Citation Nr: 1322602 Decision Date: 07/16/13 Archive Date: 07/24/13 DOCKET NO. 13-03 454 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for any left leg disability, to include as secondary to a left ankle disability. 2. Entitlement to service connection for any right leg disability, to include as secondary to a left ankle disability. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD L. Zobrist, Associate Counsel INTRODUCTION The Veteran had active service from September 1955 to September 1957. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which denied the benefits sought on appeal. Jurisdiction over the case was subsequently transferred to the RO in New York, New York. The Veteran testified before the undersigned Acting Veterans Law Judge at a Travel Board hearing in May 2013. A transcript from that hearing has been associated with the claims file. The Board notes that the Veteran has submitted additional pertinent evidence to the Board and has waived his right to have the RO initially consider it. 38 C.F.R. § 20.1304(c). 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. The Veteran does not have a left leg disability that began in service or has been shown to be causally or etiologically related to service or to a service-connected disability; left knee arthritis was not manifested within the first post-service year. 2. The Veteran does not have a right leg disability that began in service or has been shown to be causally or etiologically related to service or to a service-connected disability; right knee arthritis was not manifested within the first post-service year. CONCLUSIONS OF LAW 1. The criteria for service connection for a left leg disability, to include as secondary to a left ankle disability, have not been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2012). 2. The criteria for service connection for a right leg disability, to include as secondary to a left ankle disability, have not been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Duty to Notify Upon receipt of a complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The 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 v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant with proper notice by letter dated in August 2009. This notice complied with the specificity requirements of Dingess, identifying the five elements of a service connection claim, and Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. The August 2009 letter also provided notice with respect to secondary service connection. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). 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); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist Furthermore, the Board finds that there has been compliance with the assistance provisions set forth in the law and regulations. VA has obtained service treatment records (STRs) and VA medical records. In September 2009, the Veteran was afforded a VA joints examination and, in April 2012, he was afforded a VA knee and lower leg examination. All known and available records have been obtained and associated with the Veteran's claims file, and the Veteran and his representative have not contended otherwise. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide this matter, and that no further development of the evidentiary record is necessary. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Analysis Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Certain chronic disabilities are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1133; 38 C.F.R. §§ 3.307, 3.309. In this case, arthritis, is a "chronic disease" listed under 38 C.F.R. § 3.309(a). Therefore, the presumptive provisions for "chronic" symptoms in service and "continuous" symptoms after service of 38 C.F.R. § 3.303(b) apply to the claim for service connection for arthritis. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also 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. 38 C.F.R. § 3.303(d). The law provides that secondary service connection shall be awarded when a disability is "proximately due to or the result of a service-connected disease or injury." 38 C.F.R. § 3.310(a). See Libertine v. Brown, 9 Vet. App. 521, 522 (1996); Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (en banc). Establishing service connection on a secondary basis therefore requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In rendering a decision on appeal, 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. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno, supra. A veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived, that is, experienced, were directly through the senses. 38 C.F.R. § 3.159 (competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person); Layno, 6 Vet. App. at 469-71 (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness, but lay testimony is not competent to prove a particular injury or illness); see Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Also, a veteran as a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau). VA must consider the competency of the lay evidence and cannot outright reject such evidence on the basis that such evidence can never establish a medical diagnosis or nexus; however, this does not mean that lay evidence is necessarily always sufficient to identify a medical diagnosis, but rather only that it is sufficient in those cases where the lay person is competent and does not otherwise require specialized medical training and expertise to do so, i.e., the Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence. See Davidson, 581 F. 3d at 1316 (recognizing that, under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when a lay person is competent to identify the medical condition; he is reporting a contemporaneous medical diagnosis; or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). The Federal Circuit Court has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The Board therefore may consider the absence of any indication of a relevant medical complaint until relatively long after service as one factor, just not the only or sole factor, in determining whether a disease or an injury in service resulted in chronic or persistent residual disability. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). See, too, Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology since service and had failed to account for the lengthy time period after service for which there was no clinical documentation of the claimed disorder). The Board notes that it has reviewed all of the evidence in the Veteran's claims file and in "Virtual VA" (VA's electronic data storage system), with an emphasis on the evidence relevant to the matters on appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. The Board finds that, in this case, service connection is not warranted with regard to either a right or left leg disability because the preponderance of the evidence is against finding that any such disability manifested during service, or is otherwise causally linked to service, to include as secondary to a service-connected left ankle disability. Further service connection on a presumptive basis is not warranted as the preponderance of the evidence is against a finding that arthritis manifested to a compensable degree within one year of service separation. The Veteran fractured his left ankle in January 1956, while on active duty. His STRs are negative for any other leg injury, and he does not aver that any additional foot or leg injury was incurred in service. The Veteran was awarded entitlement to service connection for his in-service left ankle injury, effective September 14, 1957, the day after discharge from active service. In June 2009, the Veteran filed a claim for, inter alia, entitlement to service connection for left and right leg disabilities, claimed as secondary to his service-connected left ankle disability. In support of his claim, the Veteran included two letters from his treating physician, Dr. J. J. B. In a letter dated in July 2009, Dr. J. J. B. stated that the Veteran "has progressive pain and leg swelling in the left leg. He has difficulty walking and requires a cane for worsening ability to ambulate." While this letter discusses symptoms present in the Veteran's left leg, there is no diagnosis provided and no indication of nexus to service or to a service-connected disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004) (entitlement to service connection requires a showing of a current disability, in-service incurrence or aggravation of a disease or injury, and a nexus between the two). Thus, the Board finds that this letter is of limited probative value. In a letter dated in September 2009, Dr. J. J. B. stated that he was treating the Veteran for diabetes, coronary artery disease, hypertension, B-12 deficiency, arthritis, and hypercholesterolemia. Dr. J. J. B. noted the Veteran's assertion that "his left leg swells and affects the use of his right leg[,] which causes him to need a cane for assistance with ambulation." As with the previous letter, this letter details the Veteran's symptoms but does not provide a diagnosis for either a left or right leg disability or suggest a nexus to service or a service-connected disability. Although Dr. J. J. B. stated that the Veteran's left leg was already service-connected, that statement was in error. Thus, to the extent that Dr. J. J. B. was suggesting a nexus between the right and left leg symptoms, the Board notes that he did not provide a medical opinion relating any of the described symptoms to the service-connected left ankle disability. Furthermore, Dr. J. J. B. did not offer his own clinical assessment of the Veteran's alleged leg disabilities but, instead, repeated the Veteran's lay assertions of nexus. While the Veteran is competent to report symptoms that he experiences through his senses and is, thus, competent to report pain and swelling, he has not demonstrated that he has the training and expertise required to diagnose his leg disabilities or to opine as to their likely etiology. See Jandreau, Barr, and Layno, all supra. Therefore, as the September 2009 letter addresses neither diagnoses of left or right leg disabilities nor competent medical evidence supporting a nexus to service or a service-connected disability, the Board finds that it is of limited probative value. The Board notes that the Veteran submitted an additional letter from Dr. J. J. B. dated in May 2013. However, the content of this letter is identical to that in the September 2009 letter, and the Board will not discuss it further. On VA examination in September 2009, the VA joints examiner reviewed the Veteran's claims file, summarized the nature of the in-service left ankle injury, and summarized the Veteran's medical history, noting a 1992 triple bypass for which veins were harvested from the Veteran's left leg. The examiner noted that the Veteran complained of left ankle pain that "radiates down towards the toes and goes up the calf," including "cramping in the left calf," and that he did not assert any "focal or specific other aches and pains involving the right ankle, the knees, hips, etc." Although there were no specific complaints, the examiner nonetheless examined the Veteran's knees and found normal range of motion and strength. There was no instability and "no diffuse tenderness to palpation over any of the bony structures in the lower leg." Mild diffuse calf tenderness, without swelling, was noted. An X-ray of the left knee showed "degenerative changes most prominently involving the patellofemoral and median compartment" but showed no acute osseous abnormalities. The examiner diagnosed age-related degenerative changes in the knees, but concluded that his "examination of the lower extremities does not reveal any specific abnormalities or any pathology that would be secondarily service connected to the left ankle fracture." The examiner noted again the Veteran's stated symptoms, but opined that, given the Veteran's prior diagnoses of diabetes, high blood pressure, and heart disease, the etiology of the Veteran's leg symptoms "could be multifactorial [and] attributable to the usual aging problems." The same examiner conducted a VA knee and lower leg examination in April 2012. She noted that she again reviewed the Veteran's claims file, as well as her September 2009 examination report. She again summarized the Veteran's medical history and noted his current symptoms. She noted the Veteran's complaints of flare-ups that limit his functionality and also specifically noted that the Veteran reported that his activities are limited by his left ankle pain and not his knee pain. Testing revealed normal range of motion (ROM) in the right knee with no objective evidence of painful motion or reduction in ROM after repetition, muscle strength of 4/5, normal joint stability, and no tenderness or pain to palpation. For the left knee, testing revealed flexion limited to 125 degrees, weakened movement, pain on movement, and swelling, but no additional limitation after repetition. There was mild medial joint line tenderness, muscle strength of 4/5, and normal joint stability. Mild crepitus was noted in both knees, although slightly more on the left. The examiner diagnosed the Veteran with mild bilateral osteoarthritis, which she opined was mostly likely due to aging, as current X-rays showed similar and symmetric osteoarthritis in both knees. Although the left knee was slightly worse than the right, the examiner explained that it was not sufficiently asymmetric such that it would indicate excessive stress placed on that knee, nor was the Veteran's osteoarthritis the result of joint trauma. Taken together, the Board finds that the September 2009 and April 2012 VA examination reports are highly probative evidence prepared by a competent expert professional and informed by reviews of the claims file and examinations of the Veteran. See Owens v. Brown, 7 Vet. App. 429, 433 (1995) (the Board is free to favor medical opinion over another if it provides an adequately articulated rationale for its decision). The VA examinations contain competent medical opinions addressing the pertinent etiological questions with clear conclusions, analysis, and supported rationales. The examiner diagnosed mild bilateral osteoarthritis, based on radiological findings, noted no other disability affecting the Veteran's legs, explained why the diagnosed knee disabilities were not related to service, and opined as to other factors more likely involved in the etiology of the Veteran's right and left leg symptomatology, including age, diabetes, and vein harvesting from the left leg. The Board finds that this is probative evidence weighing against the Veteran's claims. The Board has also considered the Veteran's VA medical records. Clinic notes from October 2010 note the Veteran's complaints of increased left leg pain, but note no edema, erythema, ecchymosis, warmth, pain on palpation, or other signs of distress. Although the clinic reported a medical history of posttraumatic left knee arthritis, the Board notes that such history was based on the Veteran's statements, not the result of clinical observation, and thus does not contradict the VA examiner's findings, which were supported by diagnostic testing and clinical evaluation. Furthermore, as noted above, the Veteran is not competent to opine as to the specific diagnosis and etiology of his left knee disability. Finally, the Veteran was recorded as stating that he wanted to follow up on "worsening discomfort from 50 years ago" in his left leg. The Veteran is already service connected for his left ankle, based on an in-service fracture, and, as mentioned above, has not otherwise shown that he is competent to opine as to the diagnosis and etiology of any additional left leg disorder. Thus, the Board finds that the VA medical records are of limited probative value as they neither provide competent medical support for the Veteran's claims nor contradict the VA examiner's clinical findings. The transcript of the May 2013 Travel Board hearing appears to indicate that the Veteran is seeking service connection for a left leg disability manifested by swelling that worsens in winter. The record is negative for any diagnosis of a left leg condition other than his left ankle disability and his mild left knee osteoarthritis. Additionally, the VA examiner noted the Veteran's complaints of "other leg conditions," but did not determine that any other diagnosis was warranted. Thus, the Board finds that the competent medical evidence of record is against a finding that the Veteran has any other diagnosed leg disabilities other than those already discussed; consequently, there are no additional leg disabilities for which service connection should be considered. See Shedden, supra (requiring a current disability for a grant of entitlement to service connection); see also Robinson v. Peake, 21 Vet. App. 545, 552 (2009) (Board required to consider all issues raised either by the claimant or reasonably by the evidence of record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). Likewise, the Board has considered the Veteran's lay statements throughout the record that his left leg symptoms are the result of his left ankle disability and that his right leg symptoms are the result of his right leg disability. As previously noted, the Veteran, as a lay person without the necessary training and experience, is neither competent to discuss the complex medical questions of his precise leg disabilities nor to opine as to their origins. See Jandreau, Barr, and Layno, all supra. Orthopedic disorders like arthritis are not the type of "simple" conditions that are readily amenable to probative lay comment regarding its diagnosis and etiology. See Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger the Secretary's duty to seek a medical opinion on the issue). With respect to continuity of symptomatology, the Board highlights that the Veteran does not claim a continuity of symptomatology of arthritis and the Veteran's service treatment records are negative for evidence of arthritis or a leg condition other than his service-connected left ankle. Accordingly, service connection is not warranted on the basis of continuity of symptomatology. Furthermore, there is nothing showing that knee arthritis was compensably disabling within the first year following the appellant's separation from active duty. In addition, as shown above, the diagnosis of arthritis of the knees was rendered many years after the Veteran's discharge from service, and the medical evidence indicates that the arthritis is most likely due to aging. For these reasons service connection for arthritis of either knee is also denied on a presumptive basis. See 38 C.F.R. §§ 3.307, 3.309. For all the foregoing reasons, the Board finds that the preponderance of the evidence is against the claims of service connection for left and right leg disabilities. Therefore, the appeal in these matters must be denied. ORDER Entitlement to service connection for a left leg disability is denied. Entitlement to service connection for a right leg disability is denied. ____________________________________________ M. C. Graham Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs