Citation Nr: 1311780 Decision Date: 04/09/13 Archive Date: 04/19/13 DOCKET NO. 09-09 618 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a left leg disorder, to include as secondary to service-connected degenerative joint disease of the lumbar spine. 2. Entitlement to service connection for a right leg disorder (other than radiculopathy), to include as secondary to service-connected degenerative joint disease of the lumbar spine. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). The Veteran performed active military service from November 1951 to August 1953. He earned the Purple Heart, Combat Infantryman Badge, and the Korean Service Medal with three Bronze Service Stars. This matter arises to the Board of Veterans' Appeals (Board) from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that in pertinent part denied service connection for claimed left and right leg disorders. The Board remanded the case for additional development in November 2010 and March 2012. In August 2010, the Veteran testified before a Veterans Law Judge who is no longer employed at the Board. In January 2013, the Board offered the Veteran a hearing before another Veteran's law judge. The Veteran declined the offer. Service connection for a left leg disorder, to include as secondary to service-connected degenerative joint disease of the lumbar spine, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDING OF FACT Competent medical evidence attributes all reported right lower extremity symptoms to already-rated, service-connected disabilities. CONCLUSION OF LAW Claimed right leg disorders were not incurred in or aggravated by active military service, nor are the requirements for secondary service connection met. 38 U.S.C.A. §§ 1110, 1131, 1137, 5103A, 5107 (West 2002); § 5103 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has remanded the case for development. When the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). With respect to the issue adjudicated below, all remand orders have been complied with. Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must: 1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; 2) inform the claimant about the information and evidence that VA will seek to provide; and, 3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). VA's notice requirements apply to all five elements of a service connection claim. Those five elements include: 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). Upon receipt of an application for service-connection, VA must review the information and the evidence presented and provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim, as reasonably contemplated by the application. Additionally, notice that a disability rating and an effective date for the award of benefits will be assigned, if service connection is awarded, must be included. VA's duty to notify has been met. This duty was satisfied by letters sent to the Veteran in September 2007 and January 2008, prior to issuance the appealed April 2008 RO decision. These letters address both of the service connection claims that are on appeal. VA's duty to assist has also been met. All available Surgeon General's Office (hereinafter: SGO) records were located. All pertinent VA records have been associated with the file. VA examinations were performed in January 2011 and November 2012. The more recent VA opinion obtained is adequate, as it is based the pertinent medical evidence and the Veteran's testimony and is supported by a cogent rationale. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110. 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). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be: (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and, (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004). 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. at 309. Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculosis disease and Hansen's disease; seven years for multiple sclerosis) from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1339 (Fed. Cir. 2013) ("The clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases."). Where a chronic disease under § 3.309(a) is "shown as such in service" ("meaning clearly diagnosed beyond legitimate question" (Id), or in the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). In cases where a chronic disease is "shown as such in service", the Veteran is "relieved of the requirement to show a causal relationship between the condition in service and the condition for which service-connected disability compensation is sought." Walker, 708 F.3d at 1336. Instead, service connection may be granted for subsequent manifestations of the same chronic disease without any evidence of link or connection between the chronic disease shown in service and manifestations of the same disease at a later time. In other words, "there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease." Id. If evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not "shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned," i.e., "when the fact of chronicity in service is not adequately supported," then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Id. Each disabling condition shown by service medical records, or for which the Veteran seeks service connection, must be considered on the basis of the places, types, and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence. 38 C.F.R. § 3.303(a). "Direct" service connection may be granted for any disease not diagnosed initially until after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Once the evidence has been assembled, the Board assesses the credibility and weight to be given to the evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) and cases cited therein. When there is an approximate balance of 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 (West 2002); 38 C.F.R. § 3.102 (2012). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that a Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. According to 38 U.S.C.A. § 1154(a), the Secretary must consider the places, types, and circumstances of the Veteran's service, his unit's history, his service medical records, and all pertinent lay and medical evidence in the case. More favorable consideration is afforded combat Veterans under 38 U.S.C.A. § 1154(b). Because the Veteran is a combat veteran, he will be afforded this consideration. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a), (b) (2012). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. The Veteran's service treatment reports are unavailable, as they were destroyed in a fire at the National Personnel Records Center in 1973. SGO records reflect hospitalization that coincides with the Veteran's claim of injury sustained in combat. Although the Veteran had earlier claimed service connection for other combat injuries, in July 2007 he claimed service connection for his legs, specifically claiming pain in both legs and hips. A private medical report reflects that in August 2008, the Veteran requested treatment for right lower extremity pain and bilateral hip pain. There was no mention of left lower extremity pain. In October 2008, the Veteran requested service connection for "legs and hips secondary to traumatic injury" and "arthritis secondary to traumatic injury." In August 2010, Veteran testified to the effect that both legs were injured during combat. No specific injury was alleged, however. He testified that sometimes he has no feeling in his feet. According to a January 2011 VA compensation examination report, the Veteran reported low back pain that radiated to the right lower extremity with episodal numbness of the right lower extremity. He recalled a combat injury in 1952 with almost immediate left lower extremity numbness. He reported bilateral hip pains with radiation to both thighs. The examining physician noted that both hips exhibited limited range of motion and noted that pain radiated down both legs during hip range of motion testing. The Veteran could not cross the left leg over the right leg, signaling limitation of motion of the left hip joint. Pursuant to a March 2012 Board remand instruction, VA re-examined the Veteran to clarify the diagnosis and etiology of any right lower extremity symptom that could be separated from right lower extremity radiculopathy. According to November 2012 VA compensation examination reports (disability benefits questionnaires), the physician explained that the service-connected low back and bilateral hip disabilities accounted for all symptoms shown. The above-mentioned medical opinion is persuasive, as it is based on accurate facts and supported by a rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is accorded no weight); also see Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (medical opinion based upon an inaccurate factual premise has no probative value). The lay testimony is competent with respect to observance of symptoms readily observable and it is credible, as there is no indication of lack of veracity. Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005). However, the determination of an issue involving a question of medical expertise requires further analysis of the Veteran's competency. 38 C.F.R. § 3.159; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay diagnosis is competent if: (1) lay person is competent to identify the medical condition; (2) lay person is reporting a contemporaneous medical diagnosis; or (3) lay testimony of symptoms at the time supports a later diagnosis by a medical professional). In this case, the Veteran's reports of right lower extremity symptoms tend to support the Board's conclusion that all right lower extremity symptoms are contemplated in the diagnostic codes already assigned. Therefore, his testimony and claims, while competent and credible, do not support his claim of additional disability of the right lower extremity. Concerning the right lower extremity, all reported symptoms and diagnoses are service-connected and already rated. Right upper leg limitation of motion is rated under Diagnostic Code 5252, limitation of flexion of the thigh. Right leg neurological symptoms, such as pain and numbness, are rated under Diagnostic Code 8524, Paralysis of the internal popliteal nerve (tibial). After considering all the evidence of record, including the testimony, the Board finds that the preponderance of it is against the claim. 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 (West 2002); Gilbert, supra. The claim for service connection for a right leg disorder (other than radiculopathy), to include as secondary to service-connected degenerative joint disease of the lumbar spine, is therefore denied. ORDER Service connection for a right leg disorder (other than radiculopathy), to include as secondary to service-connected degenerative joint disease of the lumbar spine, is denied. REMAND According to 38 C.F.R. § 4.2, if a diagnosis is not supported by the findings on the examination report, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. Although the Board may not second-guess a medical expert based upon its own opinion, it cannot accept the opinion of a physician whose opinion is not clear enough for a lay adjudicator to understand. Nieves-Rodriguez v. Peake, 22 Vet. App. at 301. A November 2012 VA medical opinion states that all reported left lower extremity symptoms and diagnoses are attributable to service-connected disabilities. Regardless of this unambiguous, uncontroverted medical opinion, some of the left lower extremity symptoms have been omitted from service connection. The November 2012 VA compensation examination report clearly reflects hypoactive deep tendon reflexes at the left knee and at the left ankle. These are not service-connected, nor are they contemplated in the ratings assigned for the service-connected left hip, lumbar spine, or right lower extremity. Left hip degenerative joint disease is service-connected and is rated under Diagnostic Code 5253, Thigh, impairment of. The 10 percent rating assigned under Diagnostic Code 5253 contemplates limited rotation or limited adduction (cannot cross legs). Diagnostic Code 5253 makes no mention of any left knee or left ankle symptomatology and separate service connection for left lower extremity neuropathy has not been granted. Moreover, although the November 2012 examiner tested for, and found, hypoactive deep tendon reflexes at the left knee and ankle, the examiner concludes, "There is no objective evidence to support a claim of any other leg condition at this time." Thus, if these neurological findings do not represent another leg condition, the examiner should explain why not. The November 2012 VA examiner made another puzzling finding that needs clarification. The November 2012 VA examiner stated, "It is this examiner's opinion that the veteran's service-connected right leg radiculopathy/right and left hip degenerative joint disease and chronic lumbar degenerative joint disease account for it in an and a the veteran's leg symptomatology." This statement, as written, is simply unintelligible and must be explained. Accordingly, this case is remanded to the AMC for the following action: 1. The AMC should return the claims file to the November 2012 examining physician for an addendum. The physician is asked to do the following: I. Note a review of the claims files and any additional pertinent medical history contained in Virtual VA. II. Address whether the hypoactive left knee or hypoactive left ankle deep tendon reflexes represents objective medical evidence of a left lower extremity neurological deficit. If these do not represent impairment, the examiner should explain why not. If these do represent a neurological impairment, the examiner should address their etiology. III. The examiner should clarify the following statement, found on page 37 of the November 2012 VA disability benefits questionnaire, "It is this examiner's opinion that the veteran's service-connected right leg radiculopathy/right and left hip degenerative joint disease and chronic lumbar degenerative joint disease account for it in an and a the veteran's leg symptomatology." The Veteran may be examined for this purpose, if necessary. If the requested VA physician is not available, a qualified substitute may be used. The physician should provide a rationale for any conclusion in a legible report. 2. Following the above, the AMC should review all the relevant evidence and re-adjudicate the claim. If the desired benefits are not granted, an appropriate supplemental statement of the case (SSOC) should be issued. The Veteran and his representative should be afforded an opportunity to respond to the SSOC before the claims folder is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). Failure to report for examination without good cause (if an examination is scheduled) may result in the denial of the claim. 38 C.F.R. § 3.655(b) (2010). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs