Citation Nr: 1324554 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 05-35 671A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for peripheral vascular disease (PVD) of the lower extremities, claimed as secondary to the service-connected left foot and right knee disabilities. 2. Entitlement to service connection for a bilateral hip disability, claimed as secondary to the service-connected left foot and right knee disabilities. 3. Entitlement to service connection for arthritis of the left knee ("left knee disability"), claimed as secondary to the service-connected left foot and right knee disabilities. REPRESENTATION Appellant represented by: Karl A. Kazmierczak, Esq. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran served on active duty from January 1970 to December 1972, March 1975 to March 1978, and May 1981 to May 1983. This appeal comes before the Board of Veterans' Appeals (Board) from a April 2004 and January 2005 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. Jurisdiction over the case was subsequently transferred to the RO in Winston-Salem, North Carolina. The Veteran testified at a hearing before a Decision Review Officer of the RO in November 2008. A transcript of the proceeding is of record. When this case was most recently before the Board in February 2012, it was decided in part and remanded in part. The case has been returned to the Board for further appellate action. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA FINDINGS OF FACT 1. PVD of the lower extremities was not present until more than one year following the Veteran's discharge from service, is not etiologically related to service and was not caused or aggravated by service-connected disability. 2. A bilateral hip disability was not present until more than one year following the Veteran's discharge from service, is not etiologically related to service, and was not caused or aggravated by service-connected disability. 3. A left knee disability was not present until more than one year following the Veteran's discharge from service, is not etiologically related to service, and was not caused or aggravated by service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for PVD of the lower extremities have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137 (West 2002); 38 C.F.R. § 3.310 (2006); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. The criteria for service connection for a bilateral hip disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137 (West 2002); 38 C.F.R. § 3.310 (2006); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 3. The criteria for service connection of a left knee disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137 (West 2002); 38 C.F.R. § 3.310 (2006); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was provided all required notice in letters mailed in August 2004 and March 2011. Although the Veteran was not provided complete notice until after the initial adjudication of the claims, the Board finds that there is no prejudice to the Veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the notice of the effective date and initial disability rating elements, and the completion of all indicated development of the record, the claims were readjudicated. There is no indication in the record or reason to believe that the ultimate decision on the merits of the claims would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by readjudication of the claim). The record also reflects that all pertinent available service treatment records (STRs) and all available post-service medical evidence identified by the Veteran have been obtained. Neither the Veteran nor his representative has identified any outstanding, existing evidence that could be obtained to substantiate the claims; the Board is also unaware of any such evidence. The Veteran has been afforded appropriate VA examinations, most recently in December 2012, and probative opinions (i.e. opinions supported by a detailed rationale) have been obtained with respect to the etiology of the disabilities at issue. Accordingly, the Board will address the merits of the Veteran's claims. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1131(West 2002); 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests arthritis or arteriosclerosis to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. A veteran who, during active military, naval, or air service served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). Presumptive service connection on the basis of herbicide exposure is authorized for specified diseases. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309. PVD and arthritis are not among the diseases specified. Service connection may be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable under 38 C.F.R. § 3.310(a) (2006). See also, Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). During the pendency of this claim, 38 C.F.R. § 3.310 was amended, effective October 10, 2006. The amendments to this section are not liberalizing. Therefore, the Board will apply the former version of the regulation. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. PVD Service treatment records are negative for any finding or diagnosis of PVD. The Board acknowledges that the December 1986 and January 1993 examination records reflect histories of cramps in the legs. Clinical evaluation of the vascular system was normal, however, and the record does not otherwise suggest the history of cramping was related to a vascular, rather than muscular, abnormality. A February 1994 VA examination record indicates that the Veteran, "denied a history suggestive of" PVD. A September 1998 emergency room treatment record reflects the Veteran's history of a recent diagnosis of atherosclerosis of the lower extremities. Other evidence documenting later treatment for PVD is or record. A January 2000 VA treatment record suggests that the claudicating in the Veteran's legs was linked to smoking. A July 2011 VA examination record reflects the Veteran's history of PVD since 1995. The Veteran explained that the PVD initially manifested as pain in the calves with walking. Examination revealed PVD. The examiner, who reviewed the claims file, determined that the PVD was not caused by or a result of the service-connected right knee or left foot disabilities. The examiner explained that review of medical records and medical literature did not show any causal relationship between joint trauma and PVD. The examiner noted that the review did show a causal relationship between vascular trauma and PVD, but the examiner determined that the Veteran did not have direct vascular injury. The examiner added that smoking was the main risk factor for PVD and elevated cholesterol was a risk factor and noted that the evidence showed the Veteran was a current and longstanding smoker and had elevated cholesterol in June 2001, prior to the prescription of medication. The examiner further noted that the PVD predated the diagnosis of diabetes. Another VA examination was conducted in December 2012. After examination and review of the claims file, the examiner concluded that the PVD was less likely than not incurred in or caused by service or secondary to a service-connected disability. The examiner explained that review of the literature, including the National Institute of Health site on PVD, did not show that musculoskeletal injuries and conditions, such as the foot and knee disabilities, are risk factors or causes of PVD. The examiner also concluded that the PVD was not due to his diabetes because the first diagnosis of diabetes postdated the first diagnosis of PVD by more than six years. Finally, the examiner concluded that the PVD was not aggravated by a service-connected condition. The examiner explained that the leading risk factors for PVD are smoking, hypertension, hypercholesterolemia, and diabetes. The examiner noted that the Veteran was a smoker with hypertension and hypercholesterolemia, which all predated the diabetes, and which contributed to the progression of his PVD. The examiner added that the Veteran's "ABI" on the left (nonsurgical) leg dropped by 19 percent between 2001 and 2004, prior to the diagnosis of diabetes; that "given the Veteran's ongoing smoking, hypertension, and hypercholesterolemia, an ongoing loss of 19% every 4 years could be anticipated based on those risk factors alone;" and that the Veteran's left ABI was actually lower than the natural progression of PVD based solely on the non-diabetic risk factors (i.e. smoking, hypertension, and hypercholesterolemia). Service connection is not warranted for PVD. Initially, the Board finds the preponderance of the evidence shows that it was not present until years after service and is not related to service. The service treatment and examination records, to include the retirement examination record, reflect no finding or diagnosis of PVD, the earliest diagnosis reported in the record dates 15 years after the final period of active service, and histories provided after diagnosis date its onset to no fewer than 14 years after service. Furthermore, the Veteran has not reported the existence of symptoms of PVD during service. The competent evidence also does not suggest that the PVD is related to service, to include in-service injuries to the right knee and left foot. There is no evidence, or even allegation, of such a link, and VA examiners have determined that the Veteran's PVD is not related to trauma. The Board finds the VA examiners' opinions are probative as they are supported by a well-detailed rationale. There is also no evidence to suggest the PVD is secondary to herbicide exposure in Vietnam. PVD is not among the disease specified for presumptive service connection on the basis of herbicide exposure, the Veteran has not claimed that the PVD is related to herbicide exposure, and there is no medical evidence of such a link. The preponderance of the evidence also shows that the PVD was not caused or aggravated by service connected disability, to include the service-connected diabetes and right knee and left foot disabilities. VA examiners have provided probative opinions that the PVD was not caused or aggravated by service-connected disability, and there is no contrary medical opinion of record. The Board acknowledges that the Veteran believes his PVD is due to an impaired ability to exercise due to the right knee and left foot disabilities. The probative evidence does not suggest that the Veteran's PVD is related, through either causation or aggravation, to the service-connected orthopedic disabilities or the associated impairment, however. There are no medical findings or studies of record suggestive of such a link, and a VA physician has opined that a failure to exercise "will not provoke progression of" PVD. See April 2005 VA treatment record. Furthermore, the evidence does not suggest the Veteran possesses the specialized knowledge necessary to render a competent opinion that PVD was caused or aggravated by the service-connected orthopedic disabilities or the associated impairment. Thus, the Veteran's statements are not probative evidence of a link between the PVD and the service-connected left foot and right knee disabilities. The Board further acknowledges that the evidence indicates that diabetes is a risk factor for PVD. The record does not suggest that the Veteran's PVD is related to the service-connected diabetes, however. The Veteran has not alleged, and the medical evidence does not suggest, that such a link exists. The diagnosis of PVD predates the diagnosis of diabetes; there are no medical findings of a link, either through causation or aggravation; and an August 2007 private treatment record indicates that there were no complications of diabetes. Furthermore, VA examiners have provided competent opinions that the Veteran's PVD was not caused or aggravated by his service-connected diabetes, and the Board finds the VA examiners' determinations are highly probative as they are supported by an extensive rationale. Accordingly, service connection is not warranted for PVD. Bilateral Hip Disability Service treatment and examination records are negative for evidence of a hip disability. September 2004 treatment records reflect the Veteran's history of right hip pain. X-ray imaging of the right hip was negative for abnormality. See September 2004 VA and Army Hospital treatment records. The Veteran was assessed with right hip/joint pain. The Army Hospital medical record also reflects a diagnosis of arthritis but it appears this diagnosis was based on a history of arthritis and pain affecting the ankles, knees, and elbows rather than the examination of the right hip. A June 2011 VA examination record reflects the Veteran's history of right hip pain since 1991. The Veteran explained that in 1991, he had right hip pain with running. X-ray images of the hips were unremarkable. The examiner did not diagnose a hip disablty; instead, the examiner found the reported pain was referred from a lumbar spine disability. A December 2012 VA examination record reflects a diagnosis of degenerative joint disease of the hips. The examiner determined that the bilateral hip disability was less likely than not incurred in or caused by service and was not caused or aggravated by the service-connected right knee and/or left foot disability. The examiner explained that the risk factors for degenerative joint disease are aging, genetics, overweight, previous fracture or injury of the specific joint, and repetitive activities involving the damaged joint such as squatting or twisting. The examiner added that review of the medical literature did not support a finding that degenerative joint disease or injury in one joint could cause or aggravate a pathologic condition, such as degenerative joint disease, in another joint, directly or due to favoring the unafflicted joint because of pain in the injured joint. Service connection is not warranted for a bilateral hip disability. Initially, the Board finds the preponderance of the evidence shows that it was not present until more than one year following the Veteran's discharge from service and is not related to service. The service treatment and examination records, to include the retirement examination record, reflect no findings or histories indicative of a hip disability, the earliest service-connectable diagnosis of record dates 29 years after the final period of active service, and histories provided by the Veteran date its onset to no less than eight years after service. Furthermore, the Veteran has not reported the existence of symptoms of a chronic hip disability during service. The competent evidence also does not suggest that a hip disability is related to service, to include in-service injuries of the right knee and left foot. There is no evidence, or even allegation, of such a link, and VA examiners have determined that the Veteran's hip disability is not related to service, to include the injuries of the right knee and left foot. The Board finds the VA examiners' opinions are probative as they are supported by a rationale. The preponderance of the evidence also shows that hip disability was not caused or aggravated by the service-connected right knee and left foot disabilities. VA examiners have provided probative opinions that the hip disabilities were not caused or aggravated by the service-connected right knee and left foot disabilities, and there is no contrary medical opinion of record. The Board acknowledges that the Veteran believes his bilateral hip disability is due to the right knee and left foot disabilities. There are no medical findings or studies of record suggestive of such a link, however, and the evidence does not suggest the Veteran possesses the specialized knowledge necessary to render him competent to make that determination Thus, the Veteran's statements are not probative evidence of a link between the bilateral hip disability and the service-connected left foot and right knee disabilities. Accordingly, service connection is not warranted for bilateral hip disability. Left Knee Disability Service treatment and examination records are negative for evidence of a left knee disability. A February 1994 VA examination record reflects the Veteran's history of surgery on the left knee in 1974 after a skiing accident. He denied any problem with the left knee at the time of examination. However, the record indicates that examination was conducted on the right knee, which was the knee injured in service. A September 2004 Army Hospital treatment record reflects the Veteran's history of symptoms including pain in the knee. A June 2008 rehabilitation medicine record reflects the Veteran's history of pain in the knees. He also reported injuring the knees in 1975. A June 2011 VA examination record reflects the Veteran's history of left knee pain since 2005. He explained that he first noticed the pain when driving a manual transmission truck. The Veteran did not report a history of any injury of the left knee during service; he only reported injury of the right knee. Examination revealed decreased range of motion. X-ray images were unremarkable. The Veteran was assessed with left knee strain. The examiner opined that the left knee strain was not caused by or a result of the left foot and/or right knee disabilities. The examiner added that there was nothing in the service records showing injury of the left knee at the time of the left foot and right knee injuries. A December 2012 VA examination record reflects a diagnosis of degenerative joint disease of the left knee. The examiner determined that the left knee disability was less likely than not incurred in or caused by service and was not caused or aggravated by the service-connected right knee and/or left foot disability. The examiner explained that the risk factors for degenerative joint disease are aging, genetics, overweight, previous fracture or injury of the specific joint, and repetitive activities involving the damaged joint such as squatting or twisting. The examiner added that review of the medical literature did not support a finding that degenerative joint disease or injury in one joint could cause or aggravate a pathologic condition, such as degenerative joint disease, in another joint, directly or due to favoring the unafflicted joint because of pain in the injured joint. Service connection is not warranted for a left knee disability. Initially, the Board finds the preponderance of the evidence shows that it was not present until more than one year following the Veteran's discharge from service and is not related to service. The service treatment and examination records, to include the retirement examination record, reflect no findings or histories indicative of a left knee disability; the earliest diagnosis of record dates 28 years after the final period of active service; and histories provided by the Veteran date its onset to no less than 23 years after service. Furthermore, the Veteran has not reported the existence of symptoms of a chronic left knee disability during service. The competent evidence also does not suggest that a left knee disability is related to service, to include in-service injuries to the right knee and left foot. There is no evidence, or even allegation, of such a link, and VA examiners have determined that the Veteran's left knee disability is not related to service, to include the injuries of the right knee and left foot. The Board finds the VA examiners' opinions are probative as they are supported by a rationale. The Board acknowledges that the record includes some histories of injury of the left knee during service. These histories are not corroborated by the service treatment records, however, and are contradicted by other histories provided by the Veteran in which he only reports injury of the right knee during service; as such, the Board finds the histories of injury of the left knee in service are not credible, and thus not probative. The preponderance of the evidence also shows that the left knee disability is not secondary to the service-connected right knee and left foot disabilities. VA examiners have provided probative opinions that the left knee disability was not caused or aggravated by the service-connected right knee and left foot disabilities, and there is no contrary medical opinion of record. The Board acknowledges that the Veteran believes his left knee disability is due to the right knee and left foot disabilities. There are no medical findings or studies of record suggestive of such a link, however, and the evidence does not suggest the Veteran possesses the specialized knowledge necessary to render him competent to make that determination. Thus, the Veteran's statements are not probative evidence of a link between the left knee disability and the service-connected left foot and right knee disabilities. Accordingly, service connection is not warranted for a left knee disability. ORDER Service connection for PVD of the lower extremities is denied. Service connection for a bilateral hip disability is denied. Service connection for a left knee disability is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs