Citation Nr: 1308154 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 08-18 544 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for left lower leg, calf, nerve, and muscle damage (a left leg disability). REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD T. Adams, Counsel INTRODUCTION The Veteran had periods of recognized Merchant Marine service from May 1943 to June 1945. The Veteran subsequently served on active duty from September 1950 to August 1952. Resolving reasonable doubt in his favor, the Veteran had Merchant Marine service under the jurisdiction of the Army during the period from July 27, 1944 to October 31, 1944. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). This matter was previously remanded by the Board in March and December 2010 and most recently in July 2012. The Board is satisfied that the directives in these remands have been accomplished. The Board has reviewed the Veteran's physical claims file, as well as his electronic file through the "Virtual VA" system, to ensure a complete review of the evidence in this case. Please note 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 has current diagnoses of severe degenerative joint disease (DJD) of both knees and pitting edema over both legs. 2. Even assuming the credibility of the Veteran's account of in-service injury to his left leg, the preponderance of the evidence weighs against finding that his current left leg disabilities are causally or etiologically related to his period of active military service, to include any incident or event therein, or that DJD of the left knee manifested to a compensable degree within one year of separation from active service. CONCLUSION OF LAW The Veteran's left leg disability was not incurred in or aggravated by active military service nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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). In addition, the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006) requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date. Prior to the initial denial of the present claim, the RO advised the Veteran of what the evidence must show to establish entitlement to service-connected compensation benefits in a notice letter sent in May 2006. The RO also explained what evidence VA would obtain and make reasonable efforts to obtain on the Veteran's behalf in support of his claim. The RO further described what evidence that the Veteran should provide in support of his claim. Moreover, the RO explained how VA determines the disability rating and effective date of a disability once service connection has been established, which satisfied Dingess notice requirements. Because the Veteran was provided with proper notice with respect to his claim by way of the May 2006 pre-adjudication notice letter, the Board concludes that VA's duty to notify has been met, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed. Moreover, the Veteran and his representative were provided with copies of the above rating decision, the statement of the case, and the supplemental statement of the case, which include discussion of the facts of the claim, pertinent laws and regulations, notification of the bases for the decision, and a summary of the evidence considered to reach the decision. Regarding VA's statutory duty to assist in claims development, the Board notes that the Veteran's service treatment records (STRs) from his second period of service have been obtained, but STRs from his first period of service as a Merchant Marine are unavailable despite all available efforts to obtain such records, according to a VA memorandum dated in June 2011. In December 2011, the Veteran was informed that his complete STRs were unavailable for review because they were lost in a fire-related incident and he was asked to provide any copies he might have in his possession. The Court has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board's analysis has been undertaken with this heightened duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. Russo v. Brown, 9 Vet. App. 46 (1996). Post-service treatment records adequately identified as relevant to the claim have been submitted or otherwise obtained, to the extent possible, and are associated with the record. Furthermore, pursuant to the Board's July 2012 remand, the Veteran was afforded with a VA DBQ (Disability Benefits Questionnaire) knee and lower leg examination in July 2012. Based on review of the claims folder and interview and evaluation of the Veteran, the examiner concluded that it was less likely as not that the Veteran's currently diagnosed left leg disability was related to his active military service, as will be explained below. The opinion was supported by an adequate rationale and is deemed sufficient for the purpose of this adjudication. Neither the Veteran nor his representative throughout the course of this appeal have 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 adjudicated herein. Therefore, in view of the foregoing, the Board will proceed with appellate review. II. Service Connection 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 in the record. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence). 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 pieces of evidence that are 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); 38 C.F.R. § 3.102. 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 will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110 ; 38 C.F.R. § 3.303. Under Public Law No. 95-202 § 40, 91 Stat. 1433, 1449-50 (Nov. 23, 1977), service of American Merchant Marines in Oceangoing Service, as well as Civil Service crew members about U.S. Army Transport Service and Naval Transportation Service vessels, during the period from December 7, 1941 to August 15, 1945, is considered "active duty for the purposes of all laws administered by the Secretary of Veterans Affairs." See 53 Fed. Reg. 2775 (1988); see also 38 C.F.R. § 3.7(x)(15); Pacheco v. West, 12 Vet. App. 36, 37 (1998). Service connection may be granted for disability or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). As a general matter, service connection for a disability on the basis of the merits of such claim 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). Further, 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 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2012). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the disorders at issue are "chronic diseases" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 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). In addition, the law provides that, where a veteran served ninety days or more of active service, and certain chronic diseases, such as 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; 38 C.F.R. §§ 3.307, 3.309(a). 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. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay persons can also provide an eye-witness account of an individual's visible symptoms. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter 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"). 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, 1137 (Fed. Cir. 2006). Factors for consideration in assessing credibility include a showing of interest, bias, inconsistent statements, consistency with other evidence, and a lack of contemporaneous medical evidence, although that alone may not bar a claim for service connection. Buchanan, 451 F.3d at 1336-37; Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996), superseded in irrelevant part by statute, Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000). 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). In this case, the Veteran seeks entitlement to service connection for left lower leg, calf, nerve, and muscle damage. Specifically, the Veteran contends that he was injured on October 17, 1944 when the life boat he was on fell approximately four stories. As an initial matter, in the July 2012 decision, the Board found that the issue central to the case was the verification of the Veteran's claimed Merchant Marine service from July 27, 1944 to October 31, 1944 and found that the Veteran's claimed service in the Merchant Marines did occur, that it was under the jurisdiction of the Army, and that compensation may be paid for any injuries which arose during this time period. The Board notes that there is evidence of a current left leg disability. In this regard, on VA DBQ knee and lower leg conditions examination in July 2012, the Veteran was diagnosed with severe DJD of both knees and pitting edema over both legs. Thus, as the evidentiary record clearly shows a current left leg disability, the Board will now consider in-service incurrence, to include the Veteran's allegations of in-service left leg injury and continuity of left leg symptomatology since service. Service treatment records from the Veteran's second period of active service include an August 1950 pre-induction examination report and an August 1952 "AR" report which reflect diagnoses of pes planus, but otherwise normal clinical evaluations of the lower extremities. VA treatment records include an August 2005 report which notes a previous medical history of left leg pain from a war-related injury. A November 2005 vascular surgery clinic notes that the Veteran described the onset of acute leg swelling following a 40-foot fall while in the service in the 1940s, slowly enlarged at first, but stable for years. On examination, a vascular surgical resident diagnosed secondary lymphedema due to traumatic limb injury years ago. In an August 2005 statement, J.R. indicated that he and the Veteran served together during World War II in the Merchant Marines. He noted that on October 17, 1944, he and the Veteran were serving on the USS Yarmouth and that he was observing a mandatory lifeboat drill. He indicated that the Veteran was in his proper position to complete the drill. He stated that a less experienced sailor incorrectly pulled the davit release leaver causing the lifeboat to fall to the sea approximately four stories below. He noted that he specifically recalled the Veteran hitting his head, arms, and legs on the gunwale and interior of the lifeboat. He reported that he could see that the Veteran was seriously injured as a result of the fall. J.R. stated that he immediately initiated rescue procedures and that during this emergency procedure, he continuously observed the Veteran. He reported a head injury and indicated that the Veteran exhibited indications of pain, including a noticeable limp for the duration of the voyage. Pursuant to the Board's July 2012 remand, the Veteran was afforded a VA DBQ knee and lower leg conditions examination in July 2012 at which time the examiner reviewed the claims file and conducted a thorough examination of the Veteran. The examiner diagnosed severe DJD of both knees that was age-related and pitting edema over both legs most likely due to chronic venous insufficiency. The examiner opined that the Veteran's left leg disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale provided was that according to the Veteran he was injured in October 1944 during mandatory lifeboat training when the life boat accidently fell and the Veteran landed on top of it and was injured. However, there were no major injuries such as fractures or dislocations or other internal injuries or anything in the claims file about this accident. In addition, the Veteran went on to resume full duty, without restrictions, after the incident. The examiner also noted that there is nothing in the claims file to suggest Veteran receiving any medical evaluation or treatment for any injury to the left leg. The examiner found no evidence of nerve or muscle damage of the left leg. The examiner opined that the pitting edema was due to chronic venous insufficiency which could not be explained on the basis of an injury in October 1944 and noted that his left leg condition was similar to the condition of his right leg. It is the Board's duty to assess the credibility and probative value of evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. Owens v. Brown, 7 Vet. App. 429, 433 (1995). As true with any piece of evidence, the credibility and weight to be assigned to these opinions are within the province of the Board as the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). In assessing evidence such as medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Also, greater weight may be placed on one physician's opinion than another's depending on factors such as the reasoning employed by the physicians and whether (and the extent to which) they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). In this case, the Board finds the opinion of the July 2012 VA examiner to be more probative than the November 2005 VA opinion. The VA examiner opined that the Veteran's DJD of the knees and pitting edema of the legs was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale provided was that, according to the Veteran, he was injured in October 1944 during mandatory lifeboat training when the life boat accidentally fell and the Veteran landed on top of it and was injured. However, there were no major injuries such as fractures or dislocation or other internal injuries and he went on to serve full and unrestricted duty for several years. In addition, there was nothing in the claims file to suggest that he was receiving any medical evaluation or treatment for any injury to the left leg. The examiner further opined that the Veteran's DJD of both knees is age-related, that there was no evidence of nerve and muscle damage of the left leg, and that the pitting edema over the legs is due to chronic venous insufficiency which cannot be explained on the basis of injury in October 1944. The Board notes that the examiner provided a sound rationale in support of the conclusion and has the requisite medical expertise to provide a competent medical opinion regarding the cause of the Veteran's current left leg disability. The examiner also had sufficient data on which to base the conclusion-i.e., review of the Veteran's treatment records, post-service treatment records, and other pertinent evidence included in the claims file, as well as their own interview and examination of the Veteran. In light of the foregoing, the Board finds the VA examiner's opinion the most probative and persuasive evidence in this matter. The Board has considered the November 2005 VA surgical resident's opinion that the Veteran had secondary lymphedema due to traumatic limb injury years ago. However, the resident provided no rationale whatsoever in support of his opinion; 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, 349 (1998). In addition, there is no indication that the resident rendered his opinion following a review of all pertinent records, including a review of the claims file and the available STRs from the Veteran's second period of service which reflect no complaints of or diagnoses related to secondary lymphedema of the legs. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). Moreover, the opinion did not address the Veteran's DJD of the knees or pitting edema of the legs (diagnosed after a thorough examination of the Veteran in July 2012) or complaint of nerve and muscle damage of the left leg. Accordingly, the November 2005 VA opinion has little probative value. On review of the evidence above, the Board finds the Veteran does not have a left leg disability that is etiologically related to service. The Veteran has been afforded a VA DBQ examination in which the examiner, based on review of the evidence, stated a medical opinion against such an etiological relationship, and there is no contrary competent medical opinion of record. Further, there is no indication that degenerative changes became manifest to any degree during the first year after discharge from service, so presumptive service connection under 38 C.F.R. § 3.309(a) is not warranted. VA must consider all favorable lay evidence of record. 38 U.S.C.A. § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). Accordingly, in addition to the medical evidence above the Board has considered the lay evidence submitted by the Veteran in the form of his correspondence to VA. A layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Lay evidence can, in some circumstances, also be competent to establish a medical diagnosis. See Davidson, supra. In this regard, the Board recognizes that there is no bright line rule that laypersons are not competent to offer diagnoses or etiology opinions. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (rejecting the view that competent medical evidence is necessarily required when the determinative issue is medical diagnosis or etiology). Evidence, however, must be competent evidence in order to be weighed by the Board. Whether a layperson is competent to provide an opinion as to the etiology of a condition depends on the facts of the particular case. In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) drew support from Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) for support for its holding. Id. In a footnote in Jandreau, the Federal Circuit addressed whether a layperson could provide evidence regarding a diagnosis of a condition and explained that "[s]ometimes 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although the Veteran seeks to offer etiology opinions rather than provide diagnoses, the reasoning expressed in Jandreau is applicable. The Board finds that the question of whether the Veteran currently has a left leg disability, claimed as left lower leg, calf, nerve, and muscle damage, that is related to an in-service incident is too complex to be addressed by a layperson. While the Veteran is certainly competent to testify to symptoms he observed during and since his service, he is not competent to offer an opinion as to the cause of this disability. This connection or etiology is not amenable to observation alone. Rather it is common knowledge that such relationships are the subject of extensive research by scientific and medical professionals. Hence, the Veteran's opinion of the etiology of his current left leg disability is not competent evidence and is entitled to low probative weight. Furthermore, the Veteran's current left leg disability diagnosed as DJD of the knees and pitting edema was not shown until more than 60 years after his discharge from active duty. Such a lengthy time interval between service and the initial post-service manifestation of a disability for which service connection is sought is, of itself, a factor weighing against a finding of service connection. See Maxson v. Gober, 230 F. 3d 133-(Fed. Cir. 2000). As it relates to the Veteran's competent account of having sustained injury to his left leg in service, there is no indication in the record that his account of a left leg injury is not credible. In this regard, the Board has considered the credible account of "J.R." However, even assuming the credibility of the Veteran's account of having sustained injury to his left leg in service, the preponderance of the evidence weighs against the claim. The Veteran did not obtain medical care for his alleged left lower extremity until almost 61 years after service. Furthermore, a VA DBQ examiner has opined that the Veteran's current left leg disability is less likely related to the in-service injury in 1944. Thus, the most probative evidence of record reveals the Veteran's current left leg disability manifested many years after service, that his DJD of the knees is attributable to the aging process, and that pitting edema of the left leg is due to chronic venous insufficiency. Therefore, the Board concludes that the Veteran is not entitled to service-connected compensation benefits for a left leg disability, and the appeal is denied. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for left lower leg, calf, nerve, and muscle damage is denied. ____________________________________________ T. D. JONES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs