Citation Nr: 1310676 Decision Date: 04/01/13 Archive Date: 04/11/13 DOCKET NO. 05-14 165 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a disability manifested by bilateral leg pain. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARINGS ON APPEAL Appellant (the Veteran) her mother and father ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from November 1999 to June 2000. This case comes to the Board of Veterans' Appeals (Board) on appeal of a February 2005 rating decision of the Detroit, Michigan, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied service connection for a disability manifested by bilateral leg pain and depression. In February 2009, a video-conference Board hearing was held before the undersigned in Detroit, Michigan. A transcript of the hearing is associated with the Veteran's claims file. The case was remanded by the Board in March 2009 and September 2010 so that compensation examinations could be arranged. These were accomplished and, in a July 2011 rating decision, the RO awarded service connection for a pain disorder associated with psychological factors (depression/anxiety). The case was returned to the Board for appellate consideration of the remaining issue of entitlement to service connection for a disability manifested by bilateral leg pain. FINDINGS OF FACT 1. During service, the Veteran was treated for bilateral leg pain that was assessed as a possible left gastrocnemius muscle strain or shin splints. 2. A chronic disability manifested by bilateral leg pain has not been demonstrated at any time during the appeal. 3. Service connection has been established for a pain disorder associated with psychological factors. CONCLUSION OF LAW A chronic disability manifested by bilateral leg pain was neither incurred in nor aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 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 or her representative of any information, and any medical or lay 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between a veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of the claim prior to the initial adjudication of the claim. An August 2004 letter explained the evidence necessary to substantiate the claim[s], the evidence VA was responsible for providing, and the evidence the Veteran was responsible for providing. A March 2006 letter informed the Veteran of disability rating and effective date criteria. The Veteran has had ample opportunity to respond and supplement the record. With regard to the duty to assist, the Veteran's service treatment records (STRs) and pertinent post-service treatment records have been secured. The Veteran has also been afforded VA medical examinations in connection with the claim, most recently in October 2010. 38 C.F.R. § 3.159(c) (4) (2012). The Board finds that the opinion obtained is adequate. The opinion was provided by a qualified medical professional and was predicated on a full reading of all available records. The examiner also provided a detailed rationale for the opinion rendered. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran's representative has pointed out that the Veteran does not recall having been examined by VA in October 2010, but has not actually challenged the adequacy of the examination obtained. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4) (2012). Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease shown 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. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection, there must be medical evidence of 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 disease or injury. See Hickson v. West, 12 Vet. App. 247 (1990). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1990); 38 C.F.R. § 3.303(a). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence where appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. When there is an approximate balance of positive and negative 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) (West 2002); 38 C.F.R. § 3.102 (2011). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board is required to render a finding with respect to the competency and credibility of the lay evidence of record. See Coburn v. Nicholson, 19 Vet. App. 427, 433 (2006). Competent, credible lay evidence could be, in and of itself, sufficient to establish an elemental fact necessary to support a finding of service connection. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). As a fact finder, the Board is obligated to determine whether lay evidence is credible in and of itself. The Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence, but it may consider a lack of contemporaneous medical evidence as one factor in determining the credibility of lay evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (Fed. Cir. 2006). Credibility is a factual determination going to the probative value of the evidence, to be made after the evidence has been admitted or deemed competent. Cartwright v. Derwinski, 2 Vet. App. 24 (1991). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). A veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived, that is, experienced, were directly through the senses. 38 C.F.R. § 3.159 (competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.); Layno, 6 Vet. App. at 469-71 (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness, but lay testimony is not competent to prove a particular injury or illness); see Barr 21 Vet. App. at 303 (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d at 1377. Also, a veteran as a layperson is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau). VA must consider the competency of the lay evidence and cannot outright reject such evidence on the basis that such evidence can never establish a medical diagnosis or nexus; however, this does not mean that lay evidence is necessarily always sufficient to identify a medical diagnosis, but rather only that it is sufficient in those cases where the layman is competent and does not otherwise require specialized medical training and expertise to do so, i.e., the Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence. See Davidson, 581 F.3d at 1316 (recognizing that, under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition; the person is reporting a contemporaneous medical diagnosis; or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). Service Connection for a Disability Manifested by Bilateral Leg Pain The Veteran contends that service connection should be established for a disability manifested by leg pain. It is pointed out that the Veteran was treated for leg pain during service and that she continues to manifest symptoms of leg pain, although physical examination has not been able to determine the etiology. During testimony at the Board hearing in February 2009, she related that prior to entering active duty, she had been very active in sports, but that during service she had developed bilateral shin splints for which she was treated with Naprosyn, ice and rest. She continued to experience leg pain that was now thought to be possibly due to peripheral neuropathy, but that the etiology of the leg pain was not clear. After review of the record, it is found that the Veteran did have complaints of bilateral leg pain while on active duty. In this regard, it is noted that the STRs show that in November 1999, the Veteran was treated for complaints of muscle spasm in the left leg. She was evaluated in the emergency room in January 2000 at which time it was reported that she was taking the medication Naproxyn for leg pain. She was assessed as having a possible left gastrocnemius muscle strain in January 2000, with later evaluation showing an assessment of probable shin splints. In February 2000 she was placed on a physical profile due to shin splints. A three phase bone scan of the lower extremities, performed in June 2000, was interpreted as being normal. In an August 2004 letter, the Veteran's private physician indicated that the Veteran had been seen for a rheumatologic evaluation in January 2004 at which time she presented with severe, crampy bilateral shin pain of four years duration. The pain emanated from the ankles and radiated upwards and was worse on weightbearing. It was reported that she had been diagnosed with Achilles tendonitis, but the workup had not been conclusive. Neurologic workup was negative. Clinically, as well as by laboratory tests, there was no evidence of a systemic connective tissue disease such as lupus, myositis, or rheumatoid arthritis. No other inflammatory joint disease was evident. The physician stated that, when last seen, it was recommended that the Veteran attempt Physiatry management. VA outpatient treatment records dated in December 2004 report the findings of the Veteran's private physician and show that the Veteran was evaluated for shin pain of unknown etiology. It was also noted that an MRI study of the lumbar spine had been normal and that electromyographic (EMG) studies by a private neurologist had shown no EMG evidence of polyneuropathy or lumbar spinal stenosis. It was believed that, during boot camp, she had been marching in the wrong size boots and had developed shin splints. After physical examination, the diagnosis was normal examination of the lower extremities, shin pain of unknown etiology. On April 2008 VA psychiatric examination, it was noted that the Veteran was getting some treatment for her leg pain. She reported that she was taking medications, including Naproxen and Neurotin. The diagnosis was dysthymic disorder. In a July 2008 addendum the examiner noted that the diagnosis of a dysthymic disorder was because of chronic leg pain and that the symptoms of depression had started after she developed the leg pain. The symptoms of dysthymia were at least as likely as not related to her chronic pain. The Veteran was examined by VA, pursuant to remand by the Board, in September 2009. At that time, the Veteran continued to complain of bilateral leg pain. Physical examination was normal. Laboratory testing included EMG and nerve conduction velocity (NCV) studies that found no abnormality. The diagnosis was subjective complaints of bilateral leg pain. The examiner commented that the Veteran's bilateral leg pain was not caused by or a result of military service because the subjective complaints of leg pain were not substantiated by clinical examination or EMG. An examination was conducted by VA in October 2010, pursuant to a second remand by the Board. At that time, the Veteran reported that her difficulties with bilateral leg pain were the result of Achilles tendonitis. Physical examination showed no objective physical findings. X-rays studies of each ankle were normal. The diagnosis was normal clinical examination of both ankles and both lower extremities. Regarding the possibility of bilateral Achilles tendonitis, the examiner indicated that there was no basis for a diagnosis of this disorder. After review of the record, the examiner stated that the Veteran did not manifest chronic bilateral leg discomfort or Achilles tendonitis during the military and that she was not medically discharged from the military for bilateral leg symptoms or for symptoms of Achilles tendonitis. As there was no current objectively identifiable pathology or disability of either lower extremity or either Achilles tendon, no causal relationship to military service could be made. On December 2010 VA psychiatric examination, the Veteran was diagnosed as having pain disorder associated with psychological factors (anxiety/depression). As noted, service connection was awarded for this disorder, rated 30 percent disabling. Although the Veteran manifested bilateral leg pain while on active duty, the etiology of the pain was never actually confirmed. It was speculated that the cause was a strain of the calf muscle or to shin splints and later evaluations have speculated that the pain could be the result of peripheral neuropathy or Achilles tendonitis. None of these possibilities have been clinically confirmed in the record. Pursuant to two remands by the Board, VA has attempted to ascertain the basis for her bilateral leg pain, but physical examinations in 2009 and 2010 have failed to disclose any physical disability. Pain alone without a diagnosed or underlying malady or condition is not a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), aff'd in part, vacated and remanded in part on other grounds, 259 F.3d 1356 (Fed. Cir. 2001). In the absence of proof of a current disability there is no valid claim of service-connection. See Brammer v. Derwinski, 3 vet. App. 223, 225 (1992). Finally, on psychiatric examination in December 2010, the Veteran was diagnosed with pain disorder associated with psychological factors (anxiety/depression). This was considered the etiology of her leg pain and service connection was awarded on the basis of medical evidence of record. It is important to note that at no time during the pendency of the Veteran's appeal has a physical disability manifested by bilateral leg pain been clinically confirmed. As service connection has been established for a pain disorder associated with psychological factors, an award of compensation based on the establishment of service connection for a disability manifested by bilateral leg pain would be pyramiding and not subject to an additional award. 38 C.F.R. § 4.14 (2012). Accordingly, service connection for a disability manifested by bilateral leg pain is not warranted. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for a disability manifested by bilateral leg pain, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. (CONTINUED ON NEXT PAGE) ORDER Service connection for a disability manifested by bilateral leg pain is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs