Citation Nr: 1320417 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 09-06 920A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to basic eligibility for nonservice-connected pension. 2. Entitlement to service connection for a bilateral foot disability. 3. Entitlement to service connection for a bilateral knee disability. 4. Entitlement to service connection for degenerative joint disease of the left ankle. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD James D. Ridgway INTRODUCTION The Veteran served on active duty from March 1975 to March 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from three rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). An October 2007 decision denied a nonservice-connected pension. An April 2008 decision denied service connection for bilateral knee and foot disabilities. Finally, a September 2008 decision denied service connection for a left ankle disability. In July 2010, the Veteran testified before the Board at a hearing that was held at the RO. A transcript of that hearing is of record. The issue of entitlement to basic eligibility for nonservice-connected pension is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's claims for service connection for a bilateral knee disability and a left ankle disability are not supported by credible evidence of any in-service traumatic injury to these joints and are contradicted by other evidence of record. 2. The Veteran's claim for service connection for a bilateral foot disability is not supported by a current diagnosis, credible evidence of an in-service disease or injury, or persuasive evidence indicating that any current foot condition is related to service. CONCLUSIONS OF LAW 1. A bilateral knee disability was not incurred in or aggravated during active service, nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 2. Degenerative joint disease of the left ankle was not incurred in or aggravated during active service, nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 101, 1110, 1112, 1113, 1154, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 3. A bilateral foot disability was not incurred in or aggravated during active service, nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist A. Notice VA statisfied its notice duties under 38 U.S.C.A. § 5103A(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, 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). The RO provided a notice letter to the Veteran in February 2008 that provided the required notice for his knee and foot claims and another letter in July 2008 that provided the notice required for the ankle claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). No special circumstances required more particularized notice in this case. See Kent v. Nicholson, 20 Vet. App. 1, 9-10 (2006). B. Records VA has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of service and other relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO has associated the Veteran's service treatment records and VA treatment records with the claims file. The record does not indicate that additional relevant records exist that have not been obtained. Accordingly, this duty has been satisfied. C. Medical Opinions The duty to assist also includes providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In particular, VA is obliged to provide an examination when the record contains (1) competent evidence that the claimant has a current disability or signs and symptoms of a current disability, (2) the record indicates that the disability or signs and symptoms of disability may be associated with active service; and (3) the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. The types of evidence that 'indicate' that a current disability 'may be associated' with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation that do not rise to the level of supporting a grant of benefits on their own. Id. An examination or opinion specifically addressing the merits of the Veteran's claims for service connection is not required because the available credible evidence does not meet even the low threshold required. There are no medical opinions indicating that the veterans claimed conditions are related to service. In addition, as discussed below, the credible evidence describing the history of his symptoms does not indicate that his conditions manifested near in time to his service or in a manner that would indicate to a lay person that they may be associated with service. Nor is there any other credible lay or medical evidence that would indicate to a lay adjudicator that the claims may have merit such that further development would be justified. Therefore, the duty to obtain a medical opinion has not been triggered. See McLendon, 20 Vet. App. at 83. This case was previously remanded in December 2009 to schedule the Veteran for a Travel Board hearing. That hearing was held in July 2010, so there was substantial compliance with the prior remand. At the hearing, the undersigned explained to the Veteran the issues on appeal, as well as the elements required to substantiate those claims. The undersigned also participated in the thorough presentation by the Veteran's representative, and asked additional questions necessary to illuminate the matters on appeal, as related to the elements needed to establish the claims. In summary, no further notice or assistance to the Veteran is required for a fair adjudication of the Veteran's service connection claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Merits of the Service Connection Claims Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). See also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Cuevas v. Principi, 3 Vet. App. 542 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). As discussed below, the Board finds that the preponderance of the evidence is against the claims, and service connection for a bilateral foot disability, a bilateral knee condition, and degenerative joint disease of the ankle must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. Service connection for chronic conditons Service connection may be awarded for a chronic condition, including arthritis, that manifests to a compensable degree in service or within one year of service. 38 U.S.C.A. §§ 1101, 1112; Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.307(a)(3), (c), 3.309(a) (2012). As to all of his conditions, the Veteran's service treatment records do not indicate treatment for any relevant diseases or injuries. In addition, the Veteran's February 1976 discharge examination report indicates that the clinical evaluation of his feet and lower extremeties was normal and includes the Veteran's signature below the statement "I hereby certify that I have informed the medical officer of all my defects, illnesses and injuries known to me." As to his bilateral knee and left ankle conditions, the Veteran testified at his hearing that he had "chronic signs and symptoms" of these conditions since he left service, but offered no further detail to support his statement. When asked, he stated that he had problems immediately after service, but did not provide a clear answer when asked to describe the progression of his symptoms. To the extent that the Veteran's hearing testimony supports his claim, it is contradicted by much of the other evidence of record. The Veteran reported during an October 2007 examination that his bilateral knee problems started in the military but that he did not seek treatment at that time. However, the Veteran also reported in that examination that he injured his left ankle and knee during a football game in high school and was treated with a cast. The report indicates that the Veteran stated that he "did not have problems again until the [1980s]." Furthermore, the Veteran has a history of working in factory jobs and landscaping from his discharge in 1976 until 2001. This employment in a variety of physical labor fields, while certainly not dispositive, also tends to indicate that he did not have a knee or ankle disability that manifested to compensable degree in the years shortly after service. See FED. R. EVID. 401 (relevant evidence is that which has "any tendency to make a fact more or less probable than it would be without the evidence"). There is also an examination report from July 2007 that states the Veteran had some mild tenderness but was "without problems with knees." Accordingly, to the extent that the Veteran claims that he had significant left knee and ankle symptoms within a year of service are not credible as such claims are not supported by the record. Perhaps his memory is inaccurate or perhaps the intent of his statement (as indicated by his statements about the onset of symptoms) was that he believes that his conditions are related to service even though they did not manifest then. Regardless, the Board is not persuaded that he is a reliable historian as to the onset of his symptoms and finds that the weight of the evidence is against a finding that his bilateral knee and left ankle conditions manifested in service or for many years thereafter and, therefore, service connection for those condition cannot be granted on this basis. As to his claim for a trench foot condition, the Board finds that the Veteran's assertion in his November 2009 Substantive Appeal that he was treated for severe trench foot during an exercise in the Aleutian Islands is not credible. First, none of the examinations of his feet have diagnosed trench foot or reported any residuals of such a condition in service. In fact, the October 2007 examination reports that the Veteran has not had a recurrent fungal infection and a May 2007 examination of his feet indicated that the only significant finding was "hallux valgus" (a bunion). Second, as noted above, his separation examination does not reflect any problems at that time with his feet. Third, although the Veteran testified that he avoided making medical complaints in service, this belated report of treatment for trench foot so severe that he was unable to walk is inconsistent with prior statements indicating that he did not seek treatment in service for any condition. It is improbable that there would be no service treatment record of a foot condition so severe that Veteran was unable to walk and had to be evacuated for treatment. See Kahana v. Shinseki, 24 Vet. App. 428 (2011) (Lance, J., concurring) (the absence of a notation in a record may be negative evidence if the fact at issue normally would have been recorded); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (citing FED. R. EVID. 803 (7)). Fourth, the Veteran's unreliable statements regarding the origins of his left knee and ankle conditions undermine his credibility as to other unsubstantiated statements in support of his claims. Fifth, as above, the Veteran's history of working in factory jobs and landscaping from his discharge in 1976 until 2001 tends to contradict any conclusion that he had symptoms of this disability severe enough to have manifest in the year immediately after service (again, noting that the service treatment records contain no indication of a foot disability). Accordingly, the Board finds that the Veteran is not a reliable historian as to the origins of his foot condition. Therefore, the weight of the evidence is against a finding that the Veteran had a foot condition in service, or manifest immediately following service, and the claim for service connection must be denied. B. Direct Service Connection Next, direct service connection must be considered. See Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994) (a claim may still be proven by direct evidence when a presumptive service-connection provision is found not to apply). Pursuant to 38 C.F.R. § 3.303(d) (2012), "[s]ervice connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service." See Cosman v. Principi, 3 Vet.App. 503, 505 (1992) ("[E]ven though a veteran may not have had a particular condition diagnosed in service, or for many years afterwards, service connection can still be established."). To make this determination, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). As to the Veteran's knee and ankle conditions, he appears to have degenerative joint disease based upon March 2009 and February 2008 treatment notes as well as a May 2007 examination. However, there is no credible evidence that any of these conditions are related to service. No medical provider has suggested that any of these conditions are related to service. As noted above, the Veteran is not a reliable historian as to the medical treatment he claims that he experienced in the military. It is within the realm of common knowledge that aging, trauma, and physical labor may all lead to degenerative joint disease. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J., concurring) ("The question of whether a particular medical issue is beyond the competence of a layperson-including both claimants and Board members-must be determined on a case-by-case basis.") In this case, the evidence of significant in-service trauma is not credible and the Veteran has other known risk factors for developing degenerative joint disease (DJD). Therefore, the Board finds that it is less likely than not that his conditions are related to service. As to the Veteran's foot claim, he does have a diagnosis of arthritis of his feet and has asserted that it has gotten worse over time. The Board has previously found that the Veteran is not a reliable historian as to his alleged in-service foot treatment. Nonetheless, even assuming the Veteran did from a foot disability in service (a point that the Board is not conceding) the evidence does not demonstrate any relationship between his current foot condition and service. The fact that arthritis is a degenerative condition that tends to increase in severity is within the realm of knowledge of lay witnesses and adjudicators. Kahana, 24 Vet. App. at 438. There is no indication in the record that any such connection exists between any current foot disorder and an incident of military service. Thus, construing the Veteran's claim broadly as one for a bilateral disability of the feet, see Clemons v. Shinseki, 23 Vet App 1 (2009), there is no indication in the credible evidence that his foot disabilities may be related to service under any theory. ORDER Service connection is denied for a bilateral disability of the feet, a bilateral knee disability, and a left ankle disability. REMAND While further delay is regrettable, the Board finds that further development is required prior to adjudicating the Veteran's claims. See 38 C.F.R. § 19.9 (2012). In this regard, an additional examination is warranted. Nonservice-connected pension benefits are payable to a Veteran who served for ninety (90) days or more during a period of war, which is not in dispute here, and who was permanently and totally disabled due to nonservice-connected disabilities that are not the result of his or her own willful misconduct. 38 U.S.C.A. § 1521 (West 2006); see also Dilles v. Brown, 5 Vet. App. 88, 89-90 (1993). If a Veteran's combined disability is less than 100 percent, he or she must be unemployable by reason of disability. 38 C.F.R. §§ 3.340, 3.342 and Part 4 (2012), see also Brown v. Derwinski, 2 Vet. App. 444, 446 (1992). To be eligible for VA pension, the evidence of record must demonstrate that the Veteran is permanently and totally disabled from nonservice-connected disabilities that are not the result of his own willful misconduct. As noted by the RO, there is substantial evidence that the Veteran's current unemployment is due, at least in part, to his use of alcohol and illegal drugs. However, the Veteran may still be awared a nonservice-connected pension if it were shown that his conditions unrelated to willful misconduct were severe enough to make him eligible by themselves. For the purposes of pension benefits, the person shall be considered to be permanently and totally disabled if such individual is unemployable as a result of disability reasonably certain to continue throughout the life of the disabled person, or is suffering from (1) any disability which is sufficient to render it impossible for the average person to obtain a substantially gainful occupation, but only if it is reasonably certain that such disability will continue throughout the life of the disabled person; or (2) any disease or disorder determined by the VA Secretary to be of such nature or extent as to justify a determination that persons suffering there from are permanently and totally disabled. See 38 U.S.C.A. § 1502 (a)(4); 38 C.F.R. §§ 3.340(b), 4.15 (2012). The Veteran last underwent an examination to determine the severtity of his physical disabilities in 2007. At his hearing in 2010, he asserted that his conditions had worsened since that examaination. Although the Veteran has made a number of assertions of doubtful accuracy as detailed above, each statement by the Veteran must be considered separately. The Veteran's statements about his current condition are less susceptible to the failings of human memory and are largely verifiable. Therefore, the Board will accept his assertions as to his currently observable symptomotology absent direct proof contradicting them. Accordingly, a new examination to assess his current condition is required. Palczewski v. Nicholson, 21 Vet. App. 174 (2007). Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding treatment records indicated by the record, particularly from the VA Medical Center in Shreveport, Louisiana, from July 2009 to the present, and associate those records with the claims file or Virtual VA file (as appropriate). If no records are available, the claims folder must indicate this fact. 2. After any records received have been associated with the claims file, schedule the Veteran for a VA examination(s) to determine the nature, extent and severity of all disabilities found to be present and whether the Veteran is unemployable. The examiner must describe the impact of the Veteran's disabilities on his ability to perform the tasks required for him to engage in the types of employment that he would be suitable for by virtue of his education and experiences. Any diagnosed disorder must be evaluated for the specific purpose of assessing it's relative degree of impairment, in light of the Veteran's medical and vocational history. Any opinion obtained as to the Veteran's employability should clearly address whether his remaining conditions render him unemployable after excluding those disabilities related to his willful misconduct. 3. After completion of the foregoing, readjudicate the appeal. If the benefit sought on appeal remains denied, return the appeal to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims 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). ______________________________________________ LAURA H. ESKENAZI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs