Citation Nr: 1302008 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 06-38 908 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a left shoulder disability. 2. Entitlement to service connection for a left knee disability. 3. Entitlement to service connection for a left ankle disability. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD S. B. Mays, Counsel INTRODUCTION The Veteran served on active duty from May 1965 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In March 2012, the Board granted an initial 10 percent rating for scars, residuals of a left thigh wound, and dismissed an increased rating claim for PTSD, per the Veteran's request. The Board also remanded the issues on the title page of this decision for further development, and they have since returned for further appellate consideration. However, as will be explained below, the Board is not satisfied that there has been substantial compliance with the most recent remand directive as it pertains to the left knee claim. Stegall v. West, 11 Vet. App. 268 (1998). Although further delay is regrettable, the appeal must again be REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A chronic left shoulder disability was not manifest during active service, arthritis was not manifest within the first post-service year, and a left shoulder disability is not shown to have developed as a result of an established event, injury, or disease during active service. 2. A chronic left ankle disability was not manifest during active service, arthritis was not manifest within the first post-service year, and a left ankle disability is not shown to have developed as a result of an established event, injury, or disease during active service. CONCLUSIONS OF LAW 1. A left shoulder disability was not incurred or aggravated in service, nor may arthritis be presumed to have been incurred or aggravated therein. 38 U.S.C.A. §§ 1110, 1112, 1113, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. A left ankle disability was not incurred or aggravated in service, nor may arthritis be presumed to have been incurred or aggravated therein. 38 U.S.C.A. §§ 1110, 1112, 1113, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet.App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet.App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts. Duties to Notify and Assist As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all elements of a claim, including the disability rating and effective date elements. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has made clear that VCAA notice errors are not presumptively prejudicial, rather, must be determined on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of establishing there is a VCAA notice error and, moreover, above and beyond this, that the error is unduly prejudicial, meaning outcome determinative of the claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). A September 2004 letter satisfied these notice obligations in terms of apprising the Veteran of the type of evidence and information needed to substantiate the claims being decided herein and of his and VA's respective responsibilities in obtaining this supporting evidence. The RO sent him that letter prior to initially adjudicating this claim in the September 2005 rating decision at issue here, so in the preferred sequence. An additional VCAA letter was more recently sent to him in June 2012, and that letter also provided information concerning his claims. The claims have since been readjudicated in an October 2012 supplemental statement of the case (SSOC). The Veteran therefore has received all required notice concerning these claims. VA also has a duty to assist him in fully developing the evidence concerning this claim, which includes assisting him in the procurement of relevant records and, when necessary, providing an examination for a medical opinion. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. To this end, the claims file contains his service treatment records (STRs), post-service VA evaluation and treatment records, private medical evidence, records from the Social Security Administration, and lay statements. The Veteran had VA compensation examinations to determine the etiology of his left shoulder and left ankle disabilities, and the reports are in compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (A Veteran is entitled to compliance with a remand directive, and the Board itself commits error as a matter of law in failing to ensure compliance.). Unfortunately, treatment records from May 1985 to February 25, 2004 from the VA Medical Center in August, Georgia identified by the Veteran have not been obtained. After conducting a number of searches, the RO exhausted all avenues. As a result, the RO determined that the records are unavailable for review. In light of this determination, the Board finds that further efforts to obtain these records would be futile. The Veteran has not identified, and the record does not otherwise suggest, any additional existing evidence that is necessary for a fair adjudication of these claims that has not been obtained. In fact, in response to the latest SSOC, the Veteran indicated, in November 2012, that he had no additional evidence to submit and asked that his case be forwarded immediately to the Board. No further notice or assistance to him with the claims is required. 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). He has received all essential notice, has had a meaningful opportunity to participate in the development of this claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004). Legal Criteria - Service Connection In order to establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). 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) (2012). In addition, certain chronic diseases, including arthritis, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). For a 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." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. If the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's medical records, and all pertinent medial and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). In cases where a Veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C.A. § 1154(b) (West 2002) and its implementing regulation, 38 C.F.R. § 3.304(d) (2012), are applicable. This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence. If the Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that in the case of a combat Veteran not only is the combat injury presumed, but so is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). To establish service connection, however, there must be the evidence of a current disability and a causal relationship between the current disability and the combat injury. Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). 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 that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). 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). Analysis There is medical evidence of a current disability. In this regard, the Veteran is currently diagnosed with degenerative arthritis of the left shoulder and left ankle, as well as chronic left shoulder rotator cuff syndrome. See April 2012 VA examination report. The Veteran maintains that, during combat service, he fell into a punji stick pit, injuring his left shoulder and left ankle, in pertinent part. During his most recent VA examination in April 2012, he explained that such injury happened in January 1966. He stated that his left shoulder was hurt when his fellow service members pulled him out of the pit and as he came out, he twisted his left ankle. The January 1966 date is significant because at that time, the Veteran did sustain a wound to his left thigh and is currently service connected for residuals of left thigh wound. The January 1966 STRs do not shed any light as to the how the Veteran's left thigh was injured. There is no evidence showing that he injured himself during combat after falling into a punji pit. Nonetheless, the Veteran is competent to report that he fell into a pit and injured his left upper and lower extremities. Layno, 6 Vet. App. 465, at 470. Additionally, as mentioned, the Veteran served in combat and has been awarded the Combat Infantryman Badge and the Purple Heart. His DD Form 214 shows that his military occupational specialty was an infantryman and served in the Republic of Vietnam from December 1965 to December 1966. Moreover, on his 2004 claim, the Veteran indicated that he injured his left ankle in January 1966 and was treated at the Army Field Hospital in Phuc Vinh, Vietnam. Based on the Veteran's MOS, his STRs, and his decorations indicative of combat, the Board will concede injury to his left ankle and left shoulder during combat service. See 38 U.S.C.A. § 1154(b) (West 2002). Accordingly, the service connection element requiring an in-service disease, event, or injury has been met with regard to the left ankle and left shoulder claims. See Caluza, supra. Subsequent to the January 1966 left ankle and left shoulder injuries, the Veteran's STRS show no left shoulder or left ankle complaints, treatment, or diagnoses during the remainder of his four years of service. He was treated on numerous occasions for other disabilities in 1966, 1967, 1968, 1969, and 1970, including headaches, ear pain, diarrhea, back pain, jungle rot, durian, a rash, a chest cold, and a sore throat. His separation examination report dated in September 1970 indicates normal clinical evaluation of the upper and lower extremities. There is also no evidence of arthritis of the left shoulder or left ankle within the first post-service year. Post service, with regard to the left shoulder, Medical College of Georgia Hospital records show that, in February 1987, the Veteran had a slip and fall incident where he grabbed a bar for support, and hurt his left shoulder. In July 1987, he gave history of left shoulder pain for about six months duration. He underwent left shoulder arthroscopy and a left labrum resection for a torn labrum. A treating physician assessed the Veteran with osteoarthritis of the left shoulder in May 2004; however, the x-rays that were ordered showed no abnormality. A March 2005 QTC examination report also indicates normal x-rays of the left shoulder. Arthritis of the left shoulder, confirmed by x-rays, is not shown in the record until October 2007 (See April 2012 VA examination report). Similarly, arthritis of the left ankle is not shown in the record until December 2007, decades after service discharge. There is no competent and credible medical evidence of a nexus between the Veteran's left shoulder and/or left ankle disabilities and his service. In this regard, pursuant to the Board's March 2012 remand, the Veteran underwent additional VA examination to determine the likely etiology of any currently diagnosed left shoulder and ankle disability. An April 2012 VA examiner concluded that the Veteran's left shoulder and left ankle disabilities, in pertinent part, were less likely incurred in or caused by the claimed in-service injury. In arriving at such opinion, the examiner acknowledged that the event that the Veteran described of falling in the punji stick pit was documented. However, the examiner stated that there was no indication with subsequent visits of any significant problems with the left shoulder and left ankle following the January injury in the subsequent records until many years after service. The Board finds that the April 2012 VA opinion is factually accurate, fully articulated, and contains sound reasoning. The VA examiner reviewed the entire claims file, examined the Veteran, and included a synopsis of the Veteran's medical history and lay assertions. A medical opinion that is a factually accurate, fully articulated, and based on sound reasoning carries significant weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board assigns the April 2012 opinion significant probative value. The examiner conceded that the injury occurred in January 1966, but reasoned that the current disabilities were not related to service because the subsequent treatment records revealed no problems with the left shoulder or left ankle until many years after service. As noted above by the Board, the Veteran was treated on numerous occasions during service after the January 1966 injury, but not for his left shoulder or left ankle. In analyzing these claims, the Board considered the Veteran's lay assertions. The Veteran, as a layperson, is competent to report pain in a given joint, as it is readily observable. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, without the appropriate medical training and expertise, he is not competent to provide an opinion on a medical matter, such as the etiology of his left shoulder and left ankle disabilities, because this requires medical expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Therefore, although the Veteran's statements as to the etiology of his claimed disabilities have been given full consideration by the Board, they are not considered competent medical evidence and do not serve to link these disabilities to service. As to the Veteran's report of continuing left ankle and left shoulder symptoms since service, the Board finds that he is not credible in this regard. The Veteran was treated on numerous occasions and for numerous disabilities during service subsequent to his January 1966 injury to his left shoulder and left ankle. However, at no time did he report suffering from any symptoms related to his left shoulder or left ankle or seek treatment related to these joints. This is not a situation where there is a lack of medical records. To the contrary, the service treatment records show that Veteran was treated for many problems during the remaining four years of service, but not for his left shoulder or left ankle. Additionally, clinical evaluation of the left shoulder and left ankle was normal on service separation examination in September 1970. And after his separation from service, the first evidence related to the Veteran's left shoulder is dated in 1987, more than 17 years after service. During his treatment at that time, he made no mention of having any left shoulder symptoms prior to his February 1987 injury. The Veteran was not treated for his left ankle until years later. The fact that he did not complain of or seek treatment for left shoulder and left ankle symptoms during service between 1966 and 1970, was shown to have a normal left shoulder and left ankle upon service separation in September 1970, and is not shown in the record to have pertinent complaints, treatment, or a diagnosis until many years after service, weighs heavily against any claim he now makes that he has had problems ever since service. The Board is not holding that corroboration is required. Rather, the Board finds his assertions to be less credible than the negative contemporaneous records. In view of the foregoing, in addition to the April 2012 VA examiner's negative opinion, the Board finds that there is clear and convincing evidence that the Veteran's left ankle and left shoulder injury/condition during service was not a chronic condition(s) that persisted in the years following active duty. See Reeves, 682 F.3d 988 at 999-1000; see also 38 U.S.C.A. § 1154(b). Based on the foregoing, the Board finds that the preponderance of evidence is against the service connection claims for left shoulder and left ankle disabilities. In reaching this decision, the Board has considered the doctrine of reasonable doubt. As a preponderance of the evidence is against the Veteran's claims, the doctrine is not applicable. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a left shoulder disability is denied. Entitlement to service connection for a left ankle disability is denied. REMAND A review of the record reflects that further development is necessary prior to analyzing the left knee claim on the merits. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand orders. Where the remand orders of the Board were not substantially complied with, the Board itself errs in failing to insure compliance; in such situations the Board must remand back to RO for further development. See Stegall v. West, supra. In the March 2012 remand, the Board requested that the Veteran undergo a VA examination to determine the current nature and etiology of his left knee disability. He was afforded such an examination in April 2012; however, the Board finds the medical opinion concerning the left knee inadequate, as it does not comply with the Board's remand directives. In this regard, the April 2012 VA examiner concluded that the Veteran's degenerative arthritis of the left knee was less likely than not related to service. In support of that opinion, the examiner indicated that there are no significant knee problems in the STRs. However, as indicated in the prior remand, the STRs do show that, in February 1968, the Veteran reported pain in the medial aspect of the left knee, and x-rays of the left knee were taken but showed no evidence of abnormality. The Board specifically asked the examiner to address this in-service treatment for pain, but such was not accomplished. Because the examiner did not comply with the remand instructions, as required to do so, the claim must be remanded for a supplemental medical opinion. Additionally, the Board notes that service connection may be granted for a disability that is proximately due to or the result of a service-connected disability, which includes the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439, 448 (1995). Because the left knee appears to be in close proximity to the Veteran's left thigh wound, the Board finds that a VA opinion is also needed that addresses the relationship, if any, between the Veteran's left knee arthritis and his service-connected residuals of left thigh wound. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a VCAA letter on the issue of secondary service connection. See 38 C.F.R. § 3.310. 2. Return the Veteran's claims file to the VA examiner who conducted the April 2012 examination of the left knee for a supplemental medical opinion. If the requested examiner is no longer available, or if this examiner determines that another examination would be helpful, the Veteran shall be scheduled for a new VA examination. The examiner is asked to respond to the following: a. Clarify whether it is as likely as not (a 50 percent probability or greater) that the currently left knee disability is related to the Veteran's period of active service. In doing so, the examiner must address the January 1966 injury when the Veteran fell into a punji stick pit and February 1968 in-service treatment for left knee pain. b. Determine whether it is at least as likely as not that the current left knee disability is (i) proximately due to, or alternatively, (ii) aggravated by the Veteran's service-connected residuals of left thigh wound. A complete rationale should be provided for any proffered opinions. 3. Next, review the medical examination report obtained to ensure that the remand directives have been accomplished, and return the case to the examiner if all questions posed are not answered. 4. Finally, readjudicate the issue of entitlement to service connection for a left knee disability. If the benefit sought remains denied, the Veteran and his representative must be furnished an SSOC and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters 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. 2011). ______________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs