Citation Nr: 1317595 Decision Date: 05/30/13 Archive Date: 06/06/13 DOCKET NO. 10-18 479 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for a right ankle disorder. 2. Entitlement to service connection for a right foot disorder. 3. Entitlement to service connection for a right knee disorder. 4. Entitlement to service connection for a left leg disorder, to include as due to a service-connected right lower extremity disorder. 5. Entitlement to service connection for residuals of a burn injury to the right hand. REPRESENTATION Appellant (Veteran) represented by: Kristen Vanderkooi, Attorney ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The Veteran served on active duty from January 1952 to July 1954. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. In any event, no evidence has been added to the record since the February 2013 supplemental statement of the case. In a July 2008 VA Form 21-22, the Veteran selected as his representative Disabled American Veterans (DAV). In a January 2012 VA Form 21-22a, he selected his current attorney to represent him in all matters before VA. This fact has been recognized by the RO in correspondence to the Veteran dated until as recent as April 2013. In March and April 2013, however, DAV submitted to the Board statements in support of the Veteran's claims. In May 2013, the Board consulted with DAV regarding their understanding of the Veteran's representation, and DAV indicated that the VA Form 21-22a executed in January 2013, appointing the Veteran's attorney, is effective. As such, the Board has recognized K.V., rather than DAV, as the Veteran's representative. Please note 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. During active duty, the Veteran was treated for an injury to his right leg. 2. A chronic right ankle disorder was not shown in service; chronic problems with the right ankle were not shown until many years after service; and the Veteran's current right ankle disorder is not related to a disease or injury of service origin. 3. A chronic right foot disorder was not shown in service; chronic problems with the right foot were not shown until many years after service; and the Veteran's current right foot disorder is not related to a disease or injury of service origin. 4. A chronic right knee disorder was not shown in service; chronic problems with the right knee were not shown until many years after service; and the Veteran's current right knee disorder is not related to a disease or injury of service origin. 5. A chronic left leg disorder was not shown in service; chronic problems with the left leg were not shown until many years after service; and the Veteran's current left leg disorders are not related to a disease or injury of service origin, or to a service-connected disorder. 6. The Veteran does not have current residuals of an injury to the right hand during service. CONCLUSIONS OF LAW 1. A right foot disorder was not incurred in or aggravated by active service, and may not be presumed related to service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309 (2012). 2. A right ankle disorder was not incurred in or aggravated by active service, and may not be presumed related to service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309 (2012). 3. A right knee disorder was not incurred in or aggravated by active service, and may not be presumed related to service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309 (2012). 4. A left leg disorder was not incurred in or aggravated by active service, may not be presumed related to service, and is not related to a service-connected disorder. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309, 3.310 (2012). 5. Residuals of an injury to the right hand, to include a skin disorder, were not incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. 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). The VCAA applies to the claim to service connection decided here. 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, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Proper VCAA notice must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1). 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 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, 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, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In July 2008, the RO submitted a notice letter to the Veteran which provided full notification regarding what information and evidence is needed to substantiate his claims of service connection. The letter addressed the information and evidence that must be submitted by the Veteran and the evidence that VA would obtain. The letter detailed criteria at issue in claims for secondary service connection. The letter included provisions regarding disability ratings and effective dates. Moreover, the RO provided full notification prior to the November 2008 rating decision on appeal. See Mayfield, supra. VA has therefore met its duty to provide VCAA notification to the Veteran regarding the claims addressed in this decision. With regard to the duty to assist, the RO obtained the Veteran's service treatment records (STRs), relevant private and VA treatment records and reports, and accepted into the record lay statements from the Veteran. In December 2012, the RO provided the Veteran with a VA compensation examination into his service connection claims. The examination, and its report and opinion regarding service connection, are adequate for rating purposes. The report indicates a review of the Veteran's medical history and complaints, reflects clinical observations, and renders assessments regarding whether the Veteran has the several disorders at issue, and whether any such disorders relate to service. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). In sum, the record is sufficiently developed for a determination at this time. The Board will rely on the record to determine the Veteran's claims to service connection. Appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. The Merits of the Claims to Service Connection The Veteran claims that he incurred right foot, ankle, and knee disorders during service as the result of a basketball injury, and that disability associated with that injury led to a left leg disorder. He further claims he was electrocuted during service and sustained a chronic skin disorder on the right hand as a result. Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). When a Veteran seeks service connection for a disability, due consideration shall be given to the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the Veteran served, the Veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154; 38 C.F.R. § 3.303(a). Service connection may be awarded where the evidence shows that a Veteran had a chronic condition in service or during an applicable presumptive period and still has the condition. 38 C.F.R. §§ 3.303(b), 3.307, 3.309. Certain disorders such as arthritis are presumed to have been incurred in service if manifested to a compensable degree within one year after service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. If there is no evidence of a chronic condition during service or during an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim. The U.S. Court of Appeals for the Federal Circuit recently clarified that the continuity of symptomatology language in § 3.303(b) is limited to the chronic diseases listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for disease that is diagnosed after discharge from active service, when the evidence establishes that such disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to establish service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Service connection may also 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) (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. See 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. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. In Alemany v. Brown, 9 Vet. App. 518 (1996), the United States Court of Appeals for Veterans Claims (Court) found that in light of the benefit of the doubt provisions of 38 U.S.C.A. § 5107(b), an accurate determination of etiology is not a condition precedent to granting service connection; nor is "definite etiology" or "obvious etiology." The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). With regard to the Veteran's claim for service connection for residuals of an in-service electrocution to the right hand, the Board finds no evidence of a current disorder, particularly the skin disorder he claims. The Veteran's STRs are negative for a disorder on the right hand, as are VA and private treatment records dated to as recent as 2012. Further, the December 2012 VA report expressly noted no skin disorder. 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) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). As a preponderance of the evidence indicates that the Veteran does not have residuals of an in-service electrocution injury, to include a right hand skin disorder, a service connection finding is not warranted for this particular claim. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. By contrast, the record clearly establishes that the Veteran has current disorders in his right and left lower extremities. The December 2012 VA examiner diagnosed the Veteran with severe neurological disability in the right leg involving drop foot, chronic right edema of the lower right leg, with venous stasis disease in both legs, with degenerative joint disease in both knees, lumbar radiculopathy into the lower extremities, right ankle sprain, and onychomycosis. The examiner further indicated that the Veteran had no range of motion in his right ankle, needed a wheelchair, used a cane when attempting to ambulate, and used an orthosis brace for foot drop and neuropathy. The examiner stated that the Veteran was "extremely limited" in his ability to walk. The record also demonstrates that the Veteran injured his right lower extremity during service. A STR dated in January 1954 indicates that, although x-rays were negative, the Veteran injured his right ankle while playing basketball. Furthermore, the Board has considered the Veteran's lay statements of record regarding his in-service injury to the right lower extremity. Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). As the Veteran is competent to attest to symptoms such as pain and limitation he may have experienced as a result of the injury, his lay assertions are of probative value. The Veteran's symptoms, which he felt, are observable in nature. Moreover, the Veteran's lay assertions of an in-service injury are credible, as they are consistent with the January 1954 STR. See Caluza v. Brown, 7 Vet. App. 498 (1995) (in weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness). The Board finds the record sufficiently developed with medical and lay evidence to conclude that an injury did in fact occur to the right lower extremity as the result of physical exercise during service. See Smith v. Derwinski, 1 Vet. App. 235, 237-38 (1991) (credibility is determined by the fact finder). With reference to Hickson element (3), the ultimate question before the Board is whether the Veteran has a current disability that relates to service in general, and the injury noted above in particular. For the Veteran to be successful in any of his claims, the evidence must show either that it is at least as likely as not that a lower extremity disability (either right or left) is related to a disease or injury that occurred in service, or that a neurological or degenerative disorder was shown in the first post-service year. If the preponderance of the evidence shows otherwise, the Veteran's claims must be denied. Though the Board finds the Veteran with the current lower extremity disabilities he claims, and accepts as fact that he injured his right leg in service, the preponderance of the evidence is against the assertion that the current lower extremity problems relate to service, including the in-service injury in the mid 1950s. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Indeed, the record demonstrates that the Veteran did not incur a chronic lower extremity disorder during service, did not develop a degenerative or neurological disorder in either lower extremity within one year of his July 1954 discharge from active service, and did not experience a continuity of symptomatology of a leg disorder for many years following service. 38 C.F.R. §§ 3.303, 3.307, 3.309. The Veteran's July 1954 separation report of medical examination found the Veteran's lower extremities to be normal. The report contains no mention of the leg injury approximately six months earlier. The record is then negative for complaints, treatment, or diagnoses of a lower extremity disorder for nearly five decades after separation from active service. The earliest post-service medical evidence addressing the Veteran's lower extremities is found in the late 2000s, over 50 years following the Veteran's July 1954 separation from active duty. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability may be considered in evaluating a claim of service connection). When compared with the other evidence of record, including the paucity of evidence of treatment for a lower extremity disorder between the January 1954 injury and the late 2000s, the Board is left with no other conclusion but that the Veteran's injury did not cause a chronic disorder that continued in the years following service to the present day. The record indicates treatment during service, but indicates that any injury to a lower extremity had resolved. 38 C.F.R. §§ 3.303, 3.307, 3.309. In assessing the issue of medical nexus between current disorders and service, the Board has reviewed a medical opinion from the December 2012 VA examiner. The examiner stated that the claims file had been reviewed, and that the Veteran had been examined and interviewed. The examiner cited the evidence indicating that the in-service injury had resolved by the time of discharge from service, and stated that the Veteran had no complaints until the 2000s, "whereupon he developed progressive neuropathic findings." He stated that the Veteran's neurological problems in the lower extremities "are most often due to diabetes or idiopathic and are not deemed due to trauma and certainly not trauma from over 50 years ago." The examiner then indicated that it would be "insurmountable" to relate the physical complaints during service of an "apparent minor trauma" to "his current condition." See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician's statement is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support the opinion). On the issue of medical nexus, the Board has also closely considered the Veteran's lay statements of record, in which he states that his current disorders relate to his in-service injury. As indicated, the Veteran is competent and credible to offer evidence of his in-service injury and the symptoms he experienced in January 1954, and following the injury. However, on the question of whether the in-service injury resulted in a chronic degenerative or neurological disability, his statements are of limited probative value. The orthopedic and neurological disabilities at issue involve internal pathologies that are beyond the capacity for lay observation. Their etiologies and their development cannot be determined through observation or by sensation such as feeling. The Veteran is simply not competent to render a medical opinion regarding the way in which the disorders in his lower extremities developed. He does not have the training and expertise to provide medical evidence connecting service to the symptoms, or connecting the symptoms to the disorders at issue. The Veteran cannot provide evidence that states that what he felt in the right leg during service, or has felt since service, resulted in degenerative or neurological changes. On these essentially medical questions, the medical evidence is of more probative value. And the medical evidence clearly indicates no relationship between the Veteran's service and the neurological and degenerative changes in his legs. In sum, the record indicates that the Veteran injured his right lower extremity during service in January 1954, and further indicates that he currently has orthopedic and neurological disabilities in each of his lower extremities. However, the preponderance of the evidence of record demonstrates that the current problems are unrelated to service. Service connection is therefore unwarranted under 38 C.F.R. §§ 3.303, 3.307, 3.309 for disabilities in the right and left lower extremities. Service connection is also unwarranted here on a secondary basis. As the Veteran is not service connected for a right lower extremity disorder (or for that matter, any other disability), his secondary service connection claim for a left leg disability must necessarily fail. The condition precedent for a secondary service connection finding - a service-connected right lower extremity disorder - is lacking. 38 C.F.R. § 3.310. As the preponderance of the evidence is against the Veteran's claims, the benefit-of-the-doubt rule does not apply, and the claims must be denied. 38 U.S.C.A. § 5107(b); Gilbert, supra. (Continued on the next page) ORDER 1. Entitlement to service connection for a right ankle disorder is denied. 2. Entitlement to service connection for a right foot disorder is denied. 3. Entitlement to service connection for a right knee disorder is denied. 4. Entitlement to service connection for a left leg disorder is denied. 5. Entitlement to service connection for residuals of a burn injury to the right hand is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs