Citation Nr: 1307789 Decision Date: 03/08/13 Archive Date: 03/11/13 DOCKET NO. 10-40 792 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a left ankle disability, to include as secondary to a service-connected right ankle disability. 2. Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The Veteran served on active duty from June to August 1980 and from May 1989 to October 1996. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision by which the RO, in pertinent part, denied entitlement to the benefits sought herein. FINDINGS OF FACT 1. A left ankle disability was not incurred in active duty service, has not been continuous since service separation, was not incurred within a year of service separation, is not otherwise shown to be causally related to service, and it is not the proximate result of a service-connected disability. 2. A low back disability did not become chronic in service, has not been continuous since service separation, was not incurred within a year of service separation, and is not otherwise shown to be related to the Veteran's active duty service. CONCLUSIONS OF LAW 1. A left ankle disability was not incurred in or a result of active duty service, is not presumptively linked thereto, and is not proximately due to or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 3.307, 3.309, 3.310 (2012). 2. A low back disability was not incurred in or a result of active duty service and is not presumptively linked thereto. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) VCAA and its implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). 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. In a timely VCAA notice letter in November 2009, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate a claims for service connection, what information and evidence must be submitted by the Veteran, and what evidence VA would obtain. The notice included provisions for disability ratings and for the effective date of a claim. The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence, including affording VA examinations in February and September 2010. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA opinions and findings obtained in this case are adequate, as the opinions are predicated on a full reading of the private and VA medical records in the Veteran's claims file. The VA nexus opinions provided consider all of the pertinent evidence of record, to include service treatment records, private treatment records, and the statements of the Veteran and provide complete rationales for the opinions stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues herein has been met. 38 C.F.R. § 3.159(c)(4). The information and evidence that has been associated with the claims file includes the Veteran's service treatment records, VA examination reports, post-service private treatment records, and the Veteran's statements. For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. Standard of Review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of 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; 38 C.F.R. § 3.102 (reasonable doubt to be resolved in veteran's favor). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Law and Regulations 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, 1131; 38 C.F.R. § 3.303(a). 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). 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). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as arthritis, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). 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 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. Layno, 6 Vet. App. 465. The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Medical evidence that is speculative, general or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). A physician's statement framed in terms such as "may" or "could" is not probative. Warren v. Brown, 6 Vet. App. 4, 6 (1993). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Discussion Left ankle The Veteran contends that a left ankle disability is related to service or, alternatively to the service-connected right ankle disability. After a review of all the evidence of record, lay and medical, the Board finds that the weight of the evidence demonstrates that the Veteran did not sustain a left ankle disability in service. The service treatment records reflect complaints pertinent to the right ankle. However, they are silent as to the left ankle. There is no sign of left ankle injury in service or any medical findings related thereto. Thus, a chronic left ankle disability was not incurred in service. If there is no showing of a 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). The Board next finds that the weight of the evidence demonstrates that symptoms of a left ankle disability have not been continuous since service separation in October 1996. The service treatment records reflect no diagnosis pertinent to the left ankle, and no left ankle disability was noted on service separation. The record contains no post-service medical records dated before 1999, and these do not concern the left ankle. The post-service medical records do not reflect any post-service treatment for the left ankle. The absence of post-service complaints, findings, diagnosis, or treatment after service tends to weigh against a finding of either chronic symptoms in service or continuous symptoms of a left ankle disability after service separation. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006) (holding that the Board may weigh the absence of contemporaneous medical evidence as one factor in determining credibility of lay evidence, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence). Similarly, the evidence in this case does not establish that the currently diagnosed left talonavicular degenerative joint disease manifested to a compensable degree within a year of service separation. The absence of any medical records pertaining to the left ankle in the years following service along with the lack of any assertion by the Veteran that a left ankle disability manifested in the first post-service year militates against a finding that the current left talonavicular degenerative joint disease manifested to a compensable degree in the first year after service. As such, service connection for left talonavicular degenerative joint disease cannot be granted presumptively. 38 C.F.R. §§ 3.307, 3.309(a). The Board further finds that the weight of the evidence demonstrates that the Veteran's current left ankle disability is not related to his active service. On September 2010 VA orthopedic examination, the examiner diagnosed talonavicular degenerative joint disease. After examining the Veteran and reviewing the pertinent medical records in the claims file, the examiner did not conclude that the Veteran's left ankle disability was related to service. While the Veteran is competent to report symptoms, he is not competent to opine regarding the origins of his left ankle disability, because that would constitute a complex medical question necessitating expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) ("Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer."). Thus, to the extent that the Veteran is alleging that a left ankle disability is directly related to service, the Board cannot rely on his assertions because they do not constitute competent medical evidence. The record contains no competent medical evidence of a nexus between the current left ankle disability and service. Therefore, the Board finds that that the lay and medical evidence that is of record weighs against the claim for service connection for a left ankle disability. 38 C.F.R. § 3.303(d). The Veteran has alleged that the current left ankle disability is due to the service-connected right ankle disability. To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin, 11 Vet. App. at 512; Reiber, 7 Vet. App. at 16-17. Service connection is in effect for a right ankle disability. After reviewing all the evidence, the Board finds that the competent evidence that is of record tends to weigh against a finding of a relationship between the currently diagnosed left ankle disability and the service-connected right ankle disability. As explained above, determining the origins of talonavicular degenerative joint disease requires medical expertise, and cannot, therefore, be accomplished by the Veteran who is a lay person. Jandreau, supra. The only competent medical evidence in this regard is that of the September 2010 VA examiner who explained that the Veteran had right ankle ligamentous damage resulting from events to include a sprain in service. Ligamentous damage was exclusive to the right ankle. Degenerative changes were common to both ankles and thus could not be attributed to the service-connected right ankle disability. Accordingly, the competent evidence of record indicates no causal connection between the left ankle disability and the service-connected right ankle disability, and service connection for a left ankle disability on a secondary basis is denied. 38 C.F.R. § 3.310. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for a left ankle disability, to include as secondary to a service-connected right ankle disability, and the claim must, therefore, be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Low back The Veteran contends that his currently diagnosed low back disability, namely degenerative joint disease and degenerative disc disease of the lumbar spine, is related to low back complaints and treatment in service. After a review of all the evidence of record, lay and medical, the Board finds that the weight of the evidence demonstrates that the Veteran did not sustain a chronic low back disability in service. The service treatment records reflect a diagnosis of low back strain in August 1987. No trauma was noted, but the Veteran had engaged in heavy lifting the day before. In July 1991, a history of low back pain was noted. The Veteran complained of low back pain although he denied trauma or undue stress to the low back. Mechanical low back pain was diagnosed. In August 1991, the Veteran complained of low back pain that began two weeks prior. Mechanical low back pain was diagnosed, and analgesics were prescribed. The service treatment records indicate no further complains regarding the low back, and the Veteran expressly denied recurrent back pain in the report of medical history he completed in July 1996 in connection with separation. The July 1996 separation medical examination report indicated that the spine was normal. Thus, a chronic low back disability was not incurred in service. If there is no showing of a 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). The Board next finds that the weight of the evidence demonstrates that symptoms of a low back disability have not been continuous since service separation in October 1996. The service treatment records reflect no low back disability on separation or in the several years following separation. The record contains no post-service medical records related to the low back dated before September 2001, and at that time, the Veteran reported low back pain for the previous 18 months. It follows that there were no low back symptoms between service separation and approximately March 2000 and that, therefore, low back symptoms were not continuous after service separation. Id. Similarly, the evidence in this case does not establish that the currently diagnosed arthritic low back disability manifested to a compensable degree within a year of service separation. The absence of any medical records pertaining to the lumbar spine in the several years following discharge along with the lack of any assertion by the Veteran that a low back disability manifested in the first post-service year militates against a finding that the current arthritic low back disability manifested to a compensable degree in the first year after service. As such, service connection for an arthritic low back disability cannot be granted presumptively. 38 C.F.R. §§ 3.307, 3.309(a). The Board further finds that the weight of the evidence demonstrates that the Veteran's current lumbar spine disability is not related to his active service. The record contains private medical records that show treatment of the low back since approximately September 2001. At that time, acute low back pain was diagnosed. An X-ray study of the low back conducted in September 2001 revealed no localized abnormality of the lumbar spine. In August 2002, the Veteran reported that three weeks earlier, he began to suffer from low back pain after moving tool cabinets at work. Acute disc herniation was diagnosed. As such, the Veteran underwent a lumbar epidural steroid injection. An August 2002 X-ray study of the low back indicated no abnormalities. In October 2002, the Veteran complained of a history of low back pain. However, he indicated that his back pain had its onset two weeks earlier after straining his low back at work. The examiner diagnosed chronic low back pain with an acute exacerbation. The Veteran was afforded a VA spine examination in February 2010. As stated, the examiner diagnosed degenerative disc disease and degenerative joint disease of the lumbar spine. The examiner reviewed the record, examined the Veteran, and obtained a full medical history from the Veteran. Upon doing so, the examiner concluded that the Veteran's current low back disability was not likely due to service. The examiner explained that the Veteran experienced no specific low back trauma in service and that after August 1991, there were no complaints or findings regarding the low back to include on service separation. The examiner emphasized that several years elapsed between service and the Veteran's first post-service treatment for the low back that occurred pursuant to a work-related injury. The examiner thus opined that the Veteran's low back disability was consistent with age and post-service injuries. In September 2010, the Veteran underwent a VA spine examination that yielded results similar to those contained in the February 2010 VA spine examination report. While the Veteran is competent to report symptoms, he is not competent to opine regarding the origins of his lumbar spine disability, because that would constitute a complex medical question necessitating medical expertise. See Jandreau, 492 F.3d at 1377 n.4 ("Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer."). Thus, to the extent that the Veteran is alleging that a low back disability is directly related to service, the Board cannot rely on his assertions because they do not constitute competent medical evidence. The only competent and probative medical evidence of record is that found in the 2010 VA examination reports. That evidence indicates no nexus between the Veteran's current low back disability and service. Therefore, the Board finds that that the competent and probative medical evidence that is of record weighs against the claim for service connection for a low back disability. 38 C.F.R. § 3.303(d). For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for a low back disability, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. (CONTINUED ON NEXT PAGE) ORDER Service connection for a left ankle disability is denied. Service connection for a low back disability is denied. ____________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals