Citation Nr: 1309332 Decision Date: 03/19/13 Archive Date: 04/01/13 DOCKET NO. 04-12 073 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for arthritis of the bilateral legs and knees. 2. Entitlement to service connection for varicose veins. 3. Entitlement to service connection for a bilateral foot disorder, to include pes planus and hypermobile feet. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from October 1966 to October 1967. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a December 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In June 2008, October 2009, and September 2011, the Board remanded the appeal for further development, and it now returns to the Board for appellate review. In March 2008, the Veteran testified at a personal hearing before the undersigned, sitting at the RO. A transcript of the hearing is associated with the claims file. The issues of entitlement to service connection for varicose veins and a bilateral foot disorder are addressed in the REMAND portion of the decision below, and are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDING OF FACT The medical evidence does not establish a diagnosed disorder of bilateral arthritis of the legs; arthritis of the bilateral knees was not incurred in the veteran's active duty military service, nor may it be presumed to have been incurred in such service. CONCLUSION OF LAW Bilateral leg and knee arthritis was not incurred in or aggravated by the Veteran's active duty military service. §§ 1101, 1110, 1112, 1113, 1116 (West 2002); 38 C.F.R. §§ 3.301, 3.303, 3.307, 3.309 (2012). ' REASONS AND BASES FOR FINDING AND CONCLUSION I. Stegall Considerations The Board observes that this case was remanded by the Board in June 2008, October 2009, and October 2011. The United States Court of Appeals for Veterans Claims (Court) has held "that a remand by this Court or the Board confers on the veteran or other claimant, as a matter of law, a right to compliance with the remand orders." See Stegall v. West, 11 Vet. App. 268, 271 (1998). The purpose of the June 2008 remand was for corrective VCAA notice to be issued and a VA examination to be scheduled that assessed the relationship between the claimed disabilities and the Veteran's Osgood-Schlatter's disease. The October 2009 remand was issued so that outstanding VA treatment records could be obtained and a VA examination scheduled that again addressed secondary service connection, as well as aggravation of any preexisting disabilities. Finally, the September 2011 VA examination ordered that another VA opinion be obtained on the question of direct and presumptive service connection. A review of the post-remand record shows that the Veteran's VA examinations were performed in November 2008, May 2010 (with a March 2011 addendum), and October 2011. Additionally, a VCAA letter was sent in July 2008, and up-to-date VA treatment records were added to the claims file. Therefore, the Board determines that the RO/AMC substantially complied with the Board's orders in the in June 2008, October 2009, and September 2011remands, and that the Board may now proceed with adjudication of the claim. II. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), enacted November 9, 2000 (codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002) imposes certain duties upon VA to notify the claimant of the shared obligations of the claimant and VA in developing his or her claims and to assist the claimant by making reasonable efforts to obtain relevant evidence in support of the claim. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA must inform a claimant about the information and evidence not of record that is necessary to substantiate the claim, the information and evidence that VA will seek to provide, and the information and evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (revised 73 Fed. Reg. 23353-23356, April 30, 2008); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Additionally, in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that VCAA notice requirements also apply to the evidence considered in determinations of the degree of disability and effective date of the disability once service connection has been established. VCAA notice must be provided before the initial unfavorable Agency of Original Jurisdiction (AOJ) decision on the claim for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was provided with a VCAA notification letter in May 2002 for his arthritis claim, prior to the initial rating decision issued in December 2002. The letter informed the Veteran of the evidence necessary to establish service connection, of how VA would assist him in developing his claim, and of his and VA's obligations in providing such evidence for consideration. The Board observes that the Veteran was not offered information as to how to substantiate disability ratings and effective dates until the July 2008 VCAA notice. Although this notice is untimely, the Board finds that no prejudice to the Veteran has resulted. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced thereby). As the Board determines that a preponderance of the evidence is against the claim for service connection for arthritis, any deficiency of timing with respect to disability ratings and effective dates is rendered moot. Therefore, the Veteran was provided with all necessary VCAA notice prior to the initial adjudication of the claim. Accordingly, the Board determines that the content requirements of VCAA notice have been met and the purpose of such notice, to promote proper development of the claim, has been satisfied. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). Based on the above, the Board finds that further VCAA notice is not necessary prior to the Board issuing a decision. VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim and providing him with a VA examination. The Veteran's service treatment records, VA and private treatment records, disability records from the Social Security Administration (SSA), and October 2002, November 2008, May 2010, and October 2011 VA examination reports with March 2011 addendum were reviewed by both the AOJ and the Board in connection with adjudication of the claims. The Veteran has not identified any additional, relevant treatment records the Board needs to obtain for an equitable adjudication of the claims. With regard to the VA examination, the Board notes that once 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). In this case, each examiner noted the Veteran's self-reported medical history and relevant documents of record, and clinically evaluated the Veteran. The Board notes that the October 2002 VA examiner did not have access to the claims file, but this fact alone does not render that examination inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). The examiner documented the subjective history of the Veteran, which is consistent with the claims file documentation as of that time. Moreover, the issue at the time was secondary service connection, which as noted below is now moot. Hence, to the extent the lack of the claims file may have affected the probative value of the opinion, such is not relevant to this decision. It is the findings at the examination and the Veteran's subjective symptoms that are most salient to this decision, and this information would not have been altered by the claims file being present. Finally, with respect to the opinions provided, the Board will further address their probative value in the analysis below. However, there is nothing to suggest that the multiple VA examinations and opinions did not yield the opinion and rationale necessary to enable adjudication of the claim. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion for the issue on appeal has been met. 38 C.F.R. § 3.159 (c)(4) (2012). In light of the above, the Board concludes that the medical evidence of record is sufficient to adjudicate the Veteran's claim without further development and additional efforts to assist or notify the Veteran in accordance with VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (noting that strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran). Therefore, the Board determines that the Veteran will not be prejudiced by the Board proceeding to the merits of the claim. III. Analysis Service connection may be granted for disability arising from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a). Connecting the disability to service may be accomplished through statutory presumption or through affirmative evidence that shows inception or aggravation during service, or that otherwise indicates a direct relationship between service and the current disability. 38 C.F.R. §§ 3.303(a), (d). The statutory presumptions and VA regulations implementing them are intended to allow service connection for certain diseases when the evidence might otherwise not indicate service connection is warranted. See 38 C.F.R. § 3.303(d). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including arthritis, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. However, presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. 38 C.F.R. § 3.303(d). Direct service connection may be granted for disease or disability diagnosed in service; or, if diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Id. In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). 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. Id. When the disease identity is established (arthritis, cardiovascular disease, leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.309(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). At the time of a service entrance examination, every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002). Only such conditions as are recorded in examination reports are considered as 'noted. ' 38 C.F.R. § 3.304(b) (2011). When determining whether a defect, infirmity, or disorder is 'noted' at entrance into service, supporting medical evidence is needed. Crowe v. Brown, 7 Vet. App. 238 (1994). VA's General Counsel has held that to rebut the presumption of sound condition under 38 C.F.R. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was The Board notes that the Veteran originally claimed the disorders on appeal as due to his Osgood-Schlatter's disease. However, in a September 2011 decision, the Board denied the claim of entitlement to service connection for Osgood-Schlatter's disease, and the Veteran has not appealed that decision. As the Veteran's Osgood-Schlatter's disease is not service-connected, any questions of whether the Veteran has arthritis of the knees and leg or varicose veins secondary to that disorder are rendered moot. The Board first observes that, while the Veteran's aforementioned Osgood-Shatter's disease preexisted service, there is no suggestion in the record that the Veteran's arthritis preexisted service. The clinical examination at service entrance was normal. The Board reiterates that this disability is considered separate and apart from the previously adjudicated preexisting Osgood-Schlatter's disease. Accordingly, the evidence must establish that the Veteran has currently diagnosed arthritis that was present in service or within one year of discharge, or is otherwise a result of military service. Service treatment records are silent for arthritis as a diagnosis, as well as for complaints of symptoms that could have represented the presence of arthritis. At the Medical Evaluation Board (MEB), the disabilities noted were bilateral Osgood-Schlatters's disease, fourth degree bilateral hypermobile flat feet, and penile hypospadias. However, the Board notes that the Veteran has a currently diagnosed disability of arthritis of the knees. An October 2003 disability assessment for SSA reports a diagnosis of mild to moderate osteoarthritis of both knees. Degenerative joint disease of both knees was also noted by VA examiners in November 2008, May 2010, and October 2011. Thus, the Veteran meets the criteria of a current diagnosis of bilateral knee arthritis. However, the March 2011 addendum opinion and October 2011 VA examination report state that arthritis of the legs is not possible as arthritis is a disorder of the joints. Where there is no disability, there can be no entitlement to compensation. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, service connection for arthritis of the legs is not warranted, and the Board will only further consider whether such benefits are warranted for arthritis of the knees. As the Veteran's Osgood-Schlatter's disease is not service-connected, the etiologically opinions as to whether the arthritis is secondary to that disability are not pertinent. Opinions as to service connection on a direct basis were obtained in March 2011 and October 2011. The March 2011 addendum to the May 2010 VA examination states that the Veteran's arthritis of the knees was not caused by, related to, or worsened beyond natural progression by military service. The basis for this opinion was that the arthritis was not diagnosed within one year of discharge. However, while this opinion addresses presumptive service connection, the Board observes that it does not fully contemplate service connection on a direct basis or, at least, explain why the lack of diagnosis within one year of service would preclude service connection for arthritis on a direct basis. See 38 C.F.R. § 3.303(d). The October 2011 VA examiner opined that the arthritis was not at least as likely as not directly related to service because it was not diagnosed until 2003 to 2004, greater than 30 years after service and there was no arthritis documented in service. The examiner indicated that age was the factor most strongly associated with disorder, as well as the Veteran's occupation on a merchant ship from 1977 to 2001. The Board acknowledges the Veteran's statements with respect to his symptoms and his contentions as to their etiology. Under certain circumstances, lay statements may serve to support a claim for service connection by suggesting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran is competent to speak to pain he feels in his knees; however, whether that pain is due to arthritis or another disability requires imaging studies be performed. Further, the Veteran has carried a diagnosis of Osgood-Schlatter disease, which while indicated to be non-symptomatic at this time, could have contributed to any knee symptoms he recalls. Thus, the Veteran's statements are not competent evidence as to the cause of symptoms in his knee or the appropriate diagnosis to be assigned to those symptoms. In light of the above, the Board determines that a preponderance of the evidence is against a finding that the Veteran's arthritis of the knees is etiologically a result of his military service. 38 U.S.C.A. § 5107(b) (West 2002); see also, e.g., Gilbert at 53 (1990). Therefore, the claim is denied. ORDER Entitlement to service connection for arthritis of the knees and legs is denied. REMAND At the Veteran's clinical examination at enlistment, the physician documented flat feet. At that time, the flat feet were noted to be second degree; however, at theMEB, the condition was described as fourth degree. Thus, it would appear that the disability underwent an increase in severity during service. Therefore, the disability is presumed aggravated unless it is shown by clear and unmistakable evidence that the increase was a result of natural progression of the disability. In light of these facts, the issue of entitlement to service connection for hypermobile flat feet was remanded in September 2011 for a VA opinion as to the question of in-service aggravation. In September 2011, the Board requested an opinion as to whether it is at least as likely as not that either the Veteran's flat feet began during service, or are otherwise directly related to active duty service. Additionally, the examiner was to review the Veteran's service treatment records and to opine as to whether it is at least as likely as not that the disorder was aggravated beyond the course of its natural progression during service, specifically taking into consideration the aforementioned medical findings at service enlistment and at separation. If the examiner concluded that the Veteran's preexisting flat feet were not aggravated during service beyond natural progression, he was to provide an explanation for such opinion that includes a medical basis/rationale for the finding. While the MEB determined that the pes planus was not aggravated beyond normal progression, no explanation for the documented difference in severity was put forth. In response to the Board's remand, a VA examination was scheduled for October 2011. The VA examiner at that time stated that it is not at least as likely as not that the bilateral pes planus is directly related to service or is otherwise a result of service because it preexisted and is likely congenital. The examiner noted that it was less likely as not aggravated beyond normal progression because the degree of pes planus can change from sitting to standing positions and may appear to be of different severities depending on the position of the feet at the time of examinations. However, while the Board does not doubt that the Veteran's pes planus could have appeared to be of differing degrees simply because if his position when examined, the examiner did not explain how that factor applied to this Veteran. Service treatment records do not demonstrate that there was any difference in the Veteran's position between the MEB and enlistment examination to create such a perceived difference in severity. In light of these facts, the Board finds the October 2011 VA opinion inadequate, and remands the issue of entitlement to service connection for hypermobile flat feet for another opinion. Additionally, the Board determines that another remand is required with regard to the service connection claim for varicose veins. In the September 2011 remand, the Board requested opinions as to whether the Veteran's varicose veins began during, or are otherwise directly related to active duty service. At the October 2011 VA examination, the examiner noted that in October 2002 the Veteran reported that he had varicose veins prior to service. Due to that fact, and the fact that service treatment records are silent for the disorder, the opinion was that varicose veins were not caused by or directly related to service. The examiner further indicated that the veins were likely due to insufficiency of the venous valvular structures with reflux or from primary dilation of the main walls due to structural weakness. Even so, the Board observes that the opinion did not address aggravation of the disorder during service. As a result of the deficiencies in prior VA examinations, an independent medical opinion was obtained by the AOJ in December 2012. This opinion notes the lack of complaints, treatment, or diagnosis of the disorder in service treatment records and also observed that the October 2011 VA examiner noted that the Veteran reported that the varicose veins were present prior to service. Given those facts, the physician stated that there is no clear and unmistakable evidence that the varicose veins existed during active service. However, this opinion seems to have accepted the Veteran's statement that the varicose veins preexisted service on face value, but it did not take into account the Veteran's statements at the November 2008 VA examination that the veins were present during service. If the physician accepts the Veteran's statement that the veins were present prior to service, the physician must consider the Veteran's other statements that the varicose veins were present during service. Accordingly, the Board determines that this opinion is inadequate. Barr, 21 Vet. App. at 311. Therefore, the case is REMANDED for the following action: 1. Schedule the Veteran for another VA examination to assess the nature and etiology of his varicose veins. The claims file must be made available to the examiner, and the examination report must reflect that such review occurred. All pertinent symptomatology and findings must be reported in detail. All tests or studies necessary to make these determinations must be conducted. Upon review of record and examination of the Veteran, the examiner should address the following: a. Is there clear and unmistakable (obvious and manifest) evidence that the varicose veins existed prior to service? If so, did the varicose veins undergo an increase in severity during service? b. If the examiner concludes that the disability did increase in severity during military service, is there clear and unmistakable (obvious and manifest) evidence that the disability was not aggravated beyond the natural progression of the disease? c. If the examiner does not find that the varicose veins clearly and unmistakably preexisted service, is it at least as likely as not (50 percent probability) that the varicose veins are a result of the Veteran's military service, as opposed to some other cause? The VA examiner is advised that aggravation is defined for legal purposes as a permanent worsening of the underlying condition beyond its natural progression versus a temporary flare-up of symptoms. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. A complete rationale for any opinion offered must be provided. 2. The claims folder should be returned to the clinician who performed the October 2011 examination of the Veteran's feet for an addendum to his opinion. The examiner should review the Veteran's service treatment records, specifically his October 1966 service enlistment and September 1967 separation examination reports, as well as the September 1967 service medical board report. The examiner must specifically state that these records have been reviewed. The examiner is asked to specifically comment on the Veteran's bilateral pes planus, diagnosed as second degree and non-disqualifying at enlistment, and fourth degree and disqualifying at separation. The examiner is asked to state whether there is clear and unmistakable evidence (obvious and manifest) that the disorder was not aggravated beyond the course of its natural progression during service, specifically taking into consideration the aforementioned medical findings at service enlistment and at separation. If the examiner concludes that the Veteran's preexisting flat feet were not aggravated during service beyond natural progression, he must specifically provide an explanation for such opinion that includes a medical basis/rationale for the finding. To the extent the examiner finds that the position during examination was responsible for the perceived change in severity of the Veteran's flat feet, the examiner must explain how that finding applies to this Veteran and the facts of this case. If the October 2011 VA examiner is unavailable, the claims file should be forwarded to an equally qualified examiner who should be requested to address the questions above. 3. The Veteran must be advised of the importance of reporting to any scheduled VA examinations and of the possible adverse consequences, to include the denial of his claims, of failing, without good cause, to so report. See 38 C.F.R. § 3.655 (2012). A copy of the notification letter sent to the Veteran advising him of the time, date, and location of any scheduled examinations must be included in the claims folder, and must reflect that it was sent to his last known address of record. If he fails to report, the claims folder must indicate whether the notification letter was returned as undeliverable. 4. Thereafter, the RO should review the claims folder to ensure that the foregoing requested development has been completed. In particular, review the examination report to ensure that it is responsive to, and in compliance with, the directives of this remand, and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). If any benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the opportunity to respond thereto. The matter should then be returned to the Board, if in order, for further appellate process. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs