Citation Nr: 1324897 Decision Date: 08/06/13 Archive Date: 08/13/13 DOCKET NO. 10-04 334 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for bilateral big toe arthritis with pain. 2. Entitlement to service connection for a right calf disability. 3. Entitlement to service connection for bilateral hip arthritis. 4. Entitlement to service connection for asthma. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty from August 1976 to March 1977. This case comes before the Board of Veterans' Appeals (Board) on appeal of a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas which denied service connection for bilateral hip arthritis with pain, right calf arthritis with pain, bilateral toe arthritis with pain and asthma. In his substantive appeal, the Veteran requested a hearing before a Veterans Law Judge (VLJ) of the Board at the RO (Travel Board hearing). However, in a February 2010 letter, he requested that his hearing request be withdrawn. The issues of entitlement to service connection for right calf and bilateral hip arthritis and asthma are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The competent evidence shows that the Veteran's bilateral big toe disability was not manifest in service, was not manifest within one year of separation and is not related to service. CONCLUSION OF LAW Bilateral arthritis of the big toe was not incurred in or aggravated by service, and may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper 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. Notice should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. A Supplemental Statement of the Case, when issued following a notice letter, satisfies the due process and notification requirements for an adjudicative decision for these purposes. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided notice to the Veteran in an October 2008 letter, prior to the date of the issuance of the appealed June 2009 rating decision. The October 2008 letter explained what information and evidence was needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. The letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Pertinent medical evidence associated with the claims file consists of service, VA treatment records and private treatment records. The Veteran was not provided with a VA examination and opinion to assess the current nature and etiology of his claimed bilateral big toe arthritis with pain disability. However, VA need not conduct an examination with respect to the claims on appeal, as information and evidence of record contains sufficient competent medical evidence to decide the claims. See 38 C.F.R. § 3.159(c)(4). Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. Simply stated, the standards of McLendon are not met in this case as there is no credible evidence that the Veteran's bilateral big toe arthritis with pain disability manifested in service or was otherwise related to service. Thus remand for VA examinations is not necessary. Also of record and considered in connection with the appeal are the various written statements provided by the Veteran and by the Veteran's representative on his behalf. The Board finds that no additional RO action to further develop the record on the claim is warranted. Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Law and 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, 1131; 38 C.F.R. § 3.303(a). 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden for certain chronic disabilities such as arthritis is through a demonstration of continuity of symptomatology. In relevant part, 38 U.S.C.A. § 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. 2009). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Certain diseases, to include arthritis, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. §] 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Big Toe Arthritis The Board notes that a February 2009 VA treatment report provided a diagnosis of degenerative joint disease of the bilateral big toes. As a result of the above diagnosis, the first element of service connection is satisfied for his claimed disorder. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000). The Veteran's service treatment records are negative for complaints or treatments regarding a bilateral big toe disability. Additionally, the Board notes that there are no clinical findings or diagnoses of degenerative joint disease during service or for several years thereafter. The first post-service evidence of a bilateral big toe disability is a December 2008 VA treatment note reflecting a diagnosis of degenerative joint disease of the bilateral big toes. None of the private medical records or VA treatment records show that the Veteran was diagnosed with arthritis to a compensable degree within one year of service. Regarding direct service connection, there is simply no competent and probative evidence or opinion even suggesting a relationship between any current degenerative joint disease of the bilateral big toes and service; and neither the Veteran nor his representative has identified, presented, or alluded to the existence of any such medical evidence or opinion. To the extent that the Veteran is asserting a continuity of symptomatology since service, the Board does not find the Veteran to be credible with regard to any assertions that he has had symptoms of this disability since service. While the Veteran reported having a bilateral big toe disability that began in service, his service treatment records to include his separation examination report are negative for any treatment, complaint, or diagnosis pertinent to the bilateral big toes. Moreover, the record is negative for complaints or treatments related to his claimed bilateral big toe disability until a December 2008 VA treatment record. Thus, the Board finds that his documented medical history is in conflict with his current assertions that his current bilateral big toe disability continued since service. The Board places greater weight on the contemporaneous service records, to include service separation examination which is negative for any complaints pertaining to the Veteran's bilateral big toe disability. The Veteran's service treatment records were negative for any complaints, treatment, or diagnoses of a bilateral big toe disability and he was not diagnosed with a bilateral big toe disability until many years after service. This is strong evidence against a finding of any continuity of symptomatology and against his claim for service connection. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000). To the extent that the Veteran himself contends that a medical relationship exists between his current disabilities and service, the Board acknowledges that the Veteran is competent to testify as to his observations. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). In the instant case, however, the Board finds that the claimed bilateral big toe and right calf disabilities are not disabilities subject to lay diagnosis. While some symptoms of the disorders may be reported by a layperson, the Veteran and his representative do not have the medical expertise to provide an opinion regarding their existence or etiology. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). Moreover, the lack of in-service complaints related to the big toes combined with the Veteran's denial of a history of broken bones, arthritis, or foot trouble at the time of his March 1977 service separation examination and the lack of documentation of treatment or complaints of toe problems for decades after service weigh heavily against the claim. Thus, to the extent that the Veteran may contend that his current big toe disabilities originated during service and have continued since service, the Board finds his statements lack credibility. In reaching this conclusion, the Board has considered the Veteran's contentions regarding the nature and etiology of his claimed bilateral big toe disabilities, as well as the evidence submitted by him and his representative, contending that his claimed disabilities are related to service. Simply put, the Board finds that the competent evidence of record, while showing the currently diagnosed disability of degenerative joint disease of the bilateral big toes, does not demonstrate arthritis manifested to a compensable degree within one year of separation. Additionally there is no evidence that degenerative joint disease of the bilateral big toes is related to an in-service injury sustained by the Veteran. In sum, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection. The benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for bilateral big toe arthritis with pain is denied. REMAND Following a review of the Veteran's claims file, the Board finds that further development is required prior to the adjudication of the claims for service connection for a bilateral hip disability and asthma. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A (d) (West 2002). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The threshold for finding a link between current disability and disease or injury in service is low. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Hip and Right Calf Disability Regarding his bilateral hip disability, the Veteran's service treatment records demonstrate that the Veteran presented with complaints of right hip and right calf pain in October 1976. However, his March 1977 separation examination is negative for any hip or right calf disability. More recent private treatment records dated in May 2006 note the presence of minimal osteoarthritic changes of the left hip. There are also multiple reports of right hip pain. The Board notes that the Veteran has yet to undergo a VA examination for his claimed bilateral hip and right calf disabilities. As the Veteran has evidence of a current hip disability and right pain with in-service reports of hip and right calf pain, the Board finds that an examination or opinion is necessary to make a decision on the claims. Asthma Regarding his asthma disability, the Veteran contends that he has a preexisting asthma disability which was permanently aggravated during his active service to include when he went through the gas chamber and participated in 5 mile runs. While the Veteran's August 1976 enlistment examination is negative for complaints, treatments or diagnoses related to asthma or breathing difficulties, a January 1977 service treatment record noted that the Veteran had a history of asthma since the age of 9. Recent VA medical records have also provided a diagnosis of asthma. The Veteran has yet to undergo a VA examination to determine whether the Veteran had a preexisting asthma disability and if so, whether the Veteran's service permanently aggravated any preexisting asthma disability beyond the natural progress of the disease. As it was shown on the January 1977 service treatment record that an asthma disability might have preexisted his service, a VA examiner should provide an opinion as to whether any asthma disability preexisted service, and if so, whether it was aggravated beyond its natural progression during service. See 38 U.S.C.A. § 1153 (West 2002) (providing that a pre-existing disease or injury will be considered to have been aggravated by active service where there is an increase in disability during service absent a finding that the increase was due to the natural progress of the disease). Given the facts noted above, the Board finds that the evidence currently of record is insufficient to resolve the claims for service connection for a bilateral hip disability and asthma disability, and that further medical examinations and opinions in connection with these claims is warranted. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c) (4). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disabilities on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. Appropriate efforts must be made to obtain all available VA treatment records. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. Schedule the Veteran for a VA examination to determine the etiology of any current bilateral hip and/or right calf disabilities. Based on a review of the record and an examination of the Veteran, the examiner should: (a) Identify any current bilateral hip and/or right calf disability that is currently manifested or shown in the record at any time since August 2008; and (b) For each hip and/or right calf disability that is identified, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's hip and/or right calf disability is etiologically related to service. The examiner should provide a complete rationale for any opinions provided. The examiner should also confirm that the complete claims file was reviewing, including service treatment records and post-service private treatment records. 3. Schedule the Veteran for a VA examination to determine the existence, and if so, etiology of the claimed asthma disability. In connection with the examination, the examiner should review the Veteran's claims folder. The examiner should be asked respond to the following inquiries: (a) Did the Veteran's asthma clearly and unmistakably exist prior to his entrance onto active duty? The examiner should be advised that "clear and unmistakable evidence" means with a much higher certainty than "as likely as not" or "very likely". See Vanerson v. West, 12 Vet. App. 254, 258 (1999). It is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the non-aggravation result be "undebatable." Cotant v. Principi, 17 Vet. App. 116, 131 (2003), citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). b) If his asthma clearly and unmistakably existed prior to service, the examiner should proffer an opinion as to whether the asthma clearly and unmistakably DID NOT increase in severity beyond the natural progression of the disorder during active duty. c) If asthma DID NOT clearly and unmistakably exist prior to active duty and not aggravated by active duty, the examiner should provide an opinion as to whether there is a 50 percent or better probability that the Veteran's asthma is related to his military service. In rendering this opinion, the examiner should consider the all relevant evidence in the claims file, to include the Veteran's service treatment records, treatment records, and the Veteran's lay assertions. The examiner should provide a complete rationale for any opinions provided. The examiner should also confirm that the complete claims file was reviewing, including service treatment records and post-service private treatment records. 4. Thereafter, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant 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). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs