Citation Nr: 1318403 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 09-42 730 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a bilateral ankle disability, to include as secondary to service-connected low back sprain. 2. Entitlement to service connection for a psychiatric disability, claimed as depression secondary to service-connected low back sprain. 3. Entitlement to service connection for a bilateral hip disability, to include as secondary to service-connected low back sprain. 4. Entitlement to service connection for a cervical spine disability, to include as secondary to service-connected low back sprain. 5. Entitlement to service connection for a bilateral knee disability, to include as secondary to service-connected low back sprain. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from February 1986 to March 1992. This appeal comes to the Board of Veterans' Appeals (Board) from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction over the case was subsequently returned to the RO in Houston, Texas. The Veteran presented testimony at a videoconference hearing before the undersigned Veterans Law Judge in February 2013. A transcript of the hearing is of record. The issue of entitlement to service connection for a bilateral elbow disability has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. The claims for service connection for disabilities of the hips, knees and cervical spine are addressed in the REMAND that follows the ORDER section of this decision. FINDINGS OF FACT 1. No disability of either ankle has been present during the period of the claims. 2. The Veteran's currently diagnosed psychiatric disorder, adjustment disorder with mixed depression and anxiety, is etiologically related to his service-connected low back sprain. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral ankle disability have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). 2. The criteria for service connection for psychiatric disability, diagnosed as adjustment disorder with mixed depression and anxiety, have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide 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. They also require 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 Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), 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 timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board finds that the duty to notify provisions have been complied with. A July 2007 letter from the RO provided the Veteran with the requisite information. This notification was provided prior to the initial adjudication of the claims in December 2008. As explained below, the Board has determined that the evidence currently of record is sufficient to substantiate the claim for service connection for psychiatric disability. Therefore, no further development is required before the Board decides that claim. With respect to the claim for service connection for bilateral ankle disability, the duty to assist the Veteran has been satisfied in this case. The Veteran's service treatment records, as well as identified VA and private medical treatment records, have been obtained. Neither the Veteran nor his representative has identified any outstanding, existing evidence that could be obtained to substantiate the claim. The Board is also unaware of any such evidence. VA also provided the Veteran with an appropriate VA examinations to determine the etiology of his claimed bilateral ankle disability. The March 2008 medical examination report reflects that the examiner reviewed the evidence of record, considered the Veteran's lay statements, and examined the Veteran. While the Board acknowledges that the VA examiner did not provide a rationale in support of the opinion that the claimed condition of the ankles is not caused by or a result of active duty service, the Board finds that the examination report is adequate since the examiner determined that the Veteran's ankles are normal and there is no other medical evidence showing that the Veteran has been found to have a disorder of the ankles. Accordingly, the Board will address the merits of the claims. Legal Criteria Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 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. Service Connection for Bilateral Ankle Disability The Veteran claims that service connection is warranted for bilateral ankle disability because his ankle problems began in service due to his duties as a firefighter, to include carrying heavy equipment, and have continued since service. Alternatively, he contends that his bilateral ankle disability is due to an altered gait and altered posture caused by his service-connected low back disability. The Veteran's service treatment records are negative for evidence of a disorder of either ankle. The Board finds, however, that the Veteran's statements related to in-service problems with his ankles are competent. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). With the exception of a March 2008 VA orthopedic examination report, the post-service medical evidence of record is also negative for evidence of a disorder of either ankle. See VA treatment records; records from Dr. P.R.; undated letter from Dr. S.J. The Veteran underwent a VA orthopedic examination in March 2008, at which time his claims folder was available for review. A history was obtained from the Veteran, which included his report of bilateral ankle problems secondary to his low back strain. He denied receiving any treatment for his ankles. The physical and X-ray examinations of the Veteran's ankles revealed normal findings. The examiner diagnosed right ankle stable joint normal examination and left ankle stable joint normal examination. It was the examiner's opinion that there was no evidence to suggest the Veteran's low back disability caused the issue associated with his ankle joints. The examiner noted that the Veteran's gait was normal, that he had not received any treatment for his ankles, and that the currently claimed ankle condition was not caused by or the result of active duty service and/or lumbar strain. The examiner also noted that there was no research to support the Veteran's contention. The Board notes that, "Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability ... in the absence of a proof of present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Court also has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this case there is no medical evidence of the presence of an ankle disorder in or since service. Moreover, the physical and X-ray findings on the VA examination of the Veteran's ankles in March 2008 were normal, and the examiner concluded that the Veteran's ankles were normal. The Board acknowledges that the Veteran is competent to report that he experiences ankle symptoms; however, in the Board's opinion the objective evidence prepared by a skilled examiner is more probative than the Veteran's self-serving statements. In light of the absence of any corroborating evidence of the claimed bilateral ankle disability and the VA examination report indicating that the Veteran's ankles are normal, the Board must conclude that the preponderance of the evidence is against the claim. Service Connection for Psychiatric Disability The Veteran contends that service connection is warranted for psychiatric disability because it is related to the chronic pain from his service-connected low back strain. The Veteran underwent a VA mental disorders examination in March 2008, at which time his claims folder was available for review. A history was obtained from the Veteran, which included his report of frequent sadness related to multiple life stressors. In addition to almost daily pain, the Veteran reported that his wife was disabled from multiple sclerosis and it had been upsetting to him in the last three to four months to watch her and not be able to help because of his back pain. He also reported a lot of conflict with his ex-wife, with whom he shared joint custody of their sons. A detailed mental status examination was conducted and an Axis I diagnosis of adjustment disorder with mixed depression and anxiety was rendered. It was the examiner's opinion that the disorder is less likely as not a result of the back pain secondary to military service. The rationale was that the problems had developed over the past three to four months and seemed to be greatly exacerbated by his wife's problems and his problems with his sons. The examiner also indicated, however, that, "Certainly, his back problems contribute to that but his back problems have been going on for much longer and these problems with depression and anxiety have developed much more recently." The last part of the examiner's opinion has been interpreted as the Board to mean that irrespective of when the Veteran's adjustment disorder with mixed depression and anxiety began, his back problems, to include reported chronic pain, have contributed to it. Resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for adjustment disorder with mixed depression and anxiety is warranted on a secondary basis. ORDER Service connection for a bilateral ankle disability is denied. Service connection for psychiatric disability, diagnosed as adjustment disorder with mixed depression and anxiety, is granted. REMAND Additional development is required before the claims for service connection for disabilities of the hips, knees and cervical spine are decided. A VA orthopedic examination was conducted in March 2008. The report of that examination is inadequate for several reasons. First, the VA examiner failed to address the X-ray evidence of degenerative changes involving the hip joints when diagnosing the Veteran with right and left hip normal examination stable joint. Second, the VA examiner did not provide an adequate rationale in support of the conclusion that the Veteran's cervical spine, hip and knee problems were not caused by or the result of active duty service. These deficiencies must be rectified on remand. Rectification is especially important given the documented treatment in service related to the Veteran's neck and the Veteran's competent report that he had in-service problems with his hips and knees as a result of his duties as a firefighter. While this case is in remand status, development to obtain any outstanding records pertinent to the claims also should be completed. The Veteran is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failing to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655 (2012). Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims, to include any pertinent treatment records from the South Texas Healthcare System, dated since May 2007. 2. Then, arrange for the Veteran to be scheduled for a VA examination by a physician with sufficient expertise to determine the nature and etiology of all disorders involving his cervical spine, knees and hips present during the period of the claims. The claims folder and any pertinent evidence in Virtual VA that is not contained in the claims folder must be made available to and reviewed by the examiner. Any indicated studies should be performed. With respect to each disorder of the cervical spine, knees and hips that has been present during the pendency of the claims, the examiner should address the following: (a) whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the disorder had its onset during active service or is otherwise etiologically related to active service. In providing this opinion, the examiner must acknowledge the documented in-service treatment for the Veteran's neck and the Veteran's competent report of in-service problems with his knees and hips as a result of his duties as a firefighter. (b) If the answer to (a) is no, is it at least as likely as not (i.e., probability of 50 percent or greater) that the disorder was caused or permanently worsened by the Veteran's service-connected low back disability? If aggravation has occurred, the clinician should indicate, to the extent possible, the approximate level of disability (i.e., a baseline) that was present before the onset of the aggravation. The examiner should provide the rationale for all opinions expressed. If the examiner is unable to provide any required opinion, he or she should explain why. 3. Undertake any other indicated development. 4. Finally, readjudicate the claims. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be provided a supplemental statement of the case and given the requisite opportunity to respond, before the case is returned to the Board. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs