Citation Nr: 1310052 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 08-15 546 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for an anterior left lower leg disability, also characterized as a left ankle disability, to include as secondary to service-connected residuals of a left lower anterior tibia laceration. 2. Entitlement to service connection for a left knee disability, also characterized as a left shin disability, to include as secondary to service-connected residuals of a left lower anterior tibia laceration. REPRESENTATION Appellant represented by: Kenneth LaVan, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The appellant served on active duty from March 29, 1989 to July 14, 1989. This appeal to the Board of Veterans' Appeals (Board) arose from a November 2006 rating decision in which the RO in Jackson, Mississippi denied service connection for a left ankle condition and a left shin condition. In November 2006, the appellant filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in March 2008, and the appellant filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals ) in May 2008. During the pendency of the appeal, the jurisdiction of the appellant's claims file and appeal was transferred to the RO in Atlanta, Georgia, which has certified the appeal to the Board. In May 2011, the appellant did not appear for a scheduled Board hearing at the RO (Travel Board hearing). In December 2011, the matters on appeal were remanded to the RO, via the Appeals Management Center (AMC) for further development, to include obtaining pertinent treatment records and a VA examination. In a May 2012 rating decision, the RO granted a separate 10 percent rating for a painful scar due to residuals of a laceration to the left lower anterior tibia. In August 2012, these matters were again remanded to the RO, via the AMC, to afford the appellant a Travel Board hearing. In December 2012 and February 2013, the Board received additional medical evidence from the appellant and his attorney, accompanied by a signed waiver of initial RO consideration. In January 2013, the appellant testified during a Board video-conference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. During the Board hearing, the appellant requested, and the undersigned granted, a 60-day abeyance period for submission of additional evidence in support of the claims. During the hearing, it appeared as if the appellant was requesting to withdraw his anterior left lower leg disability; however, his attorney informed the undersigned that she would clarify the issue with the appellant after the hearing. The undersigned informed the appellant and his attorney that he could submit his withdrawal in writing during the 60-day abeyance period if he decided to withdraw the claim. See pages 10-11 of the hearing transcript. The appellant has not stated that he wished to withdraw his anterior left lower leg disability claim. Consequently, that issue remains before the Board for appellate consideration. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The Board's decision addressing the claim for service connection for an anterior left lower leg disability, also characterized as a left ankle disability, to include as secondary to service-connected residuals of a left lower anterior tibia laceration is set forth below. The claim for service connection for a left knee disability, also characterized as a left shin disability, to include as secondary to service-connected residuals of a left lower anterior tibia laceration is addressed in the remand following the order; this matter is being remanded to the RO. As a final preliminary matter, the Board notes that, during the January 2013 hearing, the appellant raised a claim for a rating in excess of 10 percent for his service-connected scar. As this claim has not been addressed by the RO, it is not properly before the Board, and is thus referred to the RO for appropriate action. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished. 2. While the appellant has complained of left ankle pain, competent medical evidence shows that the only disabilities affecting his lower left extremity are the left knee degenerative joint disease, and his service connected scar. 3. There is no competent, probative evidence indicating that the Veteran has, or ever has had, a left ankle disability. CONCLUSION OF LAW The criteria for service connection for an anterior left lower leg disability, also characterized as a left ankle disability, to include as secondary to service-connected residuals of a left lower anterior tibia laceration are not met. 38 U.S.C.A. §§ 1101, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim, as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) ). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice 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; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim, in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353 -23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, a July 2006 pre-rating letter provided noticed to the appellant explaining what information and evidence was needed to substantiate the claim for service connection, as well as what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. The January 2007 letter provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. The November 2006 RO rating decision reflects the initial adjudication of the claim after issuance of the July 2006 letter. Hence, the letter meets Pelegrini's and Dingess/Hartman's content of notice requirements, as well as the VCAA's timing of notice requirement. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Pertinent medical evidence associated with the claims file consists of service, VA, and private treatment records, and the report of January 2012 VA examination. Also of record and considered in connection with the appeal is the transcript of the appellant's January 2013 Board hearing, along with various written statements provided by the appellant, and by his attorney, on his behalf. The Board also finds that no additional RO action to further develop the record in connection with this claim, prior to appellate consideration, is required. As noted, this matter was remanded in December 2011 so the appellant could be afforded a VA examination, which he underwent in January 2012. In the December 2011 remand, the Board requested that the VA examiner identify whether or not the appellant had developed a disorder to his anterior left lower leg, and if so, provide a diagnosis and nexus opinion as to the etiology. The January 2012 examination report demonstrates that the VA examiner provided comment regarding the anterior left lower leg. Thus, the Board is satisfied that there was substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO/AMC, the appellant has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with this claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the appellant or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Generally, this requires (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303(d). Service connection may also be established either by showing that a chronic disability or disease was incurred during service and later manifestations of such chronic disability or disease are not due to intercurrent cause(s) or that a disorder or disease was incurred during service and there is evidence of continuity of symptomatology which supports a finding of chronicity since service. 38 C.F.R. § 3.303(b). Under 38 C.F.R. § 3.310(a), service connection may also be granted for disability that is proximately due to or the result of a service-connected disease or injury. That regulation permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Statements submitted throughout this appeal reflect that it is the appellant's contention that he is entitled to service-connected compensation benefits for an anterior lower left leg disability as the result of an in-service injury during basic training. Alternatively, he asserts that service connection is warranted for such disability as secondary to his service-connected residuals of a left lower anterior tibia laceration. The appellant has stated that he occasionally experiences left ankle pain. Pertinent to claim for service connection, such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Here, service treatment records, including a July 1993 physical examination report, are silent for any specific complaints, diagnosis, or treatment relating to the appellant's left ankle. In regards to the appellant's lower left leg, there is evidence pertinent to the left leg during service, but no evidence of a diagnosed chronic ankle disability. Specifically, service treatment records dated in May 1989 show the appellant suffered a left leg laceration of the anterior lower leg. Post-service medical evidence is similarly silent as to any complaints, diagnosis, or treatment relating to the appellant's left ankle. Additionally, there is no indication of further treatment for leg problems other than the appellant's left knee. A March 2012 private medical opinion report documents the appellant's report of occasional shoot pain in his left ankle. In January 2012, the appellant underwent a VA joints examination at which time he offered no left ankle complaints; and no chronic ankle disability was identified by the examiner. The only disorders noted to the appellant's left lower extremity were degenerative joint disease in his left knee, and a healed laceration to his lower leg. During the January 2013 Board hearing, the appellant offered no testimony with regard to his left ankle, and, in fact, indicated that he wished to only pursue his left knee claim. The foregoing evidence indicates that the appellant does not have, and has not at any point pertinent to this appeal had, a diagnosed left ankle disability. Rather, the evidence indicates no more than occasional complaints of left ankle pain. The Board emphasizes, however, that pain alone, without a diagnosed or identifiable underlying malady or condition, does not constitute a disability for which service connection can be granted. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), vacated in part and remanded on other grounds sub. nom. Sanchez-Benitez v. Principi, 239 F. 3d 1356 (Fed. Cir. 2001); see Evans v. West, 12 Vet. App. 22 (1998). Thus, despite the appellant's complaints of pain, there is no medical evidence indicating that there is any underlying left ankle pathology related to these complaints. Furthermore, with respects to his left lower anterior leg, the only disorder noted, is the service-connected lower anterior scar. As for the lay assertions of record, the Board notes that the appellant is certainly competent to report his own symptoms, or matters within his personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). In addition, laypersons may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that 'a valid medical opinion' was required to establish nexus, and that a layperson was 'not competent' to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). However, matters of medical diagnosis for disability not capable of lay observation (and, if competently shown, a medical relationship between such disability and service) are matters within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the appellant is not shown to be other than a layperson without appropriate medical training and expertise to competently render a diagnosis of a left ankle disability, or to opine as to the etiology of any such disability, the lay assertions in this regard have no probative value. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ('a layperson is generally not capable of opining on matters requiring medical knowledge'). The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C.A. §1131; see also 38 C.F.R. § 3.310. Thus, where, as here, medical evidence indicates that the appellant does not have the disability for which service connection is sought, there can be no valid claim for service connection-on any basis. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer, 3 Vet. App. at 225. For all the foregoing reasons, the Board finds that the claim for service connection for an anterior left lower leg disability, also characterized as a left ankle disability, to include as secondary to service-connected residuals of a left lower anterior tibia laceration, must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against this claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for an anterior left lower leg disability, also characterized as a left ankle disability, to include as secondary to service-connected residuals of a left lower anterior tibia laceration is denied. REMAND The Board's review of the claims file reveals that further RO action on the claim remaining on appeal is warranted. Service connection has been established for residuals of a left lower anterior tibia laceration. The appellant seeks compensation for a left knee disability as directly related to his active duty service or, alternatively, as secondary to service-connected residuals of a left lower anterior tibia laceration. Under 38 C.F.R. § 3.310(a) (2012), service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. That regulation permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Effective October 10, 2006, VA amended 38 C.F.R. § 3.310 with regard to the requirements for establishing secondary service connection on an aggravation basis. See 71 Fed. Reg. 52,744 - 47 (Sept. 7, 2006). 38 C.F.R. § 3.310 (2012). Initially, as part of its duty to notify him, the Board notes that the RO should have provided the appellant with notice compliant with the VCAA, including information regarding the evidence required to establish service connection on a secondary basis under 38 C.F.R. § 3.310. As action by the RO is needed to satisfy the notice provisions of the VCAA (see Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), such action must be accomplished on remand. The appellant was afforded a VA examination in January 2012. In the examination report, the VA examiner essentially indicated that service treatment records did not support a claim of a chronic left knee condition which occurred during active duty, and that there was no evidence to support a claim that left knee arthritis was due to residuals of a left lower anterior tibia laceration. The Board finds that the medical opinion obtained is inadequate. While the examiner addressed the absence of evidence of chronic left knee disability during service or within the first post-service year; and while the examiner appears to have only addressed whether or not the appellant's service- connected residuals of a left lower anterior tibia laceration caused his left knee disability, he did not explicitly address whether the service-connected residuals of a left lower anterior tibia laceration aggravates the left knee-which, as noted above, is a potential basis for secondary service connection pursuant to 38 C.F.R. § 3.310. The Board points out that, once VA undertakes the effort to provide an examination, it must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, on remand, the RO should forward the claims file to the physician who performed the January 2012 VA examination (Dr. J.R.D.), for an addendum opinion regarding whether the appellant's left knee disability is aggravated by his service-connected residuals of left lower anterior tibia laceration. To provide a clearly-stated rationale for the conclusion reached, the examiner should review the entire claims file. The RO should only arrange for further examination of the appellant if Dr. J.R.D. is unavailable, or if further examination of the appellant is deemed necessary. Prior to obtaining further medical opinion, to ensure that all due process requirements are met, and that the record before the examiner is complete, the RO should also give the appellant another opportunity to provide information and/or evidence pertinent to the claim on appeal. In its letter, the RO should provide notice of what evidence is needed to support a claim for secondary connection, pursuant to 38 C.F.R. § 3.310. The RO's letter to the appellant should also explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should attempt to obtain any additional evidence for which the appellant provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties imposed by the VCAA. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim remaining on appeal. As indicated, the RO's adjudication of this claim must include consideration of all pertinent evidence added to the claims file since the RO's last adjudication of the claim. Accordingly, this matter is hereby REMANDED for the following: 1. Send to the appellant and his attorney a letter requesting that he provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim remaining on appeal that is not currently of record. Explain how to establish entitlement to service connection for degenerative joint disease of the left knee on a secondary basis, pursuant to 38 C.F.R. § 3.310. Clearly explain to the appellant that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. If the appellant responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the appellant and his attorney of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or responses received from each contacted entity have been associated with the claims file, or a reasonable time for the appellant's response has expired, arrange for the examiner who conducted the January 2012 VA examination to review the entire claims file, including a complete copy of this REMAND, to provide an addendum opinion. The physician should provide an opinion, based on review of the claims file and consistent with sound medical principles, as to whether it at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability is aggravated (worsened beyond the natural progression) by the appellant's service-connected residuals of the left lower anterior tibia laceration. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. If the prior examiner is not available, or further examination of the appellant is deemed warranted, arrange for the appellant to undergo VA orthopedic examination, by an appropriate physician, at a VA medical facility, to obtain a medical opinion addressing the medical relationship, if any, between current left knee disability and service connected residuals of the left lower anterior tibia laceration (addressing causation and aggravation). The entire claims file, to include a complete copy of the REMAND, must be made available to the physician designated to examine the Veteran, and the report of examination should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies should be accomplished (with all results made available to the examining physician prior to the completion of his or her report), and all clinical findings should be reported in detail. In rendering the requested opinion, the physician should specifically consider and discuss the in-and post-service treatment records, as well as the appellant's contentions, and lay statements submitted in support of the claim. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report. 5. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should adjudicate the claim for service connection for left knee disability, to include as secondary to service-connected residuals of a left lower anterior tibia laceration, in light of all pertinent evidence and legal authority. 8. If the benefit sought on appeal remains denied, the RO must furnish to the appellant and his attorney an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process, and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The appellant need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs