Citation Nr: 1315846 Decision Date: 05/14/13 Archive Date: 05/15/13 DOCKET NO. 06-33 863 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a left leg disorder. 2. Entitlement to service connection for a right leg disorder. 3. Entitlement to service connection for a left heel disability. 4. Entitlement to service connection for a right heel disability. 5. Entitlement to service connection for bronchitis. 6. Entitlement to service connection for a neck disability. 7. Entitlement to service connection for a back disability. 8. Entitlement to service connection for a chest wall disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The appellant had active duty for training from November 1995 to March 1996, June 2, 1996 to June 15, 1996, May 31, 1997 to June 15, 1997, July 10, 1999 to July 23, 1999, and from June 16, 2001 to June 29, 2001. She also had periods of inactive duty for training. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied the appellant's claim for service connection for each disability at issue. This case was previously before the Board in October 2009 and again in April 2011, and was remanded for additional development of the record and/or to ensure due process. As the requested actions have been accomplished, the case is again before the Board for appellate consideration. FINDINGS OF FACT 1. A left leg disability has not been documented following the appellant's active duty for training. 2. A right leg disability has not been shown following the appellant's active duty for training. 3. A left heel disability has not been demonstrated following service. 4. A right heel disability has not been shown following the appellant's active duty for training. 5. Bronchitis has not been demonstrated following service. 6. There has been no demonstration by competent medical, or competent and credible lay, evidence of record that the appellant has a back disability that is etiologically related to a period of active duty for training. 7. There has been no demonstration by competent medical, or competent and credible lay, evidence of record that the appellant has a neck disability that is etiologically related to a period of active duty for training. 8. A chest wall disorder has not been shown following service. CONCLUSIONS OF LAW 1. A left leg disability was not incurred in or aggravated by active duty for training or inactive duty for training. 38 U.S.C.A. §§ 101(24), 106, 1110, 5107 (West 2002). 2. A left leg disability was not incurred in or aggravated by active duty for training or inactive duty for training. 38 U.S.C.A. §§ 101(24), 106, 1110, 5107 (West 2002). 3. A left heel disability was not incurred in or aggravated by active duty for training or inactive duty for training. 38 U.S.C.A. §§ 101(24), 106, 1110, 5107 (West 2002). 4. A right heel disability was not incurred in or aggravated by active duty for training or inactive duty for training. 38 U.S.C.A. §§ 101(24), 106, 1110, 5107 (West 2002). 5. Bronchitis was not incurred in or aggravated by active duty for training or inactive duty for training. 38 U.S.C.A. §§ 101(24), 106, 1110, 5107 (West 2002). 6. A neck disability was not incurred in or aggravated by active duty for training or inactive duty for training. 38 U.S.C.A. §§ 101(24), 106, 1110, 5107 (West 2002). 7. A back disability was not incurred in or aggravated by active duty for training or inactive duty for training. 38 U.S.C.A. §§ 101(24), 106, 1110, 5107 (West 2002). 8. A chest wall disorder was not incurred in or aggravated by active duty for training or inactive duty for training. 38 U.S.C.A. §§ 101(24), 106, 1110, 5107 (West 2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice was provided to the appellant in a March 2005 letter. While complete VCAA notice was not provided prior to the initial determination, the claim was readjudicated in February 2013. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of fully compliant notification followed by readjudication of the claim, such as a statement of the case or a supplemental statement of the case is sufficient to cure a timing defect). The Board notes only a few service treatment records are in the claims folder. VA has made numerous attempts to obtain the service treatment records. In August 2012 and again in February 2013, the VA made a formal determination the Veteran's service records were unavailable, and listed the efforts they had made to retrieve those records. In cases such as these, the VA has a heightened duty to explain its findings and conclusions and to consider carefully the benefit of the doubt rule. Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board's analysis of the appellants' claim was undertaken with this duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all the evidence that may be favorable to the Veteran. Russo v. Brown, 9 Vet. App. 46 (1996). The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant. Specifically, the information and evidence that have been associated with the claims file include some service treatment records, private and VA medical records, and the testimony of the appellant at a hearing before the undersigned. The Board acknowledges the appellant has not been afforded a VA medical examination to obtain an opinion regarding the etiology of any disability in issue. Based on the evidence in this case, the Board finds that an examination is not necessary. As is discussed in greater detail below, there has been no indication that any current claimed disability, if present, may be associated with service, so as to warrant a VA examination. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the appellant in developing the facts pertinent to the claim. Essentially, all available evidence that could substantiate the claim has been obtained. Analysis The Board has reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The term "active military, naval, or air service" includes active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C.A. § 101(24). Under the law, service connection may be granted for disability resulting from disease or injury incurred in or aggravated while performing active duty for training or injury incurred or aggravated while performing inactive duty training. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131. On an enlistment examination for the Reserves in June 1995, the lungs and chest, lower extremities and spine were evaluated as normal. The feet were noted to be abnormal, and it appears the appellant was said to have pes planus. There is no indication of any problems involving the heels. The service treatment records disclose the appellant was seen for right heel pain and left leg pain in January 1996. The same entry also shows she complained of right leg and left heel pain of five weeks duration. It was reported she needed a refill of her medication, and that she was doing better. The appellant was seen in a service department facility in February 1998 and complained of neck, chest and back pain. It was stated she had chest wall pain that had come on the previous night over her anterior chest, and radiated to the costal margins, and subsided after she took Advil. The assessment was chest wall pain, resolved. A billing statement from a private chiropractor reflects the appellant was seen from July 29, 1999 to 2003. It was indicated she had X-rays of the thoracic spine in July 1999. Reference is also made in these records to a Workmen's Compensation claim. The diagnoses were cervicobrachial syndrome, thoracic segmental dysfunction, acute lumbar segmental dysfunction and myofascitis. An Office of Workers Compensation Programs form dated August 1999 shows a chiropractor was authorized to provide medical care for the appellant. It was noted she had middle to low back strain, and that she had been injured on July 29, 1999. It was further indicated there was no doubt the appellant's condition was caused by an injury sustained in the performance of her duty, or was otherwise related to her employment. In a May 2000 letter, a private chiropractor wrote that when he saw the appellant on July 29, 1999, she related a job injury to her back involving lifting boxes and equipment at her place of employment. An examination revealed positive orthopedic and chiropractic tests consistent with the type of injury she had. X-rays revealed loss of the normal cervical lordotic curve (kyphosis) and right lateral bending (scoliosis) of the lumbar spine. The chiropractor opined, based upon a reasonable degree of chiropractic certainty, that the appellant's condition was the result of the injury on July 29, 1999. The appellant underwent a medical examination in August 2001 for retention in the Reserves. The lungs and chest, spine and lower extremities were evaluated as normal. A chest X-ray at a VA facility in August 2001 was negative. A report of medical examination in November 2001 discloses the lungs and chest, lower extremities and spine were evaluated as normal. The appellant was seen in a private facility in May 2003 and reported she had developed pain in both thigh that day when running the bases during a softball game. Back pain was also noted. When seen for unrelated complaints in November 2003, it was noted she was on medication for back pain. A January 2005 medical record reflects the appellant reported low back pain while bending over. She stated she already had a Workman's Compensation claim in 1999 that had been reopened in 2003. The assessment was work-related low back pain/strain. In March 2005, a private chiropractor completed a form for the Office of Workers Compensation Programs. It was noted he had treated the appellant for an on-the job injury that occurred about two months earlier. He indicated he had previously treated her for a similar injury. An examination was positive for spinal misalignment. Private medical records disclose the appellant was afforded magnetic resonance imaging of the lumbar spine for bilateral leg pain. The test showed the lumbar spine was unremarkable. The appellant was seen by a private physician in November 2005 for neck pain and back pain. It was stated she had a long history of back problems. She indicated she had been in the Reserves some time ago, and since then, had experienced a lot of back problems, and some neck symptoms. These were mostly musculoskeletal in origin. The examiner assessed musculoskeletal back pain. The appellant asserts service connection is warranted for each disability at issue. During the hearing before the undersigned, she testified her leg problems began in basic training around November 1995. She insists she was treated at an aid station for her left leg, and was given Motrin. She reports she was diagnosed with shin splints. She states she had heel problems and a recurrence of bronchitis while on active duty for training. The appellant also testified that she was hospitalized prior to service for her cervical spine and that the condition was aggravated in service. The Board acknowledges the appellant reported heel and leg pain in January 1996, while she was on active duty for training. Her prescription was renewed, and it was stated she was doing better. The Board recognizes most of the service treatment records from the appellant's active duty for training service have not been associated with the claims folder. It is noted, however, that an examination in November 2001 failed to demonstrate any heel or leg problem. The appellant next reported thigh pain in 2003, and she stated at that time the pain began that day when she was playing softball. She did not refer to any previous injury. Thus, the evidence suggests her complaints in January 1996, during a period of active duty for training, were acute and transitory and did not establish the presence of a disability. With respect to the claim for service connection for a back disability, the Board notes the appellant sought treatment from a chiropractor on July 29, 1999, less than one week after one of her periods of active duty for training. The record demonstrates, however, that the injury occurred at a time she was not on active duty for training. There is nothing in the contemporaneous clinical records suggesting she was injured while on active duty for training. In fact, the Office of Workers Compensation Programs form of August 1999 determined the appellant's condition had been caused by her job, and there was no mention of her Reserve service. Similarly, in May 2000, the treating chiropractor observed her condition was due to the injury sustained on July 29, 1999. As noted above, the appellant claimed in November 2005 that she had neck and back pain since her time in the Reserves. This statement is not supported by the record. While she testified she had neck problems prior to service, the enlistment examination in June 1995 did not show any abnormality of the neck. There is no indication of complaints pertaining to the cervical spine in the available service treatment records. Moreover, the examination in August 2001 did not show any abnormality of the spine, to include the neck. The appellant maintains she was diagnosed with bronchitis as a child and had recurrences of it while on active duty for training. She maintains she took over the counter medication, but her condition worsened. She also claims she was treated for chest wall complaints and given valium. The Board observes the appellant was treated in February 1998 for chest wall pain that began the previous night. It was indicated her symptoms had resolved. She was also treated in October 1998 for sinus congestion. She was assessed with viral syndrome. This was not during a period of active duty for training and, in any event, she did not have bronchitis. In this regard, the Board points out the lungs were normal on examination in August 2001, and a chest X-ray at that time was also normal. The fact remains there is no clinical evidence the appellant has ever had bronchitis following service. Similarly, there is no indication the appellant has a disability involving the chest wall. The Board acknowledges the assertions of the appellant that she has a back or neck disability that is related to service. She is competent to report that she has experienced such problems in service, and since her separation from service. Lay persons are competent to provide opinions on some medical issues; however, the specific issues in this case fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). There is no competent evidence linking any current back or neck disability to the appellant's period of active duty for training. The Board points out the appellant's allegations regarding the onset of such disabilities are contradicted by the clinical record. Thus, the Board finds her assertions relating any current back or neck disability are of limited probative value. Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992). On the basis of the above analysis, the Board finds the preponderance of the evidence is against a finding that the appellant currently has a bilateral heel disability, a bilateral leg disability, bronchitis or a chest wall disability. Thus, the preponderance of the evidence is against the claim for service connection for these disabilities. Accordingly, service connection for right or left heel disabilities, right or left leg disabilities, bronchitis and a chest wall disability may not be granted. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for a left leg disability, a right leg disability, a left heel disability, a right heel disability, a neck disability and a back disability is denied. Service connection for bronchitis and a chest wall disorder is denied. ______________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs