsequently readjudicated, most recently in a September 2012 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The duty to notify the Veteran was satisfied under the circumstances of this case. 38 U.S.C.A. § 5103. The Veteran's service treatment records have been obtained, including from the William Beaumont Army Medical Center from February 1976 to April 1967 and from the hospital at Ford Ord, California from June 1976 to January 1979; he did not identify any other treatment records pertinent to the claim being decided. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159(c)(2). VA's duty to assist does not require that the Veteran be afforded a VA examination for a knee disability or a foot disability, because such disabilities were not shown in active service, and there is no competent evidence of a link between any current knee or foot disabilities and his active service. See McLendon v. Nicholson, 20 Vet. App. 79, 82-83 (2006). As all of the pertinent development requested by the Board's February 2011 remand was fully completed, the remand orders were substantially complied with. See Stegall v. West, 11 Vet. App. 268 (1998). There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Analysis Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal 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, during active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be competent evidence of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The nexus between service and the current disability can be satisfied by competent evidence of continuity of symptomatology and evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements conveying sound medical principles found in medical treatises. Competent medical evidence may include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's service treatment records do not contain any complaints, findings, or treatment of either knee pain/disability or foot pain/disability. The report of a November 1978 separation examination included normal clinical evaluations of all systems; no pertinent defects or diagnoses were noted. Nearly 30 years after his discharge from service, the Veteran filed his current claim for knee pain and for foot pain in April 2008. None of the evidence of record reflects that the Veteran has ever sought medical treatment for his knees or feet, or that he has been diagnosed with either a knee disability or a foot disability at any time. There are no medical opinions of record to suggest a link between any current knee disability or foot disability and the Veteran's active service. The Veteran has offered his own opinion on etiology, stating that he currently has knee pain and foot pain related to his active service. The Veteran is competent to describe his symptoms of knee pain and foot pain without any specialized knowledge or training. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). However, as a layperson, the Veteran is not competent to diagnose such pain as a specific disease, nor is he competent to render a nexus opinion regarding the etiology of any current disorders; both of these determinations require medical expertise. Espiritu v. Derwinski, 2 Vet. App. 492 (1992); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Given the absence of any evidence of either knee pain/disability or foot pain/disability in service, the passage of nearly 30 years after his service discharge before he first complained of knee pain and foot pain, and the absence of any competent evidence linking any current knee disability or foot disability to service, the preponderance of the evidence is against the claims; there is no doubt to be resolved. Service connection for a knee disability is not warranted, and service connection for a foot disability is not warranted. ORDER Entitlement to service connection for a knee disability is denied. Entitlement to service connection for a foot disability is denied. REMAND The Veteran's service treatment records document that he was treated for fever accompanied by headache in February 1976. At an August 2012 VA headaches examination, the Veteran reported that he began having headaches during boot camp but never sought medical care for such in service or after discharge. The examiner noted the Veteran's treatment for fever in service. The Veteran reported current bilateral headaches daily without any other symptoms except rarely nausea. The examiner opined that the Veteran's current headaches are less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner's rationale stated that there is no documentation of headaches in service or after service discharge to the current date, and that the Veteran's fever in service was a one-time event which resolved in service and "no headaches were recorded with that event." The August 2012 VA examiner's rationale for the opinion regarding the Veteran's headaches is based on an inaccurate factual premise, because headaches were recorded when the Veteran was treated for fever in service in February 1976. The claims file is to be returned to the August 2012 VA examiner in order to obtain an updated opinion with adequate supporting rationale. Accordingly, the case is REMANDED for the following: 1. Return the claims file to the August 2012 VA headaches examiner. The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. Based on the review of the record, the examiner is to opine whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's current headaches are related to any incident of his military service. The examiner is to specifically consider and address the February 1976 service treatment records documenting the Veteran's treatment for fever accompanied by headache. A complete rationale for all opinions expressed must be provided. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner is to state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). If the examiner determines that further examination of the Veteran is necessary to provide the requested opinion, such examination is to be scheduled. If the previous examiner is no longer available, a new examination is to be conducted, and the requested opinion rendered, by another qualified examiner. 2. Review the claims file to ensure that all of the foregoing development is completed, and arrange for any additional development indicated. Then readjudicate the claim on appeal. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran the requisite period of time to respond. The case is to then be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs