Citation Nr: 1322517 Decision Date: 07/15/13 Archive Date: 07/24/13 DOCKET NO. 09-16 184 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a disability manifested by bilateral leg numbness to include as secondary to service-connected disability. 2. Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran had active military service from May 1986 to January 2008. This matter is before the Board of Veterans' Appeals (Board) following a Board Remand in November 2012. This matter was originally on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Waco, Texas. The claim came to the Board from the Roanoke, Virginia, RO. The issue of entitlement to service connection for a right knee disability 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. FINDING OF FACT The competent medical evidence shows that the Veteran is not currently diagnosed with a chronic disability manifested by bilateral leg numbness. CONCLUSION OF LAW The Veteran does not have a chronic disability manifested by bilateral leg numbness that was incurred in or aggravated by active service or the result of or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Preliminary Matter Pursuant to the Board's November 2012 Remand, the Appeals Management Center (AMC) requested that the Veteran identify all health care providers who had treated him for his bilateral leg numbness since his retirement in 2008, scheduled the Veteran for a VA neurological examination to determine the existence and etiology of any current neurological disorder of the lower extremities, readjudicated the Veteran's claim under provision of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) as discussed in more detail below, and issued a Supplemental Statement of the Case. Based on the foregoing actions, the Board finds that there has been compliance with the Board's November 2012 Remand as to this issue. Stegall v. West, 11 Vet. App. 268 (1998). Veterans Claims Assistance Act of 2000 As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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. With respect to service connection claims, the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has met all statutory and regulatory notice and duty to assist provisions. Notice provided prior to discharge and a letter November 2012 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 6 Vet. App. at 183, Dingess, 19 Vet. App. at 473. Together, the notices informed the appellant of what evidence was required to substantiate the claim and of the appellant's and VA's respective duties for obtaining evidence, as well as how VA determines disability ratings and effective dates. Ideally, the notice required by 38 U.S.C.A. § 5103(a) should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). Although that was not done in this case, the Board finds that this error was not prejudicial to the appellant because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the appellant been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the AOJ also readjudicated the case after the notice was provided. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the AOJ's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the AOJ). For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. The Veteran's service treatment records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran has identified no post-service treatment records that he wished for VA to obtain on his behalf. There is no indication in the record that any additional evidence, relevant to the issues decided herein, is available and not part of the claims file. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The Veteran was accorded a VA examination in January 2013. 38 C.F.R. § 3.159(c)(4). The January 2013 VA examiner addressed the existence and etiology of any current neurological disorder of the Veteran's lower extremities in conjunction with a review of the claims file and physical examination of and interview with the Veteran. The January 2013 VA examination report is thorough; thus this examination is adequate upon which to base a decision. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) Service Connection The Veteran seeks service connection for a disability manifested by bilateral leg numbness. Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). To prevail on the issue of service connection there must be evidence of a current disability, in-service incurrence or aggravation of a disease or injury; and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). A disability may be found to be service connected on a secondary basis if the claimant demonstrates that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); 38 C.F.R. § 3.310 (2012). On a VA Form 21-4138, Statement in Support of Claim, received in May 2008, the Veteran stated that there is evidence of him complaints of pain radiating to his low back to his legs. On a VA 9, Appeal to the Board of Veterans' Appeals, received in May 2009, the Veteran stated that he reported pain and numbness in his legs while in service and that the years of rigorous Army physical training caused him to develop pain and numbness in his legs. The Veteran underwent VA neurological examination in January 2013 at which time he gave a history of numbness in both legs since 2002 while in California. The Veteran stated that the numbness was mostly in the morning from the knees down, the same on both sides and felt like both legs were "swollen" with tingling numbness and no weakness. The Veteran reported that the numbness lasted all day to a few weeks/months and that at times it was associated with low back pain with 4/10 severity. The Veteran stated that he was a doctor who told him it was a pinched nerve. The Veteran reported that he noted that he muscle twitching in his legs while in bed without his legs moving which lasted an hour and that since 2007, twice a year he saw the muscles in both arms twitching without arm moving for a few minutes. EMG was normal with no evidence of denervation potentials, normal insertional activity, and recruitment. After physical examination, the examiner noted that the Veteran did not have a peripheral nerve condition or neuropathy. Assessment was normal study, no evidence of peripheral neuropathy affecting the lower or upper extremities, and no evidence of a lumbar radiculopathy affecting the lower extremities. The Board acknowledges the Veteran's assertions that he has experienced bilateral leg numbness. However, the alleged disorder, bilateral leg numbness, is actually just reported symptomatology. Without a recognized injury or disease entity, VA is not authorized to award compensation for reported symptomatology. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a) (Service connection is awarded for "a particular injury or disease resulting in disability..."); see also Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999); aff'd in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356, 1363 (Fed. Cir. 2001) (The CAVC held that pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted.) In the absence of competent evidence which suggests that the Veteran's bilateral leg numbness constitutes a chronic disability, the Board has no basis on which to consider the Veteran's bilateral leg numbness as more than a medical finding or symptom. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, diagnosis of a disorder manifested by bilateral leg numbness falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer)." Absent a showing of a current chronic disability which could be related to service or to service-connected disability, entitlement to service connection for a disability manifested by bilateral leg numbness must be denied. As the preponderance of the evidence is against the above claim, the benefit of the doubt doctrine is not applicable. 38 U.S.C.A. 5107(b) (2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a disability manifested by bilateral leg numbness to include as secondary to service-connected disability is denied. REMAND The Veteran seeks service connection for a right knee disability. The Veteran's service treatment records indicate that he sought treatment for right knee pain in August 1986. The Veteran reported a three-day history of right knee pain with no history of trauma. The Veteran stated that it felt like two bones were rubbing together. After physical examination, the provider assessed probable early patellofemoral syndrome. The Veteran returned less than two weeks later with complaint of pain in his right knee. After physical examination, the Veteran was diagnosed with having strain of the right lateral cruciate ligament. In May 1991, the Veteran presented with complaints of a right knee injury while sliding into third base while playing softball. After physical examination and x-rays, the Veteran was diagnosed as having possible sprain to knee joint. On Reports of Medical History completed by the Veteran in January 1992, December 1996, and May 2001, he denied ever having bone, joint, or other deformity or "Trick" or locked knee. On Reports of Medical Examination in January 1992, December 1996, and May 2001, the Veteran's lower extremities were evaluated as normal. On Report of Medical History completed by the Veteran in October 2007, the Veteran noted swollen or painful joints and knee trouble. The examiner noted, "Knees (both) sometimes get swollen and painful. No trauma to either. Usually prescribed Motrin and after no longer than a week swelling and pain goes away." On Report of Medical Examination in October 2007, lower extremities were evaluated as normal. As noted above, the Veteran underwent VA examination in January 2013. Unfortunately, the examination report's findings are inconsistent. The examiner noted that the Veteran had a diagnosis of right knee Osgood Schlatter and that the date of diagnosis was 1986. He opined, however, "with normal knee exam and normal xr of knee it is felt his knee problem mostly knee sprain and it is felt current knee problem is LESS LIKELY AS NOT related to knee problem while in service." Within the report there seems to be evidence of bony impairment of the knee which might be consistent with Osgood Schlatter, but that is not clear. Other significant knee impairment does not seem to be shown, but again, in view of the findings contained in the report and the conclusion cited, further clarification is indicated. As such, the Board finds that the Veteran should be scheduled for an additional VA examination to determine whether it is at least as likely as not that any current knee disability is in any way related to his active service or service-connected disability. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to indicate if he has received any VA or non-VA medical treatment for his right knee that is not evidenced by the current record. If so, the Veteran should be provided with the necessary authorizations for the release of any treatment records not currently on file. These records should then be obtained and associated with the claims folder. The Veteran should be advised that he may also submit any evidence or further argument relative to the claim at issue. 2. The Veteran should be afforded the appropriate VA examination to determine the etiology of any current right knee disability. The claims file must be made available to and reviewed by the examiner in conjunction with the examination, and the examination report should reflect that such a review was made. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. The examiner should provide an opinion as to whether it is at least as likely as not that any current right knee disability is in any way related to the symptoms documented during the Veteran's active duty service or in any way related to service-connected disability. Specifically it should be determined whether appellant currently has Osgood Schlatter's or other bony involvement of the right knee, and if so, whether current findings are in any way related to the in-service complaints and findings. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinion provided. 3. The case should be reviewed on the basis of the additional evidence. If the benefit sought is not granted in full, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Board takes this opportunity to advise the appellant that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The appellant is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. 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). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs