Citation Nr: 1312860 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 09-06 293 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a left leg and ankle impairment. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran served on active duty from February 1968 to April 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran testified at a July 2012 hearing by the undersigned Veterans Law Judge held sitting at the RO. A transcript of that hearing is associated with the claims file. The Veteran's appeal was remanded by the Board in January 2013 in order to obtain any VA outpatient treatment records from the Carl Vinson VA Medical Center in Dublin, Georgia, dated from September 2008 to the present, and to provide the Veteran an examination to determine the likely nature and etiology of his currently-diagnosed disorders of the left lower extremity. Additional VA records were obtained in January 2013, and the Veteran was provided an adequate VA examination in February 2013. Accordingly, the Board finds that there has been substantial compliance with the directives of the January 2013 Remand, such that an additional remand to comply with such directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). FINDINGS OF FACT 1. The Veteran's service preinduction examination does not show evidence of left leg and/or ankle impairment. 2. The Veteran's poliomyelitis clearly and unmistakably preexisted service. 3. The Veteran's poliomyelitis clearly and unmistakably was not aggravated by service. 4. The evidence of record does not relate the Veteran's currently diagnosed residuals status post poliomyelitis of the left lower extremity to his military service. CONCLUSION OF LAW A left leg and ankle impairment was not incurred in, or aggravated by, active military service. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). A September 2005 letter satisfied the duty to notify provisions. Although the Veteran was not notified of the regulations pertinent to the establishment of an effective date and of the disability rating, the Board finds that he is not prejudiced by this, as his claim for entitlement to service connection is being denied and an effective date and disability rating will not be established. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records and VA medical treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). VA examinations were conducted in May 1968 and February 2013; the Veteran has not contended that either the examinations or the opinions were inadequate for rating purposes. See 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The February 2013 VA examination conducted a complete physical examination of the Veteran and included a nexus opinion with supporting rationale; as such, the record does not reflect that this examination was inadequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). As indicated above, the Veteran testified at a July 2012 hearing by the undersigned held sitting at the RO. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c) (2) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. During the Board personal hearing, the Veteran was assisted at the hearing by an accredited representative from the Georgia Department of Veterans Services. The representative and the VLJ asked questions to ascertain the onset of the Veteran's disability, the treatment he had received since service, and whether the Veteran's current disability was related to his period of service. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for service connection. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c) (2). There is no indication in the record that any additional evidence relevant to the issue decided herein is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). The Veteran seeks entitlement to service connection for a left leg and ankle impairment. 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); 38 C.F.R. § 3.304(b) (2012). To rebut the presumption of sound condition under 38 U.S.C.A. § 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 not aggravated by service. 38 C.F.R. § 3.304(b); VAOPGCPREC 3-03, 69 Fed. Reg. 25,178 (2004); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. See Cotant v. Principi, 17 Vet. App. 116 (2003). When no preexisting condition is noted upon entry into service, a veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the claimant's disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any increase in disability [was] due to the natural progress of the preexisting condition. 38 U.S.C. § 1153. If this burden is met, then the claimant is not entitled to service- connected benefits. However, if the government fails to rebut the presumption of soundness under section 1111, the claim is one for service connection. This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded. Wagner, 370 F.3d at 1096. Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999). It is an onerous evidentiary standard, requiring that the no-aggravation result be undebatable. Cotant, 17 Vet. App. at 131. Here, because the August 1967 service preinduction examination showed normal clinical findings of the bilateral lower extremities and noted pes planus as the only abnormality of the bilateral feet, the presumption of soundness attaches. 38 U.S.C.A. § 1111, 38 C.F.R. § 3.304(b) (1). After thorough review, the Board finds that the evidence is clear and unmistakable in establishing that the Veteran's residuals status post poliomyelitis of the left lower extremity preexisted service. Although the August 1967 service preinduction examination did not find evidence of a left lower extremity disorder other than pes planus, the Veteran indicated that he suffered from "foot trouble" on his corresponding Report of Medical History. The Veteran then began to complain of left leg pain during basic training at Fort Benning, Georgia, in March 1968. At his July 2012 Travel Board hearing, the Veteran testified that he fell during basic training and injured himself, at which time he was treated at the Fort Benning military hospital. The author of a March 6, 1968, Army Training Center Dispensary note stated that the Veteran indicated that he had polio and could not be convinced that he did not have polio. The same note indicated the Veteran's legs were of equal size, with no atrophy and good muscle strength. However, a March 13, 1968, neurological consultation report indicated that the Veteran had polio at age 3 and subsequently had to wear a left leg brace to prevent giving way. The physician conceded that the Veteran had generally done well in basic training with the exception of an inability to keep up during long marches or running. The examiner diagnosed the Veteran as having bilateral lower extremity weakness and atrophy attributable to old polio, and recommended that the Veteran be expeditiously separated from service. The Veteran was honorably discharged for not meeting the medical standards at the time of induction in April 1968, two months after his February 1968 induction. At the time of a May 1968 VA examination, conducted merely a month after the Veteran's separation from service, he complained of left thigh pain, especially after exertion. The examiner diagnosed the Veteran with left thigh pain, nature and cause undetermined. The examiner additionally noted that the condition was, at most, a muscle strain or "charley horse." Moreover, at the February 2013 VA examination, the Veteran was diagnosed as having residuals status post poliomyelitis of the left lower extremity, at which time the examiner opined that the Veteran had polio affecting the left leg and ankle that clearly and unmistakably preexisted his military service. In support of this conclusion, the examiner indicated that the Veteran acknowledged during the examination that he had polio as child and had to wear special high boots for several years. In addition, the Veteran admitted to having decreased muscle tone of the left leg, weakness of the left leg, and foot drop during his preinduction examination, although this did not prevent his entry into active duty. As such, all of the evidence of record, both that dated contemporaneously to the Veteran's military service as well as the post-service medical opinion obtained in the course of his claim's adjudication, establish that poliomyelitis preexisted service. Indeed, the Veteran himself admitted that he was afflicted with poliomyelitis in childhood and experienced left leg symptomatology related to polio at the time of his induction into service. See Cromer v. Nicholson, 19 Vet. App. 215 (2005). The evidence is also clear and unmistakable in establishing that the Veteran's residuals status post poliomyelitis of the left lower extremity were not aggravated by service. Although the Veteran began to complain of left leg pain during basic training in March 1968, the treating examiner diagnosed the Veteran as having bilateral lower extremity weakness and atrophy attributable to old polio, rather than weakness or atrophy attributable to or aggravated by any in-service event or activity. The post-service evidence also establishes that the Veteran's preexisting lower extremity residuals as not aggravated by service. The February 2013 VA examiner opined that the Veteran's residuals status post poliomyelitis of the left lower extremity were clearly and unmistakably not aggravated beyond their natural progression by an in-service injury, event, or illness. The examiner explained that it was well documented in medical literature that poliomyelitis is an acute, viral, infectious disease that can affect brain and spinal cord nerves and can lead to partial or full paralysis. Over time, muscles that were previously weak may get weaker and weakness may develop in new muscles. Here, the Veteran used a brace as a child due to his left leg giving way following running and excessive walking. The examiner opined that the Veteran's in-service pain and alleged fall without fracture or penetrating wounds would not lead to a worsening of muscles or nerve damage; as such, the Veteran's current residuals of poliomyelitis of the left lower extremity were considered a natural part of the aging process. The Board recognizes that, in the course of his opinion, the February 2013 VA examiner also concluded that the Veteran's preexisting poliomyelitis was "less likely as not (less than a 50% probability) incurred in service or permanently aggravated or made worse." Although this preponderance of the evidence standard is not the correct standard to be applied to rebut the presumption of soundness by clear and unmistakable evidence that the claimant's preexisting disability was not aggravated by service, the Board emphasizes that the examiner used the correct standard, i.e. clear and unmistakable evidence, elsewhere in his opinion. The Board further emphasizes the two standards used in this case do not contradict each other, as the "less likely as not" standard encompasses the stricter "clear and convincing evidence" standard. There can be clear and convincing evidence that the Veteran's preexisting poliomyelitis was not aggravated by service, while at the same time it can be less likely as not that the poliomyelitis was incurred in or permanently aggravated by service. Aggravation does not exist when there is a temporary worsening in symptoms, but the condition itself does not worsen, and the evidence does not establish a worsening of the preexisting condition. Hunt v. Derwinski, 1 Vet. App. 292 (1991). As noted, the Veteran was asymptomatic upon service entrance, based on the clinical findings of the August 1967 preinduction examination, and was reported to have generally done well in basic training with the exception of an inability to keep up during long marches or running. There was no indication of permanent aggravation or worsening of the disability due to in-service activities, only an inability to keep up with others due to the lower left extremity weakness and atrophy which preexisted service. To the contrary, the May 1968 VA examination, conducted merely a month following the Veteran's separation from active duty, revealed the same degree of symptomatology which preexisted service, i.e. left thigh pain upon exertion. Thus, to the extent his condition was symptomatic, the evidence shows that it was temporary and only manifested as result of prolonged activity. Again, the only evidence that the preexisting condition was aggravated by military service is the Veteran's own argument and lay statements. The determination of whether the Veteran's physical problems in service represented a permanent worsening of his polio is not capable of lay observation, but rather required medical expertise to determine. Here, the record contains a negative medical opinion with supporting rationale. As a layperson, the Veteran is competent to describe symptoms that come to him through his five sense, but is not competent to attribute them to a particular etiology or offer a competent opinion on a medical question such as aggravation of a pre-existing disability. See Jandreau v. Nicholson, 492 F.3d. 1372 (Fed. Cir. 2007). Although the Veteran was honorably discharged in April 1968 due to his left lower extremity disability, this discharge was explicitly due to him not meeting the medical standards at the time of induction in February 1968, and not for any in-service worsening or aggravation of the condition itself. In finding the Veteran unfit for duty, it appears it was determined that the Veteran's preexisting condition should have precluded military service altogether, and would thus preclude him from continuing to serve. The preponderance of the evidence is against the claim. There is no doubt to be resolved, and service connection is not warranted. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a left leg and ankle impairment is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs