Citation Nr: 1323944 Decision Date: 07/26/13 Archive Date: 08/06/13 DOCKET NO. 08-25 773 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for a bilateral ankle disability. 2. Entitlement to service connection for a bilateral knee disability. 3. Entitlement to service connection for a right shoulder disability. 4. Entitlement to service connection for a back disability. 5. Entitlement to service connection for a sleep disorder disability. ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from October 2004 to June 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 decision by the RO which, in part, denied service connection for bilateral ankle, bilateral knee, right shoulder and back disabilities, and a July 2011 decision that denied service connection for a sleep disorder. In January 2010, the Board, in part, remanded the appeal for additional development. The issue of service connection for a sleep disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. It is at least as likely as not that the Veteran has residuals of bilateral ankle sprains sustained in service. 2. The Veteran is not shown to have a bilateral knee, right shoulder or back disability at present that had its onset in service or is otherwise related to service or any incident therein. CONCLUSIONS OF LAW 1. Residuals of bilateral ankle sprains were incurred in service. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2012). 2. The Veteran does not have a bilateral knee disability due to disease or injury which was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2012). 3. The Veteran does not have a right shoulder disability due to disease or injury which was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2012). 4. The Veteran does not have a back disability due to disease or injury which was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA Before addressing the merits of the Veteran's claim, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it 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 C.F.R. § 3.159. Such notice must indicate that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id; 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The notification obligation in this case was accomplished by way of letters from the RO to the Veteran dated in April 2007 and March 2011. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Furthermore, no argument has been advanced that there exists any error in the accomplishment of the duty to notify. As to VA's duty to assist, the Board finds that all necessary development has been accomplished and that appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records (STRs) and all VA and identified private medical records have been obtained and associated with the claims file. The Board also reviewed the Veteran's Virtual VA electronic medical records. The Veteran was examined by VA at during the pendency of this appeal and was afforded an opportunity for a personal hearing, but declined. Additionally, the Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the issues on appeal, and has not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of his appeal. See Shinseki v. Sanders, 129 S.Ct.1696 (2009). Additionally, the claim was remanded in January 2010 for additional development of the record. The remand directives included obtaining any outstanding medical records and scheduling the Veteran for an examination to determine the nature and etiology of any identified bilateral ankle, bilateral knee, right shoulder and back disability. The Veteran was afforded appropriate examinations in March 2012, and the claims file was subsequently reviewed by VA orthopedic surgeon in compliance with the remand directives. In light of the foregoing, the Board finds that the RO has substantially complied with the January 2010 remand instructions, and that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issues to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal. Laws & Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. An alternative method of establishing the second and third Shedden/Caluza elements for a chronic disability listed under 38 C.F.R. § 3.309(a), is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); see also, Barr v. Nicholson, 21 Vet. App. 303 (2007); Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition listed under 38 C.F.R. § 3.309(a) was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). A disorder may be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumptive period, and that the veteran still has such a disorder. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-95 (1997). Where a Veteran served for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year of date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009). Medical evidence of a "chronic" disease should set forth the physical findings and symptomatology elicited by examination within the applicable period. 38 C.F.R. § 3.307(b); Oris v. Derwinski, 2 Vet. App. 95, 96 (1992). A chronic disease need not be diagnosed during the presumptive period but characteristic manifestations thereof to the required degree must be shown by acceptable medical and lay evidence followed without unreasonable time lapse by definite diagnosis. 38 C.F.R. § 3.307(c); Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991). An important factor in the factual question of reasonableness in lapse of time from manifestation to diagnosis under 38 C.F.R. § 3.307(c) is the difficulty in diagnosing the disability and the strength of the evidence establishing an identity between the disease manifestations and the subsequent diagnosis. A strong evidentiary link tends to ensure the disease is not due to "intercurrent cause" as set forth in 38 C.F.R. § 3.303(b); Cook v. Brown, 4 Vet. App. 231, 238 (1993). The lapse in time from manifestation to diagnosis under 38 C.F.R. § 3.307(c) "is ultimately a question of fact for the Board to address." Bielby v. Brown, 7 Vet. App. 260, 266 (1994). Factual Background & Analysis Initially, it should be noted that the Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, all the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Veteran contends that his bilateral ankle, bilateral knee, right shoulder and back problems are all related to his military service as a member of the 2nd Infantry Division Taekwondo team. The Veteran alleges that he was treated for all of the claimed disabilities in service, but that for "some reason" some of the visits do not appear in his health records. The Veteran asserts that the injuries cause him pain on a daily basis and believes that he is entitled to a grant of service connection. At this point, it should be noted that in order to prevail on his claim of service connection, it must be shown by competent evidence that the Veteran has a disability that was either present in service or was otherwise related to an injury or disease incurred in service. Evidence that merely shows treatment for an injury or pain symptoms in service, without evidence of an underlying disease or disability is not a basis for a grant of service connection. Here, the Veteran's STRs showed that he was treated for chronic ankle injuries on several occasions in service - diagnosed as ankle sprains. The STRs also showed that the Veteran was seen for right shoulder pain of five days duration on one occasion in service in October 2005. The Veteran denied any history of injury or trauma to his shoulder, and said that he had pain radiating up into his neck area for one day. On examination, there was some decreased range of motion in the right shoulder with pain localized to the right side. There was no radiation of pain into the posterior aspect or chest. The assessment was possible trapezius muscle strain. The STRs did not show any further complaints, treatment or abnormalities for any right shoulder problems during service, and the Veteran made no mention of any right shoulder problems at the time of his service separation examination in April 2006. The STRs do not show any complaints, treatment, abnormalities or diagnosis for any knee or back problems in service. At the time of his service separation examination, the Veteran reported back pain if he stands for too long or with heavy lifting, and that he had pain in his knees from limping due to his bilateral ankle problems. The Veteran denied any bone, joint or other deformity, arthritis, swollen or painful joints, or any impairment of use of his arms, legs, hands or feet. No pertinent abnormalities were noted on examination, and the Veteran's upper and lower extremities, and spine and musculoskeletal system were normal. At the request of the RO, the Veteran submitted a statement from a physician who examined him at Yonsei University College of Medicine in June 2003. The Veteran's complaints included back, bilateral ankle and left shoulder pain. On examination, there was no limitation of motion of the lumbar spine, shoulders or ankles. There was some heel cord tightness and Neer and Hawkins sign in both shoulders. The report indicated that x-ray studies and MRI scans of the ankles and lumbar spine were negative. The evidentiary record also includes a letter from an unidentified healthcare provider, dated in July 2008, to the effect that the Veteran received regular acupuncture treatment for his ankles, knees and back for the previous 17 months. An examination for VA purposes was conducted at a private medical facility in Seoul, Korea in March 2012, to determine the nature and etiology of the Veteran's right shoulder, back and bilateral knee and ankle complaints. On examination, the Veteran reported pain in the right lower extremity and had some decrease motion in his back, right shoulder, knees and on dorsiflexion of the ankles. Strength was normal in all affected joints, and there was no evidence of muscle atrophy, decreased sensation or abnormal movements. Straight leg raising was negative, and there was no instability or subluxation in the knees, ankles or right shoulder. X-ray studies of the back, right shoulder, knees and ankles were negative. MRI scans showed a small amount of joint effusion in the talotibial joints of each ankle and in both knees, and no gross abnormalities in the right shoulder or lumbosacral spine. The anterior/posterior cruciate and collateral ligaments, medial and lateral meniscus of the knees, and the anterior and posterior labrum and rotator cuff tendon of the right shoulder were all grossly normal. The diagnoses included right shoulder strain, bilateral knee strain, bilateral ankle strain and lumbar strain. In April 2013, the claims file and the March 2012 examinations were reviewed by a VA orthopedic surgeon for an opinion as to whether it was at least as likely as not that the Veteran had a disability of the back, right shoulder, knees and ankles that was related to service. The examiner indicated that the claims file was reviewed and included a discussion of the Veteran's medical history and the findings from the examination for each of the claimed disabilities. Concerning the ankles, the examiner noted that the Veteran suffered repetitive injuries to both ankles from Taekwondo training in service, and that there was current evidence of some decreased of motion, subjective pain and small joint effusion in both ankles. However, there was essentially no evidence of any clinical pathology, such as, arthritis or chronic sprain. The Veteran's right shoulder was significant for pain and limited range of motion, but there was no objective findings on MRI or x-ray studies. The examiner commented that an isolated trapezius sprain in service was unlikely to have resulted in any chronic pathology, and opined that there was no objective evidence of a current disability. The examiner noted that while the Veteran reported that his back pain began after he fell from a truck in 2006, the clinical findings on the March 2012 examination were inconsistent with the diagnostic studies. The examiner indicated that the clinical findings were more consistent with a muscular etiology for his back pain, but that the diagnostic studies were normal, except for a decreased lordotic curve which could be due to the muscle spasm. The examiner opined that the mechanism of the Veteran's back pain did not correlate in the absence of findings such as, foraminal stenosis, facet arthrosis or intervertebral disc pathology. As to the Veteran's knees, the examiner opined, that without any history of injury or sprain, normal findings at separation and negative radiographic findings, he could find no basis for a relationship between the Veteran's complaints of knee pain at service separation and the diagnosis of knee sprain on the March 2013 examination report. Concerning the Veteran's ankles, the evidence of record shows a continuity of symptomatology since service, manifested by chronic pain and limitation of motion in both ankles. The evidence showed that the Veteran was treated for chronic ankle sprains on numerous occasion during his less than two years of active service, and that he currently as pain, limitation of motion and x-ray evidence of joint effusion in both ankles. Although the current findings do not reflect more than mild impairment in either ankle, the evidence does show a chronic disability since service, and a current diagnosis of bilateral ankle strain. Accordingly, the Board finds that service connection for bilateral ankle strain is warranted. With regard to the Veteran's right shoulder, the STRs showed that he was treated for non-traumatic shoulder pain with some decreased motion once in service in October 2005, but that he made no mention of any right shoulder problems or was shown to have any pertinent abnormalities at the time of his service separation examination in April 2006. While the Veteran had some mild limitation of motion of the shoulder when examined in March 2012, all other clinical and diagnostic findings were normal. Furthermore, the VA orthopedic surgeon who reviewed the claims file in April 2013, opined that an isolated trapezius sprain in service was unlikely to have resulted in a chronic pathology. Inasmuch as the Veteran was not shown to have a chronic right shoulder problem in service, arthritis within one year of service separation, and no competent evidence relating any current right shoulder disorder to service, the Board finds no basis for a favorable disposition of this matter. Turning to the claims for a back and bilateral knee disability, other than a reported history of knee and back pain at the time of his separation examination in April 2006, the STRs were completely silent for any reported injury, treatment, abnormalities or diagnosis for any back or knee problems, and no pertinent abnormalities were noted at separation. While the Veteran was diagnosed with back and knee strain on examination in March 2012, the VA orthopedic surgeon in April 2013, opined that it was less likely than not that his current back and knee problems were related to service. He noted that there was no evidence of a knee injury in service, that the Veteran had normal range of motion in the knees at the time of service separation, and that there was no objective evidence of any degenerative changes in the knee joints at present. He concluded, therefore, that there was no medical support for finding that the Veteran's current knee strain was related to his complaint of knee pain at the time of discharge from service. As to the back disability, the Board notes that while the Veteran reported on examination in March 2012, that he had back pain ever since he fell off a truck in service in 2006, he made no mention of any such injury at the time of his service separation in April 2006. In fact, at that time, the Veteran reported that he had back pain on prolonged standing or with heavy lifting, but made no mention of any prior injury. That the Veteran would not mention the alleged back injury that, according to his recent assertions, would have occurred within about 97 days of his separation examination, and has reportedly been chronic since the alleged injury, is not rational or believable and reflects negatively on his credibility. Inasmuch as there was no evidence of a back or knee injury or any related disability in service, arthritis within one year of discharge from service, or any competent evidence relating a current back or knee disability to service or any incident therein, the Board finds no basis for a favorable disposition of these issues. In deciding a claim for service connection on the merits, the Board must assess the credibility and weight of all evidence, including the Veteran's statements and the medical evidence to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. See Cartwright v. Derwinski, 2 Vet. App. 24, 26 (1991); Hatlestad v. Derwinski, 1 Vet. App. 164, 169-70 (1991); Gilbert v. Derwinski, 1 Vet. App. 49, 59 (1990). Because the Veteran's contentions regarding his back problems are inconsistent with the record, the Board does not find them credible, and accords them no probative value. Concerning the Veteran's contentions, while his is competent to provide evidence regarding his observations and experiences, he is not shown to have any medical expertise, and therefore any medical conclusions he offers are of no probative value. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); Barr v. Nicholson, 21 Vet. App. 303 (2007). The decision then must be based on the documented medical record, which as described above, fails to support the conclusion that he has a current right shoulder, back or bilateral knee disability that is related to service. The benefit of the doubt has been considered, but there is not an approximate balance of positive and negative evidence regarding the merits of the issue on appeal. Therefore, that doctrine is not for application in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Service connection for residuals of bilateral ankle sprains is granted. Service connection for a bilateral knee disability is denied. Service connection for a right shoulder disability is denied. Service connection for a back disability is denied. REMAND Concerning the claim for a sleep disorder, the Board notes that there are outstanding medical reports pertinent to the Veteran's claim that have not been obtained and associated with the claims file. Therefore, additional development must be undertaken prior to appellate review. Specifically, on his service separation examination in April 2006, the Veteran reported that he had a sleep study at Samsung Hospital in Seoul, South Korea, but had not been advised of the results. Needless to say, a sleep study conducted during the Veteran's active service would be relevant to his claim, and should be obtained. Similarly, a medical certificate from a physician in the Yonsei University Health System, dated in April 2011, indicated that the Veteran underwent a polysomnography in March 2011, which showed a mild degree of obstructive sleep apnea. However, the certificate did not indicate where the study was performed, nor was a copy of the report included in the claims file. Accordingly, the case is REMANDED for the following action: 1. The RO should take appropriate steps to obtain the sleep studies conducted at Samsung Hospital Seoul, South Korea in 2005, and the March 26, 2011 study referred to in the April 2011 medical certificate, and associate the reports with the claims file. 2. After the sleep studies have been obtained, the claims file should be forwarded to a respiratory examiner for review and a medical opinion. The examiner should review the entire record and offer an opinion as to whether it is at least as likely as not that the Veteran has a sleep disorder at present, that was first manifested in service, or is otherwise related to service. A fully articulated medical rationale for any opinions expressed should be set forth in the examination report. The examiner should address the particulars of this Veteran's medical history and the relevant medical science. If an examiner is unable to render an opinion without resorting to speculation, this should be noted and explained. In so doing, the examiner should identify any evidence required in order to render a non-speculative opinion, (which the RO should attempt to obtain, and then return the claims file to the examiner for completion of the opinion). Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather 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 causation as it is to find against it. 3. After the requested development has been completed, the AMC should readjudicate the claim. If the benefits sought on appeal remain denied, the Veteran should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. The Veteran 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). ______________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs