Citation Nr: 1323328 Decision Date: 07/22/13 Archive Date: 08/01/13 DOCKET NO. 11-17 772 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for a right lower extremity disorder, including as a result of cold exposure. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from October 1955 to May 1960. This matter initially came before the Board of Veterans' Appeals (Board) on an appeal from an August 2010 rating decision issued by the Regional Office (RO) in Denver, Colorado. It was remanded by the Board for additional development in January 2013. The case has now been returned to the Board for appellate disposition. The Veteran testified before the undersigned Acting Veterans Law Judge at a November 2012 hearing. In addition, a July 1981 RO rating decision denied a claim for entitlement to service connection for bilateral foot condition. As this prior decision concerned pes planus, a disease different than the one for which service connection is being claimed on this appeal, the Board will address the current claim on a de novo basis. Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008) (claims based on separate and distinctly diagnosed conditions must be considered separate and distinct claims for purposes of VA benefits). 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). FINDING OF FACT 1. A right lower extremity disorder, to include arthritis, did not manifest in service, arthritis did not manifest to a compensable degree within the one year presumptive period, and current right lower extremity disability is unrelated to service, including exposure to cold temperatures. CONCLUSION OF LAW A right lower extremity disorder was not incurred in, or aggravated by, service, and arthritis may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veterans Claims and Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants with substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. § 3.102, 3.156(a), 3.159. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate his or her claim. 38 U.S.C.A. § 5103(a), 38 C.F.R § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 186-187 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper VCAA notice 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. The Board notes that 38 C.F.R. § 3.159 was revised in part, effective May 30, 2008. See 73 Fed. Reg. 23,353-23,356. The third sentence of 38 C.F.R. § 3.159(b)(1), which stated that "VA will also request that the claimant provide any evidence in the claimant's possession that pertains to the claim," was removed. This amendment applies to all applications pending on, or filed after, the regulation's effective date. VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112, 115 (2004). However, the VCAA notice requirements may be satisfied notwithstanding errors in the timing or content of the notice if such errors are not prejudicial to the claimant. Id at 121. Further, a defect in the timing of the notice may be cured by sending proper notice prior to a re-adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333-1334 (Fed. Cir. 2006). The VA General Counsel issued a precedential opinion interpreting Pelegrini as requiring the Board to ensure that proper notice is provided unless it makes findings regarding the completeness of the record or other facts that would permit the conclusion that the notice error was harmless. See VAOGCPREC 7-2004. The United States Court of Appeals for the Federal Circuit reaffirmed the importance of proper VCAA notice in Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Mayfield and its progeny instruct that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents, is required to meet the VCAA's notification requirements. Id at 1320. However, VCAA notification does not require a pre-adjudicatory analysis of the evidence already contained in the record. See, e.g. Mayfield v. Nicholson, 20 Vet. App. 537, 541 (2006). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sum nom Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice requirements are applicable to all five elements of a service connection claim. Thus, the Veteran must be notified that a disability rating and effective date for the award of benefits will be assigned if service connection for a claimed disability is awarded. Id at 486. The Veteran was sent a letter in November 2009, prior to the decision on appeal, which explained how VA could help him obtain evidence in support of his claim. The November 2009 letter also explained what the evidence needed to show in order to establish service connection for a claimed disability as well as how VA assigns ratings and effective dates for service connected disabilities. Additionally, at the November 2012 hearing, the undersigned explained how to establish entitlement to service connection and the types of evidence that would be helpful in substantiating the claim. VA also must make reasonable efforts to assist the claimant with obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has of record evidence including service treatment records (STRs), private treatment records, VA treatment records, written statements from the Veteran and various friends and relatives, and a transcript of the Veteran's testimony at the November 2012 hearing. The Board notes that the National Personnel Records Center (NPRC) indicated that it was unable to locate the Veteran's service personnel records and that they were likely destroyed by fire. The NPRC was also unable to locate any clinical records from Sampson Air Force Base, where the Veteran testified that he was treated during service. There also appear to be documents missing from the claims file. For example, the July 1981 RO decision indicates that it is in response to an application to reopen, but there is no prior denial in the claims file. In these circumstances, VA's duties to assist, to provide reasons and bases for its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule are heightened. Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). The Veteran reported receiving treatment from various private facilities throughout the years since service. Records since 2000 were obtained. Other records could not be obtained because the providers either could not be found or no longer had the records. As it would have been futile to make additional efforts to locate such records, the RO was not required to take additional action pursuant to its duty to assist. 38 C.F.R. § 3.159(c)(1) (VA not required to make follow-up request for private treatment records where follow-up request for records would be futile). Moreover, the RO notified the Veteran in a January 2010 of its inability to obtain various private records and the actions it would take in this regard. 38 U.S.C.A. § 5103A(b)(2); 38 C.F.R. § 3.159(e)(1). The Veteran was afforded a VA examination in connection with his claim in April 2013. The Board finds that the examination adequately documented the Veteran's complaints and that the examiner provided a well-supported etiology opinion. The April 2013 examination additionally satisfied the directives that were set forth in the January 2013 remand. The RO thus complied with its duty to assist and the Board's remand instructions in this regard. Stegall v. West, 11 Vet. App. 268, 271 (1998). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claim on appeal is thus ready to be considered on the merits. Analysis The Veteran contends that he developed difficulties with his right knee and ankle as a result of his service, possibly due to exposure to cold temperatures when he was stationed in upstate New York. Currently, treatment records show that the Veteran has osteoarthritis of the bilateral knees and ankles. Service connection may be granted for a disability resulting from disease or injury that was incurred in, or aggravated by, service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection for some chronic diseases, including arthritis, may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge if all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"- the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C.A. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran has been diagnosed with arthritis, which is a chronic disease listed in the statute and regulation and the Board will therefore consider the chronicity and continuity provisions of 38 C.F.R. § 3.303(b) in this case. In addition, for veterans with 90 days or more of active service during a war period or after December 31, 1946, the chronic diseases, including arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101(3), 1112(a)(1), 1113, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). The Veteran's service treatment records do not document any complaints or treatment related to the right knee or ankle. The January 1958 reenlistment examination report and the April 1960 separation examination report indicated all systems were normal, including the lower extremities. Moreover, on the January 1958 and May 1960 reports of medical history, the Veteran indicated that he did not have and had never had swollen or painful joints, arthritis or rheumatism, bone joint, or other deformity (on the May 1960 report; no box was checked on the January 1958 report), lameness, or trick or locked knee. Flat feet since childhood was noted, treated with arch supports, and there were notations with regard to flat feet in the STRs. Private treatment records reflect that the Veteran currently has osteoarthritis of the knees and ankles. In 2000 he sought treatment for worsening bilateral knee pain with no inciting trauma. He received treatment for the knees including injections. In September 2004 he injured his right knee coming down a step ladder. In November 2009 the Veteran told a health care provider that his symptoms were the same as in basic training 50 years ago. The Veteran submitted letters from various friends and family members who met him after service. Two long term friends he met approximately 20 or more years after service related that the Veteran told them that he had injured his right leg in service. His wife of 26 years and his children asserted that the Veteran injured his right knee in basic training. The Veteran's aunt remembered that the Veteran did have crutches when he came home after basic training in 1955 and he told her he had injured his leg in basic training at that time. Also, the Veteran's ex-wife wrote that before their marriage in 1956 the Veteran told her that he had injured his right leg and foot in service and that he used crutches at times. The Veteran's friends and relatives also wrote that the Veteran currently has right knee and/or leg problems. In a December 2009 written statement the Veteran wrote that he was exposed to very cold temperatures during his military training in upstate New York and he did not feel he was provided proper clothing for the climate. During the last weeks of training his right ankle and knee were swollen. He thought that this might have been due to either an unspecified injury or the cold weather. He claimed that he had the same problem now which got worse over the years. On his VA Form 9 dated in June 2011 the Veteran wrote that he was treated at a hospital for his knee injury while he was in service and left basic training on crutches. He did not believe his flat feet were the cause of his knee and ankle problems because these problems started in basic training and he still had pain after he had foot surgery to correct his flat feet. At his November 2012 hearing, the Veteran testified that it was very cold during his basic training in New York in the winter. One day he woke up with a swollen knee and ankle and was taken to the infirmary and given crutches. He was given pain pills and injections during service. He was on crutches for about three weeks. He was then transferred to an Air Force base in Florida where he continued to experience knee and ankle problems. He testified that he was on a profile excusing him from various physical training activities in service due to his knee and ankle problems. He would go six to seven months with no symptoms and then they would recur. He claimed that he did report his knee problems at his discharge physical, but was told his troubles were due to his flat feet. After discharge, he continued to receive private treatment for his right knee and ankle. He had applied for service connection for a right leg problem shortly after service, but his claim was denied. The Veteran was afforded a VA examination of his right lower extremity in April 2013. This included examination of the right knee and ankle, as well as a cold injury protocol examination. The examiner diagnosed osteoarthritis of the bilateral knees and ankles. The examiner specifically found that the Veteran did not have and had never been diagnosed with cold injury residuals. After a physical examination of the Veteran and a complete review of the evidence in the claims file, the examiner concluded that it was less likely than not that the Veteran's current right knee and ankle arthritis was related to his military service. In the lengthy rationale section, the examiner indicated the following: The Veteran's main problem in his right lower extremity was osteoarthritis in both the knee and ankle, and that this was also present in the joints of the left lower extremity. While the Veteran now claims to have had right knee and ankle troubles in service, he denied these problems while he was in service. The next available records were in 2000 which documented chronic knee pain and obesity. Initial x-rays in 2000 were positive for facet narrowing but negative for degenerative joint disease, although a subsequent MRI showed mild arthritis. Hence, there was a significant time frame between service and the presence of mild degenerative joint disease, with the presence of comorbid risk factors, such as obesity. He also had moderate degenerative joint disease of the left knee, which is the side that was reportedly not affected in basic training. The Veteran's current arthritis is the natural progression of his body towards degenerative joint disease that is also found in other joints that were not noted to be affected by the cold. Repeat x-rays conducted in conjunction with the examination showed that there was actually greater radiographic evidence of arthritis in the left knee versus the right knee, further supporting the disconnect in pathophysiology between the Veteran's claim of cold temperature exposure and the current degenerative joint disease in his knees. While the Veteran was exposed to cold temperatures in service and reported knee and ankle symptoms, it was more likely that these were mechanical symptoms rather than actual tissue damage due to cellular hypothermia. Osteoarthritis in both knees and ankles in a 76 year old man who first showed signs of mild osteoarthritis after age 60 is not due to exposure to cold weather during basic training. Exposure to cold weather in general does not constitute a cold injury in the medically accepted sense of tissue damage due to cellular hypothermia. To have such significant cold related injury to involve the bone, earlier stage signs such as frostbite would have been present and distal circulation (feet) would have been affected before such a large proximal joint (knee) was affected. Hence, his presentation during service does not clinically correlate with what is expected from a cold-induced injury, but is more consistent with mechanical issues. Therefore, the Veteran's current right leg condition, which consists of right knee and ankle degenerative joint disease, is less likely than not due to cold or any other service related injury. The April 2013 VA examiner's opinion is entitled to substantial probative weight because he gave a detailed explanation of the reasons for his conclusions based on an accurate characterization of the evidence in the claims file. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). He explained why it was more likely that the Veteran's arthritis was due to factors other than service including in-service exposure to cold weather. Moreover, there is no contrary medical opinion in the evidence of record. The Veteran and the lay witnesses are competent to report their observations, but their statements must be weighed against the other evidence of record. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). To the extent that these statements indicate continuity of symptomatology in and since service, the statements are contradicted by the Veteran's contemporaneous statements at reenlistment and separation that he did not have and had never had painful or swollen joints or related symptoms. The Board finds the contemporaneous statements made to health care providers to be of greater probative weight than the later statements made during the course of an appeal from the denial of compensation benefits. Fed. R. Evid. 803(4) (noting that statements made to physicians for the purposes of diagnosis and treatment are exceptionally trustworthy and not excluded by the hearsay rule because the declarant has a strong motive to tell the truth in order to receive proper care); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) ("[R]ecourse to the [Federal] Rules [of Evidence] is appropriate where they will assist in the articulation of the Board's reasons"); Pond v. West, 12 Vet. App. 341, 345 (1999) (interest may affect the credibility of testimony). Also weighing against continuity of symptomatology is the fact that, as symptoms of the feet were noted in service and at separation, other symptoms of the lower extremities existing at those times would be expected to be noted. Buczynski v. Shinseki, 24 Vet. App. 221 (2011) (citing Fed. R. Evid. 803(7) for the proposition that the absence of an entry in a record may be evidence against the existence of a fact if it would ordinarily be recorded). The statements indicating continuity of symptomatology are therefore not credible. The Veteran also reported during the Board hearing that he had been told by physicians that his current right lower extremity disorder was related to in-service cold exposure, but that the records including such opinions were not available. Hearing transcript, at 9. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when the layperson is reporting a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d at 1377. Even assuming that the Veteran accurately relayed the etiological opinions of the physicians to whom he referred, the probative value of this evidence, indicating in general a relationship between current disability and in-service cold exposure, is outweighed by the specific, reasoned opinion of the April 2013 VA examiner. As to the opinions of the lay witnesses that the Veteran's current right lower extremity disorder is related to in-service cold exposure, this appears to be testimony as to an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Compare Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). See also 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). To the extent that this testimony is competent, the probative value of the specific, reasoned opinion of the April 2013 VA examiner outweighs that of the more general lay assertions. There is also no evidence that arthritis was present to a compensable degree within one year of service. Rather, osteoarthritis was diagnosed many years after service and, as explained above, the evidence is against a finding that there were symptoms during service or within a year thereafter indicating that arthritis manifested during that time period and was no diagnosed until many years later. The Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine is inapplicable in the instant case because the preponderance of the evidence is against the Veteran's claim. See, e.g., Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Accordingly, entitlement to service connection for right lower extremity disorder, including as a result of cold exposure, is not warranted. ORDER Service connection for a right lower extremity disorder is denied. ____________________________________________ J. HAGER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs