Citation Nr: 1307055 Decision Date: 03/01/13 Archive Date: 03/11/13 DOCKET NO. 13-01 188 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES Entitlement to service connection for muscle weakness of the right leg. REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran had active service from December 1942 to January 1946 and is in receipt of the Purple Heart Medal, among other awards and decorations. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board has reviewed the Veteran's physical claims file, as well as the Veteran's electronic file on the "Virtual VA" system, to ensure a complete review of the evidence in this case. Due to the Veteran's advanced age, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's currently diagnosed right lower extremity disability, claimed as muscle weakness of the right leg, did not manifest until many years after service and has not been competently linked to the Veteran's period of active service. 2. A preponderance of the evidence weighs against finding that the Veteran's currently diagnosed right lower extremity disability, claimed as muscle weakness of the right leg, is causally or etiologically linked to the Veteran's period of active military service or that arthritis manifested to a compensable degree within the first post-service year. CONCLUSION OF LAW Muscle weakness of the right leg was not incurred in or aggravated by active military service and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1131, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 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 notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Proper notice from 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. 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Collectively, in March 2009 and April 2009 notice letters sent prior to the initial denial of the claim, the RO apprised the Veteran of the information and evidence necessary to substantiate the claim, which information and evidence that he was to provide, and which information and evidence that VA would attempt to obtain on his behalf. In this regard, the RO advised the Veteran of what the evidence must show to establish entitlement to service-connected compensation benefits for the claimed disorder, and described the types of information and evidence that the Veteran needed to submit to substantiate the claim. The RO also explained what evidence VA would obtain and make reasonable efforts to obtain on the Veteran's behalf in support of the claim. The RO further informed the Veteran how VA determines the disability rating and effective date once service connection is established, which satisfied Dingess notice requirements. The Board finds that the notice letters fully satisfied VCAA notice requirements with respect to the claim. Moreover, the Veteran has been provided with a copy of the May 2010 rating decision, and the SOC, which included a discussion of the facts of the claim, pertinent laws and regulations, notification of the basis of the decision, and a summary of the evidence considered. While it does not appear that the Veteran's representative received a copy of the rating decision, the representative noted that he had reviewed the Veteran's complete file and specifically cited the October 2012 SOC when presenting a statement in lieu of a VA Form 646 in January 2013. The representative was provided with the opportunity to present evidence and argument in support of the Veteran's appeal at that time. Therefore, any error in providing notice resulted in no prejudice to the Veteran as it relates to the appeal. In view of the foregoing, the Board concludes that the requirements of the notice provisions of the VCAA have been met, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed. Regarding VA's duty to assist in claims development, the Board notes that the Veteran's service treatment records are fire-related and unavailable for review in this case. The Board is aware that when service records are unavailable through no fault of a veteran, it has a heightened duty to assist, as well as an obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). As will be explained below, however, the Board concludes that the heightened duty to assist has been met. In the March 2009 notice letter sent in connection with the current claim, the RO advised the Veteran that it would request service treatment records from the service department. At that time, the RO also asked the Veteran to provide any service treatment records within his possession. In March 2009, the RO requested the Veteran's service treatment records, and the National Personnel Records Center (NPRC) responded that the Veteran's service treatment records were fire-related. In April 2009, the RO advised the Veteran that the service treatment records were likely fire-related and asked him to complete a NA Form 13055 so that a thorough search for military medical records could be made. The Veteran returned the form in May 2009; however, the NPRC noted that additional information was needed. In November 2009, the RO notified the Veteran that the NPRC was unable to locate the service treatment records and future efforts to locate them would be futile. The RO noted that the Veteran had ten days to either submit information of the location of the service treatment records or submit any service treatment records in his possession. In December 2009, the Veteran responded that he was unable to provide the additional information requested. A Formal Finding on the Unavailability of Service Treatment Records was made the same month. In light of the foregoing actions, the Board finds that further efforts to obtain the Veteran's missing service records would be futile. The Board also finds that VA has fulfilled its duty to notify the Veteran of VA's inability to obtain records, as outlined in 38 C.F.R. § 3.159(e). In this regard, the Board notes that in collective March 2009, April 2009, and November 2009 notice and due process letters, the RO informed the Veteran that service treatment records were fire-related, adequately addressed its efforts to obtain the records, and adequately advised the Veteran that he was ultimately responsible for providing the evidence. The RO considered the claim after attempts to obtain the records were unsuccessful; thus, it was reasonable for the Veteran to know that his claim would be decided on the evidence of record unless he submitted the records unable to be obtained. Moreover, the RO advised the Veteran in both the rating decision and SOC that the claim would be reconsidered if the records became available at a later date. Moreover, even if additional service treatment records were currently located, service connection would not be awarded. As explained below, the VA medical examiner accepted the Veteran's account of in-service right leg injury during combat service as fact yet found that the Veteran currently demonstrates no right leg muscle weakness as a result of the injury. Thus, it is unlikely that any additional service treatment records, if obtained, would help substantiate the Veteran's claim. The Board additionally notes that the claims file contains all available evidence pertinent to the claim adjudicated herein. VA has requested records identified throughout the claims process. The Veteran was given appropriate notice of his responsibility to provide VA with any treatment records pertinent to the claim and the record contains sufficient evidence to make a decision on the claim. Pertinent post-service treatment records adequately identified as relevant to the Veteran's claim have been obtained, to the extent possible, or otherwise submitted and are associated with the record. There are no additional treatment records found in the Veteran's Virtual VA file. The Board would like to note that the case law does not lower the legal standard for proving a claim for service connection in such circumstances, 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). Also, the Veteran was afforded a medical examination in connection with the claim in May 2012. At that time, the VA medical examiner interviewed the Veteran, reviewed the claims file, and conducted a thorough physical examination, to include x-rays. After considering the relevant medical history and physical findings shown on examination, the VA medical examiner provided a medical opinion regarding the likelihood that the Veteran's complaints of right leg muscle weakness were attributable to the shrapnel wounds to the right lower extremity sustained during service in terms of relative probability. The medical opinion was supported by adequate rationale. For these reasons, the Board finds that no further medical examination or medical opinion is needed. Neither the Veteran nor the representative has made the RO or the Board aware of any other evidence relevant to his appeal that needs to be obtained. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim. In view of the foregoing, the Board will proceed with appellate review. Service Connection Legal Criteria It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). The Board has thoroughly reviewed all the evidence of record in this case. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked items of evidence not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a) (2012). 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b) (2012). Service connection may also 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). As a general matter, service connection for a disability requires (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In addition, the law provides that, where a veteran served ninety days or more of active service, and certain chronic diseases, such arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, 1 Vet. App. at 57. Service Connection for Right Leg Muscle Weakness In the present case, the Veteran seeks entitlement to service connection for right leg muscle weakness. He contends that the stiffness and generalized weakness involving the right lower extremity is attributable to the shrapnel wound sustained during World War II service. Combat veterans are entitled to have their statements as to injuries sustained in a combat setting accepted, under 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). That law does not by itself, however, establish a basis for the grant of service connection. The claimant is still required to meet other evidentiary burdens as to service connection, such as whether there is a current disability or whether there is a link between service and the currently claimed disability, both of which require competent evidence. See Wade v. West, 11 Vet. App. 302 (1998) (holding that evidence of a causal nexus between an in-service event and a current disability is still required even when a veteran is shown to have participated in combat); Collette v. Brown, 82 F.3d 389, 392 (1996). In this case, the Veteran's service treatment records are fire-related and unavailable for review. Nonetheless, the Board notes that the Veteran's WD AGO Form 53-55 shows receipt of the Purple Heart Medal for wounds received in action in France on February 21, 1945. As the Veteran has combat service, the presumption afforded combat veterans under 38 U.S.C.A. § 1154(b) applies. In consideration thereof, the Board finds the Veteran's account of having been injured by shrapnel to the right lower extremity during service to be credible as it is consistent with the circumstances, conditions, and hardships of his service. The Board also notes that the May 2010 VA medical examiner noted that the Veteran demonstrated two superficial scars on the right lower extremity and service connection has been established for the scars, which provides further evidence in support of the Veteran's account of having suffered from shrapnel injury to the right leg. Nonetheless, the Board finds that the weight of the lay and medical evidence of record is against finding that the Veteran currently suffers from residual muscle weakness and stiffness of the right lower extremity due to the combat injury. At the May 2012 VA medical examination, the Veteran specifically denied having a history of trauma to the muscles and told the VA medical examiner that he had not received any recent medical treatment for the right leg. On physical examination, the VA medical examiner noted that there was no evidence that the Veteran's right leg muscle had been injured, destroyed, or traversed, no intermuscular scarring, no residual nerve damage, no tendon damage, no muscle herniation, and no loss of deep fascia or muscle substance. The VA medical examiner also wrote "Yes" when asked if the Veteran's muscle function was normal in terms of comfort, endurance, and strength sufficient to perform activities of daily living. The VA medical examiner diagnosed the Veteran with multiple small superficial shrapnel wounds of the right lower extremity without nerve, artery, or muscle involvement. After considering the relevant medical history, complaints of symptomatology, and physical findings, to include x-rays showing degenerative osteoarthritis of the right knee and ankle, the VA medical examiner concluded that the Veteran had an overall mild general debility secondary to age. The VA medical examiner explained that none of the symptoms of weakness could be attributed to shrapnel wounds of the right lower extremity. The VA medical examiner additionally wrote the Veteran's complaints of stiffness and weakness in the right lower extremity were a normal acquired aging outcome and not related to the Veteran's shrapnel wounds. The VA medical examiner further noted that the medical opinion was based on current orthopedic literature of establishing causation and expected aging outcomes. The Board notes that the VA medical examiner had sufficient data and information on which to base the medical opinion. Although service treatment records were not available for review, the VA medical examiner considered the medical history documented in the claims file and related by the Veteran. The VA medical examiner also considered the physical findings, x-ray results, the Veteran's report of symptomatology, and pertinent medical literature and provided rationale for the conclusion. There is no competent medical opinion to the contrary of record. For these reasons, the Board finds that the medical opinion is of great probative value in resolving the medical question of whether the Veteran's right leg muscle weakness is causally or etiologically related to service. Regarding the diagnosis of osteoarthritis involving the right lower extremity, the Board notes that the Veteran does not contend and the evidence does not otherwise show that arthritis manifested during service or to a compensable degree within one year of service. The earliest medical evidence of record showing a diagnosis of osteoarthritis of the right knee and ankle is dated in May 2012, approximately sixty six years after service. The earliest complaint of right leg problems of record is dated in September 2009, approximately sixty three years after service. The Veteran has not alleged a continuity of symptomatology since service nor is it otherwise shown. Furthermore, while the Veteran has asserted that a causal or etiological relationship between his muscle weakness of the right leg and active service exists, he, as a lay person, lacks the medical training to provide a competent medical opinion regarding the cause or etiology of his muscle weakness of the right leg. Therefore, the Veteran's opinion is afforded no probative value. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) Thus, while the Veteran is currently diagnosed with a right lower extremity disability, it first manifested many years after the Veteran's separation from active service and the only competent medical opinion evidence of record attributes the Veteran's symptoms of stiffness and weakness to his age, not a right leg disability etiologically related to active service. Therefore, in consideration of the foregoing, the Board finds that the preponderance of the evidence weighs against the Veteran's claim, and service connection for muscle weakness of the right leg is not warranted. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for muscle weakness of the right leg is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs