Citation Nr: 1308158 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 08-39 236 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for residuals of a left ankle injury. 2. Entitlement to service connection for a low back disorder. REPRESENTATION Veteran represented by: Jeffrey J. Bunten, Attorney ATTORNEY FOR THE BOARD C. Fields, Associate Counsel INTRODUCTION The Veteran had active service from February 1973 to February 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In his December 2008 substantive appeal (VA Form 9), the Veteran requested a hearing before a Veterans Law Judge sitting at the RO. However, he withdrew this request in August 2009, and he has not submitted a new request for a Board hearing. Thus, the hearing request has been withdrawn. 38 C.F.R. § 20.704 (2012). The Board notes that the Veteran's claims for a left ankle disorder and a low back disorder were previously denied in a May 1977 rating decision. In June 2010, the Board reopened the previously denied claim for a left ankle disorder, and found that the claim for a low back disorder must be reviewed de novo due to the receipt of service treatment records. The Board then remanded the merits of these claims to the RO for additional development and consideration. As discussed below, the remand directives were accomplished, and the case is now ripe for adjudication. FINDINGS OF FACT 1. A current left ankle disability, to include arthritis, was not shown during service or to a compensable degree within one year after service, there is no showing of continuity of symptomatology, and there is no competent evidencing causally relating the current disability to in-service injury or treatment. 2. A current low back disability, to include arthritis, was not shown during service or to a compensable degree within one year after service, there is no showing of continuity of symptomatology, and there is no competent evidencing causally relating the current disability to in-service injury or treatment. CONCLUSIONS OF LAW 1. The criteria to establish service connection for residuals of a left ankle injury have not been met. 38 U.S.C.A. §§ 1110, 1131, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). 2. The criteria to establish service connection for a low back disorder have not been met. 38 U.S.C.A. §§ 1110, 1112, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations, VA is required to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice must inform the claimant of any information and evidence not in the 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. Quartuccio v. Principi, 16 Vet. App. 183, 186 (2002). Notice should be provided to the claimant prior to the initial unfavorable decision on the claim. Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). These notice requirements apply to all five elements of a service connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has been notified of the evidence and information necessary to substantiate his service connection claims and to establish a disability rating and effective date, including in a September 2010 letter, as directed in the Board remand. The timing defect of the September 2010 letter was cured by the subsequent readjudication of the merits of the Veteran's claims in a January 2013 supplemental statement of the case. See Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Concerning the duty to assist, the Veteran's service treatment and personnel records, as well as all identified and available post-service records, have been obtained and considered. As directed in the Board remand, the RO requested the Veteran to identify any pertinent, outstanding records, and to provide authorization for VA to obtain any non-VA records, or to provide copies of those records. In response, the Veteran provided additional private records. VA treatment records were also obtained. In addition, records concerning the Veteran's disability benefits from the Social Security Administration (SSA) have been obtained and considered. The Veteran's Virtual VA file (a highly secured electronic storage system) has also been reviewed, and all pertinent records are also associated with the paper file. To the extent that any pertinent medical records may remain outstanding, they have not been identified by the Veteran, nor has he authorized VA to obtain any non-VA records. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (VA's duty to assist in developing the pertinent facts and evidence in connection with a claim is not a one-way street, and the Veteran has a responsibility to cooperate in such development). Therefore, VA has made all appropriate attempts to obtain records. Additionally, as directed in the Board remand, the Veteran was afforded a VA examination in December 2012 to determine the nature and likely etiology of his claimed left ankle and low back disorders. Neither the Veteran nor his attorney have argued that this examination is inadequate for adjudication purposes, and the Board also finds no inadequacies. In particular, the examiner reviewed the entire claims file and offered well-reasoned opinions as to the etiology of the claimed disorders, based on all available lay and medical evidence. The examiner's conclusions are also consistent with the Board's credibility determinations herein. Given the above, the Board finds that the prior remand directives have been satisfied. See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008). Another remand would serve no useful purpose, as it would unnecessarily impose additional burdens on VA with no benefit to the Veteran. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). VA has satisfied its duties to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceedings. As such, the Veteran will not be prejudiced by a decision on his claims. II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Where a disease is diagnosed after discharge, service connection may be granted when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113; 38 C.F.R. § 3.303(d). Further, arthritis (or degenerative joint disease) will be presumed to be service-connected as a chronic disability if it is shown to have manifested to a degree of at least 10 percent within one year after service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service, or within the presumptive period after service, either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Generally, to establish direct service connection, there must be medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). Under certain circumstances, lay statements may be sufficient for service connection by establishing the occurrence of lay-observable events, the presence of disability, or symptoms of disability that are susceptible to lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In particular, the nexus element may be established based on competent and credible medical or lay evidence of continuity of symptomatology for a listed chronic disability. See Barr, 21 Vet. App. at 307. When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. When all of the evidence is assembled, VA must determine whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim will be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54-55 (1990); Alemany v. Brown, 9 Vet. App. 518 (1996). Left ankle The Veteran contends that he has a current left ankle disorder as a result of an injury incurred during basic training in February or March 1973. Service treatment records confirm that the Veteran was treated for left ankle sprain over the course of several weeks in March 1973. He was noted to have minimal swelling at that time, and he was treated with ACL wrap, crutches, and a profile for no running or jumping. X-rays were negative on March 5 and March 20, 1973. Thereafter, in a May 1973 private record, the Veteran was noted to have no ankle edema and no limitation of bone or joint motion. In a June 1973 report of medical history completed at the time of an examination for Medical Evaluation Board (MEB) proceedings, he reported "yes" to swollen and painful joints but "no" to foot trouble. No detail was provided, but there were no clinical abnormalities of the feet or lower extremities. A subsequent evaluation for MEB proceedings in April 1976 also showed no clinical abnormalities of the feet and lower extremities. The Veteran was also treated in service for his left foot and toes on several occasions, including in January 1974, March 1974, and April 1975. However, there was no reference to the ankle at those times. Further, he is already separately service-connected for a left foot or metatarsal condition. At a January 1977 examination for discharge from service, the Veteran denied any swollen or painful joints, as well as foot trouble. Although he reported arthritis, bone or joint or other deformity, and loss of finger, these were related to amputated fingers. The Veteran reported a history of having had a "cast" on his ankle during basic training due to some pulled ligaments. Clinical evaluation showed no abnormalities of the lower extremities and feet. In February 1977, the Veteran indicated that there had been no change in his condition. The Veteran filed a claim for VA benefits in February 1977, shortly after discharge from service, stating that he hurt his ankle in February or March 1973. That claim was denied based on a finding that he had recovered from the treatment during service and there was no disability due to residuals of ankle injury. Again, the Board in June 2010 reopened the claim and thus a de novo review of the entire record will be undertaken. The evidence of record includes post-service non-VA treatment records dated from 1992 to 1998 and from 2006 to July 2012, including records from the SSA in connection with the Veteran's disability benefits, and VA treatment records dated from June 2012 to August 2012. Such records contain no references to a left ankle injury during service or any current or chronic left ankle symptoms. During his December 2012 VA examination, the Veteran reported hurting his left ankle at the beginning of basic training in February 1973 when another soldier fell on top of him. He stated that he elected to "tough it out" and never received medical care for the ankle. As noted above, the Veteran's left ankle injury is confirmed by the service records, and he did receive treatment including an Ace bandage wrap and crutches, but there was no cast or evidence of fracture. The Veteran reported working as an electrician for ten years, and receiving SSA disability after he developed seizures in 1992. During the examination, he reported that he had no current problems with the ankle and that all of his problems related to his back. The VA examiner opined that the Veteran's claimed left ankle disorder was less likely than not (less than 50 percent probability) incurred in or caused by in-service injury, event, or illness. The examiner reasoned that the Veteran was able to work successfully as an electrician for at least ten years before he was disabled from a seizure disorder, and that such occupation involved heavy lifting and climbing. The examiner further reasoned that the Veteran's discharge and MEB evaluations during service from 1974 to 1977 showed normal examinations regarding the lower extremities. In addition, the Veteran did not mention any ankle problem when he filed his claim for SSA disability benefits. As such, it was not likely that the current left ankle problem was related to his injury in 1973. The Board finds the December 2012 opinion to be highly probative, as it was definitive, based upon a complete review of the Veteran's entire claims file, including both the medical and lay evidence, and supported by well-reasoned explanation. Further, the examiner's findings are consistent with the Board's credibility findings herein as to the timing of Veteran's left ankle symptoms, as discussed below. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (among the 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). Considering all available lay and medical evidence, the Board finds that service connection is not warranted for any current left ankle disorder, to include arthritis. The Board has considered the Veteran's statement in his August 2007 claim that he was experiencing problems due to his left ankle injury during service. In this regard, the Veteran is competent to report observable symptoms such as ankle pain and limitation of motion after the in-service injury. See Barr, 21 Vet. App. at 307-08; Jandreau, 492 F.3d at 1376-77. However, the Board finds such testimony to be not credible, as it is inconsistent with the other evidence of record. As noted above, after his March 1973 left ankle injury, the Veteran denied any joint or feet problems, and no clinical abnormalities were found in the feet or lower extremities during several evaluations in service. Although the Veteran reported the history of injury during his January 1977 separation examination, he did not report any symptoms at that time, and no pertinent clinical abnormality was found. Significantly, there is no indication of any treatment for left ankle symptoms or disability after service, including in treatment records dated from 1992 through 1996 and from 2006 through 2012. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred during military service, which resulted in a chronic or persistent disorder). In addition, the Veteran did not describe any left ankle problems, and no abnormalities were noted, in statements and medical evaluations undertaken in connection with his SSA disability claim in 1993 and 1994. Further, as noted by the VA examiner, the Veteran was able to work successfully as an electrician, which involved climbing ladders and lifting heavy items, for at least ten years after service. This weighs against a finding of chronic or persistent left ankle symptoms during that time. The Veteran even denied ankle problems at his recent VA examination. Again, it is not in dispute that the Veteran injured his left ankle in service. However, the more probative and persuasive evidence weighs against a finding of any persistent symptoms in the left ankle from the time of that injury to the present. Rather, his symptoms appear to have resolved prior to separation, as evidenced by the normal clinical findings, and his denial of foot problems on in-service examinations following his injury, to include at his separation examination. Further, there is no showing of arthritis to a compensable degree in the left ankle within one year after discharge from service. As such, there is no showing of chronic disability during or within one year after service, and no showing of continuity of symptomatology. Additionally, there is no competent nexus to service. Rather, the VA examiner opined that any current left ankle disability was less likely as not incurred as a result of any injury or event during the Veteran's military service. This opinion is highly probative and persuasive, as it was based on consideration of all lay and medical evidence of record, and is supported by well-reasoned rationale. To the extent that the Veteran believes that he has a current left ankle disorder as a result of the injury during service, he is not competent to offer an opinion as to the etiology of his current left ankle disability. Rather, this question requires specialized knowledge, training, or experience due to the Veteran's medical history and the involved bodily system, as well as the Board's findings herein that he is not credible with respect to continuity of symptomatology. See Jandreau, 492 F.3d at 1376-77; Barr, 21 Vet. App. at 308. There is no medical evidence of record to rebut the VA examiner's opinion against the claim or otherwise diminish its probative weight. See Wray v. Brown, 7 Vet. App. 488, 492-93 (1995). In sum, the evidence does not show a chronic left ankle disability during active service, or arthritis to a compensable degree within one year after service, and there is no competent evidence linking the Veteran's current disability to service. As such, the preponderance of the evidence is against service connection on a direct or presumptive basis, and the claim must be denied. 38 C.F.R. § 3.102. Low back The Veteran contends that he has a current low back disorder as a result of injury during service in July 1973. In his August 2007 claim, he reported that his back was in traction for 1-3 weeks and he was on "medical hold" for 8 weeks. Service treatment records confirm that the Veteran was treated for low back pain in 1973. In a June 1973 examination for Medical Evaluation Board (MEB) proceedings, he reported "don't know" to recurrent back pain. No detail was provided, but there were no pertinent clinical abnormalities found. On August 1, 1973, x-rays were conducted, showing a transitional body at the lumbosacral junction and no fracture. In an August 1, 1973, request for reconsideration of a Medical Evaluation Board (MEB) decision, the Veteran stated that he wanted to be discharged, in part because he had injured his back while lifting weights in 1967 (prior to service) and also in August 1973. On August 15, 1973, the Veteran reported falling down two steps two days earlier. He was treated with bed rest and medications for five days, which provided relief. X-rays were conducted for acute low back pain on August 20, 1973, which showed no significant abnormality. The Veteran was restricted from overhead lifting and other movements due to the finger amputations, but there is no indication of any profile or restrictions related to the low back. The Veteran subsequently reenlisted for service, but he again underwent MEB proceedings in 1976. An April 1976 evaluation for such proceedings notes that the Veteran had previously strained his back during service, and that this ultimately resolved. The Veteran reported that he continued to have occasional back pain when lifting objects or getting into a certain position. He was counseled on care, and it was noted that he should have no further difficulties if he took appropriate care. Physical examination of the low back was normal. At his January 1977 examination for discharge from service, the Veteran again checked "don't know" for recurrent back pain. Although he reported arthritis, bone or joint or other deformity, and loss of finger, these were noted to be related to amputated fingers. The Veteran reported a history of hurting his back in 1973. Clinical evaluation of the spine showed no abnormalities. In February 1977, the Veteran indicated that there had been no change in his condition. In contrast to the left ankle, the Veteran has complained of low back symptoms for many years, and medical records clearly reflect a current disability. For example, the December 2012 VA examiner diagnosed osteoarthritis, sprain or strain of the back, spondylolisthesis, and scoliosis. See also, e.g., February 2007 examination for aid and attendance (noting degenerative changes of the thoracic vertebrae, chronic low back pain with radicular pain in the right lower leg); August 2007 CT scan for muscle weakness and low back pain, October 2007 and August 2010 x-rays. However, the evidence of record also shows that the Veteran had a significant low back injury while at work in the early 1980s. He described his work injury in a private neurologic treatment session in December 1993. He stated that he had back problems after injuring himself in 1986 while picking up objects. Evaluation at that time, including a myelogram, showed a bulging disc with no need for surgery. The Veteran reported undergoing physical therapy and then returning to work as an electrician in 1988. He was restricted to lifting no more than 20-25 pounds, and he had learned to squat while lifting. The December 1993 neurologist assessed low back pain with findings suggestive of L5 radiculopathy. Similarly, a January 1994 evaluation for the Veteran's SSA disability claim referenced his report of back problems with an approximate onset date of 1986. The October 1994 SSA decision then summarizes the Veteran's testimony that he injured his back in 1980, he was off work for 18 months at that time, and he was restricted to no lifting over 20 to 25 pounds. The Veteran testified that he has had a recurrence of back pain and has taken many medications since that time. The evidence also shows that the Veteran has had frequent falls and suffered from frequent violent seizures since March 1992 that have resulted in back injuries. For example, the Veteran reported to the SSA in August 1993 that he blacks out and wakes up with his joints hurting. A September 1993 private record notes that the Veteran fell off a ladder during a seizure in March 1993. He was also noted to have a history of chronic low back pain, with reference to the 1986 myelogram showing a bulging disc. In a March 1998 private record, the Veteran complained of seizures for six years, as well as confusion and hurting his back during violent seizures, and a history of low back pain. In November 2006, the Veteran reported having seizures for 15 to 17 years, and he was noted to have injuries to the back resulting in primarily right-sided back and leg pain. Several more recent private records, such as in May 2010, note that the Veteran was having frequent falls. During the December 2012 VA examination, the Veteran reported injuring his back after basic training when he was on leave and fell on a porch. He received conservative treatment for 3-4 days at a civilian facility, and then he was sent back to the base. The Board notes that this is consistent with the Veteran's service records concerning the injury and treatment in August 1973, as summarized above. The Veteran reported that he worked as an electrician until he had a seizure in 1992, and he received SSA disability in 1994 for seizure and low back pain. He stated that he missed work for 18 months due to a back injury. The VA examiner opined that the Veteran's current low back disability was less likely than not (less than 50 percent probability) incurred in or caused by in-service injury, event or illness. He noted that the Veteran's back problem appeared minor at best based on the medical records, although he may also have neuropathy or radiculopathy and other disorders. The examiner also reasoned that the Veteran reported for the purposes of his SSA disability claim that he injured his back in 1986, with no mention of injury during service, and the Veteran also had multiple injuries while at work after service due to falls. The Board finds the December 2012 opinion to be highly probative and to carry significant weight, as it was definitive, based upon a complete review of the Veteran's entire claims file, including both the medical and lay evidence, and supported by well-reasoned explanation. Further, the examiner's findings are consistent with the Board's credibility findings herein as to the timing of Veteran's low back symptoms. Considering all available lay and medical evidence, the Board finds that service connection is not warranted for the Veteran's current low back disability, to include arthritis. Although the Veteran reported injuring his back in 1967 (prior to service) in an August 1973 motion to reconsider the decision in MEB proceedings, he did not report recurrent back pain, and no clinical abnormality was found, in the January 1973 enlistment examination. Therefore, he is presumed to have been in sound condition upon entry into service. See 38 C.F.R. § 3.304(b). There is no clear and unmistakeable evidence that the Veteran had a preexisting low back disability, or that any such condition was not aggravated beyond the natural progress of the disease during service. Therefore, the presumption of soundness is not rebutted, and service connection will be considered based on incurrence, not aggravation. Id.; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); see also Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). Although the Veteran is competent to report having continuing observable symptoms such as low back pain or limitation of motion after his in-service injury in August 1973, the Board finds any such testimony to be not credible. Such testimony is inconsistent with the other evidence of record, as discussed below. Again, the Veteran indicated that he did not know whether he had recurrent back pain during several evaluations after his August 1973 treatment for low back injury. The prior low back strain was noted to have resolved in the April 1976 MEB proceedings. Although the Veteran reported occasional back pain when lifting items or moving in a certain position in April 1976, no clinical back abnormality was found at that time or during the January 1977 separation examination. Additionally, there is no indication of any treatment for low back symptoms or disability after service until the early 1980s. See Maxson, 230 F.3d 1330. Notably, the Veteran expressly stated for treatment purposes in the 1990s that his chronic low back symptoms began after the work injury in the early 1980s, and that he missed 18 months of work at that time. He did not mention his previous injury during service for treatment purposes, or for the purposes of his SSA disability claim. The Board finds those records, which were made many years prior to the Veteran's current claim for VA compensation, to be highly probative as to the timing of his low back symptoms. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made for the purposes of medical treatment may be afforded greater probative value because there is a strong motive to tell the truth in order to receive proper care); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (lay testimony may not be ignored simply because the witness is an interested party, but such interest in the outcome may affect the credibility of testimony). Accordingly, the more probative and persuasive evidence establishes that the Veteran did not have persistent or chronic symptoms in the low back after his 1973 injury during service. Rather, he began to have chronic and persistent symptoms after the work injury in the early 1980s. Further, arthritis was not diagnosed until many years after service, and there is no showing of arthritis to a compensable degree within one year after the Veteran's discharge from service, or by February 1978. As such, there is no showing of chronic disability during or within one year after service, and no showing of continuity of symptomatology. Additionally, there is no competent nexus to service. The VA examiner opined that any current low back disability was less likely as not incurred as a result of any injury or event during the Veteran's military service. This opinion was based on consideration of pertinent lay and medical evidence, and is supported by well-reasoned rationale that is consistent with the Board's credibility findings herein. Although the Veteran believes that his current low back disability is due to his injury during service, he is not competent to offer an opinion as to the causation of his current disability. Rather, this question requires specialized knowledge, training, or experience due to the Veteran's complex medical history and the complex nature of the spine. As noted above, he had a significant post-service work injury, frequent violent seizures, and multiple falls, and the Board finds herein that he is not credible with respect to continuity of symptomatology. See Jandreau, 492 F.3d at 1376-77; Barr, 21 Vet. App. at 308. Additionally, there is no medical evidence of record to rebut the VA examiner's opinion against the claim or otherwise diminish its probative weight. See Wray, 7 Vet. App. at 492-93. In sum, the evidence does not show a chronic low back disability during active service, or arthritis to a compensable degree within one year after service, and there is no competent evidence linking the Veteran's current disability to service. As such, the preponderance of the evidence is against service connection on a direct or presumptive basis, and the claim must be denied. 38 C.F.R. § 3.102. (CONTINUED ON NEXT PAGE) ORDER Service connection for residuals of a left ankle injury is denied. Service connection for a low back disorder is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs