Citation Nr: 1301447 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 09-41 867 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky THE ISSUE Entitlement to service connection for a right leg condition (claimed also as a gun shot). REPRESENTATION Veteran represented by: Kentucky Department of Veterans Affairs ATTORNEY FOR THE BOARD L. Durham, Counsel INTRODUCTION The Veteran served on active duty from May 1982 to September 1982. The Veteran also had subsequent service in the United States Army Ready Reserve ending on May 25, 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 RO decision, which denied a claim for service connection for a right leg condition (claimed also as a gun shot). The Board notes that the Veteran indicated on his October 2009 VA Form 9 Appeal that he wished to be scheduled for a hearing before a member of the Board. In a March 2, 2011, letter, the Veteran was notified that he was scheduled for a videoconference hearing before a member of the Board on April 13, 2011, at the Louisville, Kentucky, RO. He was notified again of this hearing in a March 17, 2011, letter. The Veteran failed to report for this hearing. As he did not provide good cause for his failure to report for this scheduled hearing and has not requested that the hearing be rescheduled, the Board will proceed to adjudicate the claim accordingly. This issue was remanded by the Board for further development in May 2011. The Board notes that the Veteran's representative submitted argument via a Statement of Accredited Representative in Appealed Case in September 2010 prior to the May 2011 Board remand. The Veteran's representative did not submit argument in the form of a Statement of Accredited Representative in Appealed Case after this remand was issued. However, in a September 6, 2012, letter attached to the most recent supplemental statement of the case (SSOC), the Veteran and his representative were advised that he had 30 days from the date of this letter to respond. As 30 days have since passed, the Board will proceed to the merits of the claim. FINDING OF FACT A right leg condition was noted at enlistment; this disability was not aggravated beyond the natural progress of the disease during service, and a right leg condition is not otherwise shown to have been caused or aggravated by service. CONCLUSION OF LAW A right leg condition was not incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1111, 1131, 1153, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform 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. A June 2008 VCAA letter fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claim. This letter informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. Additionally, this letter described how appropriate disability ratings and effective dates were assigned. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and relevant VA and private medical records are in the file. The Appeals Management Center (AMC) indicated in a December 2011 memorandum that Reserve or National Guard records for the Veteran are not in existence. The Board finds that all records identified by the Veteran as relating to this claim have been obtained, to the extent possible. The record contains sufficient evidence to make a decision on the claim. VA has fulfilled its duty to assist. With regard to claims for service connection, the duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). The Veteran was provided a VA examination for his claim in July 2012. The examiner reviewed the claims file, noted the Veteran's assertions, and examined him thoroughly. The Board finds this examination report and opinion to be thorough and complete. Therefore, the Board finds this examination report and opinion are sufficient upon which to base a decision with regard to this claim. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis The Board must assess the credibility and weight of all 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. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, 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. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. 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) (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2012). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002). In order to rebut the presumption of soundness at service entry, there must be clear and unmistakable evidence showing that the disorder preexisted service and there must be clear and unmistakable evidence that the disorder was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGPREC 3-2003 (July 16, 2003); Jordan v. Principi, 17 Vet. App. 261 (2003); Wagner v. Principi, No. 02-7347 (Fed. Cir. June 1, 2004). However, where a preexisting disease or injury is noted on the entrance examination, section 1153 of the statute provides that "[a] preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease." 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(a) (2012). For Veterans who served during a period of war or after December 31, 1946, clear and unmistakable evidence is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service, and clear and unmistakable evidence includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. 38 C.F.R. § 3.306(b) (2012). Temporary or intermittent flare-ups of symptoms of a preexisting condition, alone, do not constitute sufficient evidence for a non-combat Veteran to show increased disability for the purposes of determinations of service connection based on aggravation under section 1153 unless the underlying condition worsened. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, will not be considered service connected unless the disease or injury is otherwise aggravated by service. 38 C.F.R. § 3.306(b)(1) (2012). The Veteran is seeking entitlement to service connection for a right leg condition. Specifically, the Veteran asserted in his May 2009 notice of disagreement (NOD) that he suffered a gunshot wound a couple of years prior to his enlistment into the Army. The Veteran indicated that he felt fine during basic training. However, during the end of basic training, his right leg began cramping. He asserted that he used Bengay on his leg and sought treatment for his complaints during service. While in service, a new treatment was provided, which required freezing the calf and then using electric shock on it to break loose the bullet fragments that were still in his calf, bringing them to the surface so that they could be removed. The Veteran asserted that the fragments spread out further and actually went deeper into his leg. He claimed that muscle, ligaments, and tendons inside his right calf were cut so badly that he could hardly walk. The Veteran asserted that he has never been able to run right again. He can walk okay with some pain, but he is still treating himself with Bengay all the time. A review of the service treatment records reflects that it was noted on the Veteran's April 1982 enlistment Report of Medical Examination that he had a gunshot wound to the calf of his right leg. On his April 1982 enlistment Report of Medical History, the Veteran reported that he suffered an accidental gunshot wound to his right calf in 1978. He further reported that he bled from the leg secondary to the gunshot wound accident in 1980. On an April 1982 Applicant Medical Prescreening Form, it was noted that the Veteran was hospitalized at the age of 18 for shooting himself in the right calf and that he had some current problems. It was also noted that he broke his right ankle at age 10 but had no problems with the ankle. The Board acknowledges that the Veteran sought treatment for a right leg condition throughout his active duty service. In an August 1982 radiographic report, it was noted that there were multiple metallic foreign bodies in the soft tissues of the posterior lower leg without osseous abnormalities. The Veteran complained of pain on running. In an August 1982 service treatment record, the Veteran complained that his right calf muscle hurt for 2 weeks. In a separate August 1982 service treatment record, the Veteran complained of muscle cramping during physical training and at night after duty hours. In another August 1982 service treatment record, it was also noted that the Veteran had a right leg injury which existed prior to service with residual pain on training. On a September 1982 Entrance Physical Standards Board Proceedings form, it was noted that it was very painful for the Veteran to run, jump, and do physical training. The Veteran was placed on a profile that required no crawling, stooping, running, jumping, or marching. It was noted that the Veteran should have no strenuous physical activity. In a September 1982 service treatment record, the Veteran complained of pain and swelling in the right leg and foot with running. He was noted as being unfit for service. As the service treatment records clearly reflect that the Veteran had a gunshot wound to the right calf prior to service and that multiple metallic foreign bodies were retained in the soft tissues of the posterior lower leg, and the Veteran specifically reported on his April 1982 Applicant Medical Prescreening Form that he was hospitalized at the age of 18 for shooting himself in the right calf and that he had some current problems, the Board finds that the presumption of soundness does not apply. Thus, the Board must consider whether there was an increase in disability during such service so as to warrant the presumption of aggravation. 38 U.S.C.A. § 1153 (West 2002). If so, clear and unmistakable evidence that such increase was not beyond the natural progress of the disease is required to rebut the presumption of aggravation. The claims file contains no post-service treatment records reflecting complaints, treatment, or diagnoses of a right leg condition. The Veteran underwent a VA examination in July 2012. The examiner reviewed the claims file. The Veteran reported that he accidentally shot himself in the right calf during gun exercise in 1978. This gunshot wound penetrated the superior aspect of the right calf and was pushed through to exit of the inferior calf muscle by medical personnel. He related that the wound healed well but he did have some retained shrapnel fragments. He denied any bone involvement or loss of muscle mass. He stated he was able to attend basic training and completed that without any special accommodations. He reported his calf would cramp during exercises and he treated this himself with analgesic rub. During his AIT training, he reported that he went to sick call to get more Bengay and it was recommended he undergo new treatment to remove bullet fragments. He stated this consisted of cold treating the muscle, then applying electrical stimulus which would push the metallic fragments close to skin surface where they could be excises. He related this did not work properly and instead pushed fragments deeper resulting in increased pain and dysfunction of the muscle group. He related that he then had to be put on a profile because of his calf pain/cramping with exercise and was subsequently discharged as medically unfit. The Veteran reported that, since then, he did have some treatment for calf symptoms in recent years consisting of pain medication and muscle relaxants. He has not had any formal treatment in the last 3 years and manages with over the counter Tylenol preparation. He currently reports muscle cramping and pain in the right calf that occurs with exertional activities such as prolonged walking, driving, or heavy exertion. He can no longer run for exercise. He has cramping at night. X-ray evidence revealed retained metallic fragments. The examiner determined that the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner noted that she did not find any current right leg condition other than the Veteran's known pre-military gunshot wound to the right calf, muscle group XI. Therefore, there is no current right leg condition to opine relation to military service as direct service connection. The Veteran has pre-military history of a gunshot wound to the right calf. Upon entrance, the calf was symptomatic requiring a limited profile to avoid strenuous activity. He was treated on a few occasions in the military for calf symptomatology and subsequently discharged as medically unfit. The examiner did not find any evidence of any procedures performed on the calf other than conservative management. There are no records of any continued right calf complaints or conditions adjacent to military service to present date. The evidence provides that the Veteran's residuals of pre-military gunshot wound in the right calf were present prior to his military prescreening and entrance examination outlined in the Medical as "current problems", "avoiding exercise", and "now painful" with exercise. It would be expected that temporary aggravation of the symptoms would occur due to strenuous physical activity despite limited profile and would resolve with cessation of activity. Cessation was achieved with his discharge and there is no evidence of ongoing treatment or complications in the records to present date. The examiner did not find any objective evidence that suggests his condition was permanently aggravated beyond a natural course by his military service, as there is no evidence of continued treatments, procedures, or conditions related to this injury. The Veteran's current subjective symptoms are consistent with his pre-military symptoms and reflect the expected residuals of that injury in natural progression. Therefore, it is less likely than not the Veteran's pre-military gunshot wound to the right calf was permanently aggravated by military service. With regard to whether there was an increase in the Veteran's right leg disability during such service so as to warrant the presumption of aggravation, the Board finds that there is credible evidence suggesting that the symptoms and manifestations of the Veteran's right leg disability increased during service. 38 U.S.C.A. § 1153 (West 2002). As noted, the Veteran sought treatment for a right leg condition throughout his active duty service. In an August 1982 service treatment record, it was noted that the Veteran had a right leg injury which existed prior to service with residual pain on training. The July 2012 VA examiner noted that, upon entrance, the calf was symptomatic requiring a limited profile to avoid strenuous activity, and that it would be expected that temporary aggravation of the symptoms would occur due to strenuous physical activity despite limited profile and would resolve with cessation of activity. As such, the Board finds that the presumption of aggravation is warranted in this case. However, the Board also finds that the record contains clear and unmistakable evidence that such increase was a temporary flare-up, and did not result in permanent aggravation beyond the natural progress of the disease. In this regard, the Board again acknowledges that the Veteran sought treatment for right leg complaints during service and has asserted that his right condition was aggravated during service. However, the only medical opinion of record on the matter specifically indicated that the claimed condition was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. As noted, the VA examiner explained that it would be expected that temporary aggravation of the symptoms would occur due to strenuous physical activity despite limited profile and would resolve with cessation of activity. The claims file contains no medical evidence to the contrary. Moreover, the claims file contains no post-service record of complaints or treatment related to this disability. As such, the presumption of aggravation is rebutted. As there is no competent evidence of record reflecting that the Veteran now suffers additional right leg disability as a result of permanent aggravation during service, and, in fact, the claims file contains clear and unmistakable evidence there was no aggravation of a pre-existing disability in service beyond the natural progress of the disease, service connection cannot be granted. The Board has considered the Veteran's assertions that, while in service, a new treatment was provided, which required freezing the calf and then using electric shock on it to break loose the bullet fragments that were still in his calf, bringing them to the surface so that they could be removed. The Veteran asserted that the fragments spread out further and actually went deeper into his leg, and that muscle, ligaments, and tendons inside his right calf were cut so badly that he could hardly walk. In this regard, the Board notes that an August 11, 1982, service treatment record noted the Veteran's complaints of right calf pain and a plan was recommended which included ice, ultrasound with hydrocortisone, and strengthening exercises. However, there is no indication in the service treatment records that of any sort of electric shock therapy was used to treat the Veteran's right calf pain. Moreover, the July 2012 VA examiner noted the Veteran's assertions regarding electric shock therapy or treatment and, upon review of the claims file, specifically found no evidence of any procedures performed on the calf other than conservative management. As such, the Board finds the contemporaneous clinical findings noted in his records to be far more credible with respect to the type of treatment administered than the Veteran's recollections decades later. The Board also acknowledges the Veteran's contentions that his pre-existing right leg disability was aggravated as a result of active duty service. Certainly, the Veteran can attest to factual matters of which he had first-hand knowledge, to include describing a worsening of symptoms in service. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the Veteran as a lay person has not been shown to be competent to offer an opinion on complex medical questions, such as whether a pre-existing right leg disability was aggravated beyond the natural progress of the disease during service. See Jandreau, 492 F.3d at 1377 (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). While the Veteran is competent to report what comes to him through his senses, he does not have medical expertise. See Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). Therefore, while the Veteran is competent to report that he experienced an increase in symptoms during service, the Board ultimately places far more probative value on the July 2012 medical opinion provided by the competent VA medical professional in terms of determining whether any increase in symptoms was permanent and beyond the natural progress of the disease. Furthermore, the Board notes that, although the Veteran has repeatedly described in detail how he experienced a worsening of symptoms during service, he has provided far less information regarding the progress of his disability following discharge. In this regard, the Board notes an assertion in his notice of disagreement that he has never been able to run right again. However, when providing a history during the VA examination, the only information offered as to the progress of his disability after discharge was a report that he had treatment in "recent years" and a description as to his current problems. Consequently, the Board finds that while the Veteran has clearly described a worsening of his symptoms during service, he has not directly asserted that such worsening continued on and after his discharge from service. Thus, the Board again finds the July 2012 medical opinion provided by the competent VA medical professional in terms of determining whether any increase in symptoms was permanent and beyond the natural progress of the disease. In summary, the Board concludes that the Veteran's right leg condition clearly and unmistakably existed prior to service and clearly and unmistakably was not aggravated beyond the natural progress of the disease during service. For this reason, and as no current right leg condition has otherwise been shown by credible or competent evidence to be related to his military service, the claim for service connection for a right leg condition must be denied. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a right leg condition (claimed also as a gun shot) is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs