Citation Nr: 1323202 Decision Date: 07/19/13 Archive Date: 07/24/13 DOCKET NO. 08-07 324 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a left foot disability other than peripheral neuropathy of the left lower extremity. 2. Entitlement to service connection for a low back disability, to include as secondary to service-connected degenerative joint disease of the cervical spine. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran served on active duty from June 1965 to March 1967, including service in the Republic of Vietnam. He received the Purple Heart Medal and Combat Infantryman Badge. These matters initially came before the Board of Veterans' Appeals (Board) from a February 2006 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In December 2010, the Board remanded claims of entitlement to service connection for a right knee disability, a left foot disability, a bilateral shoulder disability, a right arm disability, a bilateral hand disability, and a lower back disability for further development. In May 2012, the Board denied service connection for a bilateral hand disability, a right arm disability, a bilateral shoulder disability, and a right knee disability. The issues of entitlement to service connection for left foot and low back disabilities were remanded for additional development and adjudication. In the May 2012 decision, the Board also found that the issues of whether new and material evidence had been received to reopen a claim for service connection for gastroesophageal reflux disease (GERD), entitlement to service connection for headache, left arm, and sleep disabilities, and entitlement to an increased rating for Type II diabetes mellitus had been raised by the record, but had not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board found that it did not have jurisdiction over them, and they were referred to the AOJ for appropriate action. In February 2013, this case was remanded for additional development. The Board notes that, in addition to the Veteran's claims file, the Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file as well as the Veteran's claims file and will proceed with review of the claims based upon all relevant evidence. 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. A left foot disability, to include degenerative arthritis, has not been shown to have had its onset in service, within one year of service, nor is such disability otherwise a result of disease or injury in active military service. 2. A low back disability, to include degenerative arthritis, has not been shown to have had its onset in service, within one year of service, nor is such disability otherwise a result of disease or injury in active military service or a service-connected disability. CONCLUSION OF LAW 1. A left foot disability, to include degenerative arthritis, was not incurred in or aggravated by the Veteran's active military service, nor is such disability presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1112(a), 1154, (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. A low back disability, to include degenerative arthritis, was not incurred in or aggravated by the Veteran's active military service, nor is such disability presumed to have been incurred in service or caused by a service-connected disability. 38 U.S.C.A. §§ 1110, 1112(a), 1154; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VCAA. As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent letters dated in February and April 2005 that provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal. The Veteran was not informed, with regard to these claims, as to how VA determines disability ratings and effective dates. However, as the instant decision denies service connection, no disability rating or effective date will be assigned. Accordingly, any absence of Dingess notice is not prejudicial. A June 2006 letter did provide the Veteran with this notice in connection with other claims. That notice was worded in a general manner that should have put the Veteran on notice that the information regarding ratings and effective dates was applicable to all claims. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All necessary development has been accomplished in this case, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. The June 2012 examination reports included definitive opinions that were based on review of the record, including the Veteran's reports, and were supported by adequate reasons. Hence, the opinions are adequate. Nieves-Rodriguez v . Peake, 22 Vet App 295 (2008). Moreover, his statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. The Board's remands sought to obtain VA and private treatment records and afford the Veteran adequate examinations. The VA treatment records were obtained. In February 2013 the agency of original jurisdiction asked the Veteran to provide a release for VA to obtain records of reported private treatment or provide the records himself. The Veteran did not respond. VA has no duty to obtain private treatment records unless the Veteran provides needed releases. 38 C.F.R. § 3.159(c)(1)(ii) (2012). As noted, adequate medical opinions were ultimately obtained For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. 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. Analysis Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. Service connection may also be granted for listed chronic diseases, such as arthritis, when the disease is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Under § 3.303(b), an alternative method of establishing the second and/or third elements is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a)). Continuity of symptomatology may establish service connection where a chronic disease under 38 C.F.R. § 3.309(a) shown as such in service or within the presumptive period, manifests at a later date. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required where the condition noted during service or the presumptive period is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. In this regard, the Board notes that lay persons may provide evidence of diagnosis and nexus under 38 U.S.C.A. § 1154(a). See Davidson v. Shinseki. In addition, service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). 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) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). For injuries alleged to have been incurred in combat, 38 U.S.C.A. § 1154(b) provides a relaxed evidentiary standard of proof regarding events that occurred during combat. Collette v. Brown, 82 F.3d 389 (1996). Specifically, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service even though there is no official record of such incurrence or aggravation. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). The reduced evidentiary burden applies to the question of service incurrence, and not to the question of either the existence of a current disability or nexus between that disability and service, both of which generally require competent medical evidence. Libertine v. Brown, 9 Vet. App. 521 (1996). The presumption applies not only to the combat injury, but to the in-service consequences of the injury. Reeves v. Shinseki, 682 F.3d 988 (Fed. Cir. 2012). Additionally, the Veteran has contended that his disabilities may be related Agent Orange in service. In this regard, the Board notes that certain disorders associated with herbicide agent (Agent Orange) exposure in service are presumed to be service connected if they are manifested to a compensable degree within a specified time period. See 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309. Because the Veteran served in Vietnam during the Vietnam era, he is presumed to have been exposed to herbicides, including Agent Orange. 38 U.S.C.A. § 1116(f). If a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain listed diseases shall be service-connected if the requirements of 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. None of the listed diseases are claimed or shown in this case. 38 C.F.R. § 3.309(e). The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); see also Notice, 61 Fed. Reg. 41, 442-49 (1996). Notwithstanding the foregoing presumption provisions, the U.S. Court of Appeals for the Federal Circuit (Circuit Court) has determined that a claimant is not precluded from establishing service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). It is the Board's responsibility to evaluate the entire record on appeal. 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, reasonable doubt will be resolved in each such issue in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. An appellant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the evidence must preponderate against the claim. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Alemany v. Brown, 9 Vet. App. 518 (1996). Here, an October 2004 VA X-ray report showed degenerative joint disease of the left great toe and, in an August 2006 letter, Jerome A. Ecker, M.D. indicated that the Veteran had been diagnosed as having osteoarthritis of the lumbar spine. Service connection has been established for peripheral neuropathy of both lower extremities and degenerative joint disease (or arthritis) of the left knee and cervical spine. Dr. Ecker's August 2006 letter includes an opinion that the Veteran's osteoarthritis of the lower back was likely associated with his military service given the description of his job duties while in service. The Veteran has reported on several occasions that while serving in Vietnam, he had to remain in a stooped position while shooting weapons, jumped from helicopters with heavy equipment on his back, crawl through tunnels on his stomach, hands, and knees, and waded through swamp water. The Veteran's DD 214 indicates that his military occupational specialty was a light weapons infantryman and that he received basic airborne training. His reports of stresses occurring in combat are presumed accurate. 38 U.S.C.A. § 1154(b) (West 2002). The Veteran was provided a VA examination in March 2011 in connection with his claims. The examiner reported that the Veteran had been diagnosed as having degenerative joint disease of the first metaphalangeal joint of the left foot. Also, the Veteran reported that he experienced symptoms of a low back disability, such as pain. After examination, the physician who conducted the examination opined that it could not be determined without resorting to mere speculation whether the Veteran's current left foot disability, diagnosed as degenerative joint disease of the metatarsal phalangeal joint, had its onset in service. No further explanation or reasoning for this opinion was provided. The examiner further opined that the Veteran's activities in service, including jumping as a paratrooper, certainly could have contributed to the development of degenerative joint disease, but that it was not possible to ascertain the degree that such activities were responsible for the current disability. Also, the Veteran was noted to be employed with the post office and this likely contributed to the disability, as such employment involved prolonged standing and walking. With regard to the low back, the examiner reported that the Veteran had intervertebral disc disease (IVDS). In this regard, the Board notes that service connection is already in effect for degenerative joint disease of the cervical spine. The examiner, however, did not specify whether the finding of IVDS pertained to the already service-connected disability or a separate low back disability. A separate low back disability was not identified. The examiner concluded that the Veteran did not have any symptoms suggestive of lumbar radiculopathy. Rather, his neck pain radiated down the spine to the pelvis and across both sides, without radiation to the legs or any other symptoms suggestive of lumbar radiculopathy. In other words, all symptoms started in the neck and radiated downward. Also, there was no demonstrable tenderness, muscle spasm, limitation of motion, or increased muscle tone evident on examination. The Veteran was provided an additional VA examination dated in June 2012 in connection with his claims. The examiner indicated that the Veteran's claims file had been reviewed in connection with the examination and report. The Veteran was diagnosed with degenerative arthritis of the lumbosacral spine and the left foot. The Veteran reported that he started having low back pain for the past 15 years with gradual onset. There was no known injury to his low back. With respect to his left foot, the Veteran stated that he had pain in his left foot, specifically his left great toe, for the past 12 years with gradual onset. There was no known injury to the left foot. After examination, the examiner stated that the Veteran's current degenerative arthritis of the left great toe did not have its onset in service or in the year immediately following service, is not related to his reported in-service duties, is not related to herbicide exposure in service, and is not the result of a disease or injury in service. In support of this conclusion, the examiner stated that the Veteran reported no injury to his left foot while in military service, there were no treatment records of any injury or complaints of regarding his left foot, and in a December 1966 medical report in connection with residuals of viral encephalitis the examination of his feet was normal. In addition, the Veteran reported that he started having pain in his left foot 12 years ago, about 33 years after military service. The examiner also noted that there was no established medical causal relationship between herbicide exposure and degenerative arthritis of the great toe. With respect to the Veteran's diagnosed degenerative arthritis of the lumbosacral spine, the examiner stated that the disability did not have its onset in service or in the year immediately following service, is not related to his reported in-service duties, is not related to herbicide exposure in service, and is not the result of a disease or injury in service. In support of this conclusion, the examiner stated that the Veteran reported no injury to his low back while in military service, there were no treatment records of any injury or complaints of regarding his low back, and in a December 1966 medical report in connection with residuals of viral encephalitis the examination of his spine was normal. In addition, the Veteran reported that he started having pain in his low back 15 years ago, about 30 years after military service. The examiner acknowledged the August 2006 report of Dr. Ecker. However, the examiner found that a review of the Durham VA Medical Center records showed no radiological evidence of arthritis of the lumbar spine prior December 2010. The examiner also noted that there was no established medical causal relationship between herbicide exposure and degenerative arthritis of the great toe. Finally, the examiner found that the Veteran's low back disability was not caused (in whole or in part) nor aggravated by his service-connected degenerative joint disease of the cervical spine. Analysis The record shows that the Veteran has current degenerative arthritis of the left foot (great toe) and lumbosacral spine. The first element of a successful service connection claim is established. The Veteran's reports of the stresses imposed on his body by the circumstances of his service, including combat service, are conceded. His exposure to herbicides is also presumed. The second element of service connection is, therefore also established. The remaining question is whether there is a link between the current disabilities and the in-service stresses or herbicide exposure. As noted, arthritis is not among the diseases subject to presumptive service connection based on herbicide exposure. There is no medical evidence or opinion otherwise linking the current arthritis to such exposure. VA examiners have noted that there is no medical support for a link between the current disabilities and herbicides. The Veteran has, of course asserted that there is a link, but it would require medical or scientific expertise to say that a specific disease was caused by in service herbicide exposure. See 38 U.S.C.A. § 1116 (setting out requirements for medical and scientific studies to establish a link between a disease or disability and herbicide exposure, before establishing presumptive service connection). As a lay person, the Veteran's assertion that there is a relationship between herbicide exposure and current arthritis of the left foot and low back is not competent. The weight of the evidence is thus against a link between the current disabilities and herbicide exposure. There are multiple medical opinions as to whether there is a link between the current disabilities and the stresses imposed by the Veteran's service. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. Nieves-Rodriguez, 22 Vet. App. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Dr. Ecker has provided an opinion linking at least the low back disability to the in-service stresses. This opinion is of limited probative value; however, because it does not consider the effects of the Veteran's post-service employment and contains little in the way of a rationale. The March 2011 VA examiner provided some support for the Veteran's claims by opining that the Veteran's service could have contributed to the development of arthritis; but the opinion was far from definitive and had a limited rationale. Hence, it too is of limited probative value. To the extent the March 2011 examiner reported an inability to provide an opinion without resort to speculation; the opinion weighs neither for nor against the claim. Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). The June 2012 VA examiner, did consider the entire history; including the Veteran's reports and the prior examinations. The examiner provided a definitive opinion and provided detailed reasons for those opinions. The opinion is the most probative evidence as to the relationship between the current disabilities and service. In addition, the Veteran has contended that his claimed disabilities are related to stresses imposed by the circumstances of his service. He has not reported any specific in-service foot or back injuries; nor has he reported a continuity of symptomatology beginning in service (there is also no other evidence of a continuity of symptomatology). It would also require medical expertise to say that disabilities that were first evidenced many years after service were caused by remote events in service, as opposed to events after service. Because the Veteran is not shown to have the requisite expertise, his opinion is not competent evidence of a nexus to service. In summary, the Board concludes that the preponderance of the evidence is against the Veteran's claims. The Board may not base a decision on its own unsubstantiated medical conclusions but, rather, may reach a medical conclusion only on the basis of independent medical evidence in the record. Hensley v. Brown, 5 Vet. App. 155 (1993). The most probative evidence is against the claims. As such, the preponderance of the evidence is against the claims, reasonable doubt does not arise and the claims must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a left foot disability, to include degenerative arthritis, is denied. Service connection for a low back disability, to include degenerative arthritis, is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs