Citation Nr: 1316746 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 11-31 837 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for residuals of a right leg fracture, to include arthritis. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and D.Z. ATTORNEY FOR THE BOARD V. Chiappetta, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from August 1951 to July 1953. This matter is before the Board of Veterans' Appeals (the Board) on appeal of a July 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which denied the Veteran's service-connection claim for arthritis due to a right leg fracture. The Veteran disagreed with the RO's determination, and perfected this appeal. In March 2013, the Veteran testified at a personal hearing, conducted via videoconferencing equipment, which was chaired by the undersigned. A transcript of that hearing has been associated with the Veteran's VA claims folder. At the hearing, the Veteran submitted additional evidence, in the form of a written lay statement from his son, directly to the Board accompanied by a written waiver of consideration of such evidence by the agency of original jurisdiction. See 38 C.F.R. § 20.1304 (2012). The Board wishes to clarify that it recognizes that the Veteran's original application for disability compensation included two service-connection claims, one for a right leg fracture below the knee with arthritis, and one for a right knee disorder with osteoarthritis. See Veteran's July 2009 Application for Compensation [VA Form 21-526], Part B, Section I. It appears that by phrasing his claims in this way, the Veteran was simply attempting to convey that he seeks compensation for residuals of an in-service right leg fracture, to include arthritis. For the sake of clarity, the RO rephrased the Veteran's original request for compensation accordingly, and adjudicated the issue which his now in appellate status. The Veteran has not in any way asserted that the RO, or in turn the Board at his March 2013 hearing, has mischaracterized his claim, or has in any way failed to address whether service connection is warranted for the disability for which he originally sought a compensation award. In fact, the Veteran's representative specifically listed a single issue on appeal, namely, entitlement to service connection for arthritis due to right leg fracture, on his May 17, 2012 Statement in lieu of VA Form 646. Thus, the Board finds no prejudice in the RO's recharacterization of the issue on appeal, and will similarly discuss whether service connection is warranted for residuals of the Veteran's right leg fracture, to include arthritis. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The medical evidence of record demonstrates that right knee arthritis is the only identified diagnosis pertaining to the Veteran's claimed right knee and lower leg condition. 2. The evidence of record is against a finding that a relationship exists between the Veteran's current right knee arthritis and his period of active duty service. CONCLUSION OF LAW The Veteran's current right knee arthritis disability was not incurred in or aggravated by his active duty military service. 38 U.S.C.A. § 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. § 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The 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 & Supp. 2012); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA applies to the instant claim. The VCAA provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The VCAA also requires VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim, defined to 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. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The RO provided the Veteran with adequate notice under the VCAA and Dingess specific to his service-connection claim in an August 2009 letter. Subsequently, in July 2010, the RO adjudicated this claim in the first instance, and the Veteran filed a timely appeal as to the RO's determination. Accordingly, with respect to VCAA notice, there is no prejudice to the Veteran in the Board's proceeding with the issuance of a decision on the merits as to this claim. Concerning the VA's duty to assist, the Board notes that the Veteran's relevant post-service VA treatment records, two Army unit records, two photographs, his own lay statements, and the lay statements of his son and daughter-in-law have been obtained. Neither the Veteran nor her representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. The Board notes that although the Veteran alluded generally to starting with VA 35 years ago at the March 2013 hearing (Tr. at 6.), he specifically indicated on his July 2009 Application for Compensation that he began seeking treatment for the disability at issue in this case-arthritis-in October 2008. Indeed, the Veteran explained that although he fractured his right leg in 1953, he did not develop arthritis until 1995, and did not seek treatment from the VA medical center (VAMC) in Detroit until 2008. See Veteran's July 2009 Application for Compensation [VA Form 21-526], Part B, Section III. He specified that his VA treatment for arthritis spanned from October 2008 to the present day, which at the time of the application, was July 2009. VA treatment records pertaining to the Veteran's arthritis treatment dated during this time period are of record, and the Veteran has not suggested that any outstanding VA records relevant to his claimed disability exist outside of those which are currently associated with his file. Also at the March 2013 hearing, the Veteran specifically noted he has received private medical treatment for his arthritis disability, but explained that he has been unable to obtain corresponding private treatment records to submit to VA. (Tr. at 4.) At no time during the appeal period has the Veteran asked VA to obtain private treatment records on his behalf. Still, the undersigned did afford the Veteran an additional 60 days from the date of the March 2013 hearing to collect and submit any medical evidence he deemed supportive of his service-connection claim. Sixty days has passed now without any additional evidentiary submissions from the Veteran or his representative. It is clear that the Veteran's service treatment records are missing. The Board is cognizant of Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999), wherein the Court of Appeals for the Federal Circuit elaborated on the VA's responsibility to obtain a veteran's service records. The Board finds, however, that no useful purpose would be served in remanding this matter for more development. In this case, the RO has attempted on multiple occasions to locate the Veteran's service records. In August 2009, the National Personnel Records Center (NPRC) indicated that the Veteran's records were fire related, and that no service treatment records could be recovered. In November 2009, the RO sent the Veteran a letter indicating that his records may have been destroyed in a July 1973 fire at the National Archives and Records Administration in St. Louis, Missouri, and requested that he send any evidence he may have, or any information as to their whereabouts to VA. Based on additional information provided by the Veteran about his unit, two of the Veteran's unit personnel records were obtained and are associated with the file. In July 2010, the RO issued a formal finding as to the unavailability of the Veteran's service records. The Board observes that, where records are unavailable as acknowledge by the claimant, "VA has no duty to seek to obtain that which does not exist." See Counts v. Brown, 6 Vet. App. 473, 477 (1994) (citing Porter v. Brown, 5 Vet. App. 233, 237 (1993)). In any event, as will be explained below, the Board finds the Veteran's statements of having fractured his right lower leg in service to be both competent and credible, and service records are not necessary to establish that an in-service injury to the right leg actually occurred. With respect to the VA examination conducted in conjunction with this appeal, the Board observes that the findings contained therein are more than adequate to adjudicate the Veteran's service-connection claim. The Veteran appeared for VA knee and lower leg examination in October 2011, and the corresponding examination report is of record. Notably, the October 2011 VA examiner indicated that he reviewed the Veteran's claims folder in conjunction with her performance of the VA examinations. The October 2011 examination report, reflects that the examiner was aware of the Veteran's pertinent medical history, recorded the Veteran's current complaints, conducted an appropriate examination, and rendered appropriate findings and diagnoses consistent with the other evidence of record. Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examinations or opinions concerning the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303 (2007). Finally, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above 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. The undersigned set forth the issue to be discussed at the hearing and sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claims. He also specifically focused on the elements necessary to substantiate the claims, to include the need for a nexus opinion linking the Veteran's current disability to his service, and afforded the Veteran an additional 60 days to submit additional medical evidence. See March 2013 Hearing transcript [Tr.] at 2, 8. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. As such, the Board finds that consistent with Bryant, there is compliance with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. In short, the Board has carefully considered the provisions of the VCAA, in light of the record on appeal and, for the reasons expressed above, finds that the development of the Veteran's claim has been consistent with said provisions. The Board is satisfied that any procedural errors in the originating agency's development and consideration of the issue on appeal were nonprejudicial to the Veteran. The Veteran has been accorded ample opportunity to present evidence and argument in support of his claim. See 38 C.F.R. § 3.103. He has retained the services of a representative, and presented testimony before the undersigned at a personal hearing. Accordingly, the Board will address the issue on appeal below. Legal Criteria In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection also may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, a claimant must show: "(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). For certain chronic disabilities identified under 38 C.F.R. § 3.309(a), such as arthritis, direct service connection may alternatively be established based on a finding of continuity of symptomatology. See 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). Service connection for arthritis may be granted if it becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (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 preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). Analysis As discussed above, it appears that the Veteran's service treatment records have been burned and lost in a fire. The Court has held that in cases where records once in the hands of the Government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board's analysis of the Veteran's service-connection claim has been undertaken with this heightened duty in mind. The Veteran asserts that he has current right knee arthritis that is directly related to an in-service fracture of the right lower leg in 1953. See Veteran's July 2009 Application for Compensation [VA Form 21-526], Part B, Section III. It is undisputed that the Veteran currently has arthritis of the right knee. See October 2011 VA examiner's report, at 1. The examiner identified no other diagnoses pertaining to the Veteran's right knee or lower leg conditions. Thus, Shedden element (1), present disability, is accordingly satisfied. The evidence also establishes that the Veteran did in fact fracture his lower leg during his period of active service, based on the Veteran's competent and credible recollections of this injury, and based on corroborating photographs he submitted that depict him in service with a right lower leg cast. Resolving all doubt in the Veteran's favor, the Board finds that the Veteran did in fact injure and/or fracture his right lower leg during service. Accordingly, Shedden element (2), in-service injury, is also satisfied. The Board notes that there is no evidence of record demonstrating that the Veteran had right knee arthritis in service, or within the first post-service year, and the Veteran does not so contend. Indeed, although the Veteran's service treatment records are in fact missing, as noted above, the Veteran himself indicated on his original claim for service connection that he developed arthritis in 1995. See Veteran's July 2009 Application for Compensation [VA Form 21-526], Part B, Section III. As such, service-connection for his arthritis disability is not warranted on a presumptive basis under the provisions of 38 C.F.R. § 3.309(a). With respect to crucial Shedden element (3), nexus or relationship, there is only one medical opinion of record addressing the etiology of the Veteran's current right knee arthritis. Upon review of the record and after examination of the Veteran, the October 2011 VA examiner pertinently determined that the Veteran's right knee arthritis was "less likely than not" incurred in or caused by the Veteran's in-service right leg fracture. By way of rationale, the examiner explained that he reviewed radiographs of both his right and left knee and leg, and found "no residual deformity to the right leg that suggests a post-traumatic injury to the veteran's right knee." He explained that the left knee and leg "show no difference in the nature of bone quality, deformity, alignment, and degenerative arthritis as compared to the claimed right knee/leg injury." Based on this observation, the examiner concluded that the right knee arthritis is the "natural progression of the disease and not the result of injury." See October 2011 VA examiner's report, at 8. The Board places great weight on this probative piece of evidence because the examiner was aware of the pertinent facts and provided a rationale with sound reasoning backed by clinical data. The October 2011 VA examiner's findings have support in the record. Indeed, x-rays taken of the Veteran's right knee in January 2009 similarly showed "no evidence of fracture-dislocation or joint effusion." See January 21, 2009 VA radiological report. There is no medical opinion of record that is contrary to that of the October 2011 VA examiner. The Veteran has been accorded ample opportunity to furnish medical evidence in support of his claim, and against the above-described conclusions of the VA examiners, but he has not done so. See 38 U.S.C.A. § 5107(a) (noting that it is a claimant's responsibility to support a claim for VA benefits). The Board recognizes the Veteran's recent assertion that his private chiropractor told him that his current right knee arthritic pain was due to his in-service fracture. See March 2013 Hearing Tr. at 4-5. The Veteran's son similarly asserted in a March 2013 statement that he was present when the Veteran's chiropractor linked the arthritis with the in-service fracture. The Veteran and his son are certainly competent to attest to what another physician told them about the etiology of the Veteran's disability, and the Board finds no reason to doubt the their credibility. Crucially, however, the chiropractor's medical conclusion is unsupported by any rationale. Indeed, unlike the October 2011 VA examiner's report, which contains a cogent clinical analysis in support of the examiner's nexus opinion based on an understanding of the Veteran's past history and upon review of the Veteran's current x-rays, the record simply contains no supplemental clinical explanation in support of the purported findings or conclusions of the Veteran's chiropractor. As such, the Board accordingly finds the opinion of the October 2011 VA examiner to be far more probative than any unsubstantiated opinion to the contrary that may have been expressed by the Veteran's chiropractor. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when there is factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion . . . must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) (the failure of the health care provider to provide a basis for his/her opinion goes to the weight or credibility of the evidence). As noted above, the Board afforded the Veteran an additional 60 days following the March 2013 hearing to collect and submit any medical evidence that would support his claim, to include a statement from his chiropractor. The Veteran did not submit any additional evidence. The Board recognizes that lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Crucially however, the resolution of the key issue in this case-namely, whether the Veteran's right knee arthritis is related to active duty service-falls outside the realm of common knowledge of a lay person. Cf. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) ("Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer."). The record does not reflect that the Veteran has had the education, training, or experience to qualify him to offer medical opinions, such as the etiology of right knee arthritis. 38 C.F.R. § 3.159(a)(1) (2012); see also DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 149 (30th ed. 2003) (defining "arthritis" as "inflammation of a joint"). The Board notes that arthritis is a disability specifically characterized as a "chronic disease" under 38 C.F.R. § 3.309(a). As such, entitlement to service connection may still be established by a showing of continuity of symptoms, as per 38 C.F.R. § 3.303(b) described above. See Walker, 708 F.3d at 1338-39. In this connection, the Veteran has at one point during the appeal period noted that he has had right leg pain since his in-service injury [see the October 2011 VA examiner's report, at 1], and both the Veteran's son (age 55) and his daughter-in-law (age 48) have stated that they observed the Veteran with an altered gait since they were children and recall the Veteran describing his limp to them at the time as an "old war injury." See Veteran's son's March 2013 statement; see also March 2013 Hearing Tr. at 6. The Veteran, his son, and his daughter-in-law are competent to report observable symptomatology, as well as what they recall observing and hearing as children. The credibility of these reports, however, is questionable. Indeed, at the March 2013 hearing, the Veteran testified that he was not having problems with his right leg for a very long time, and that his leg had worsened in the past years. See March 2013 Hearing Tr. at 4. Similarly, when he first filed his service-connection claim in July 2009, the Veteran described his 1953 in-service injury as "somewhat of an acute condition, but now is not so acute." Consistent with this reported history, the medical evidence of record includes notation that the Veteran's chronic severe leg pain has existed only since the prior October. See Veteran's January 26, 2009 VA Rheumatology Consult report. Notwithstanding these generally conflicting histories just noted, even if the Board were to find the Veteran's and his relatives' histories of longstanding right leg pain wholly credible, the Board finds the probative value of this lay evidence to be outweighed by the informed and reasoned opinion of the October 2011 VA examiner, described above. The October 2011 VA examiner makes clear that regardless of the presence of longstanding pain, the Veteran's current disability is simply not related to any in-service injury. Rather, the Veteran's arthritis is the manifestation of the natural progression of his disease, as x-rays of the Veteran's injured right lower leg showed no difference in the nature of bone quality, deformity, alignment and degenerative arthritis when compared to x-rays of the uninjured left lower leg. The examiner clearly considered the Veteran's report of having leg pain since service before forming his conclusions, as the Veteran's claimed history of leg pain is documented on page 1 of the examination report. As noted above, the examiner supported his conclusions with a cogent rationale based on review of the objective medical evidence of record as well as his own physical examination, and the examiner's reading of the Veteran's 2011 x-rays is consistent with prior readings documented by VA physicians in 2009. See Veteran's January 21, 2009 VA radiological report (identifying "no evidence of fracture-dislocation or joint effusion" on x-ray). Based on the Veteran's inconsistent reporting of his own medical history, coupled with the strong medical opinion evidence of record suggesting that the Veteran's longstanding arthritic disability is unrelated to any in-service injury, the Board finds that the evidence of record is against a finding of continuity of symptoms since service. Shedden element (3) remains unsatisfied, and the Veteran's service-connection claim fails on this bases. The Board notes that it has considered its heightened obligation to explain its findings and to consider carefully the benefit-of-the-doubt rule in this case, but finds that the benefit-of the-doubt rule is simply not for application because the evidence is not in relative equipoise. ORDER Entitlement to service connection for residuals of a right leg fracture, to include arthritis, is denied. ____________________________________________ Paul Sorisio Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs