Citation Nr: 1325742 Decision Date: 08/14/13 Archive Date: 08/16/13 DOCKET NO. 09-15 160A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for a shortened right leg, to include as secondary to a service-connected chronic back condition. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from June 1958 to December 1961. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In July 2010, November 2011, and August 2012, the Board remanded the case for further action by the originating agency. The case has now returned to the Board for further appellate action. In May 2010, the Veteran asked VA for clarification regarding the status of an appeal for an increased rating for a chronic back condition. This claim was addressed by the Board in its November 2011 decision and denied. Thus, the claim for entitlement to an increased initial rating for a chronic back condition is no longer on appeal. The Veteran's May 2010 correspondence with VA also raised the issues of entitlement to service connection for numbness and pain in both legs secondary to a service-connected back disability. The Veteran is already service-connected for radiculopathy of the right lower extremity, and the Board will interpret his May 2010 statement as a claim for an increased rating for right radiculopathy. A claim for entitlement to service connection for neurological impairment of the left lower extremity was properly raised by the May 2010 correspondence. Additionally, in a March 2013 statement, the Veteran also filed a claim for entitlement to service connection for an altered gait with associated right hip and knee disabilities secondary to the service-connected chronic back condition. The issues of entitlement to an increased rating for radiculopathy of the right lower extremity and entitlement to service connection for neurological impairment of the left lower extremity and an altered gait with associated right hip and knee disabilities (all secondary to a service-connected back disability) have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran's shortened right leg is not caused or aggravated by a service-connected disability. 2. The Veteran's shortened right leg clearly and unmistakably existed prior to active duty service and was not aggravated during such service. CONCLUSION OF LAW A shortened right leg clearly and unmistakably pre-existed active duty service and was not incurred or aggravated by such service or a service-connected disability. 38 U.S.C.A. §§ 1111, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends that service connection is warranted for a shortened right leg as it was caused or aggravated by a service-connected chronic back condition. In statements to VA and during several VA examinations, the Veteran reported that he noticed the onset of pain in his right leg following an in-service back injury and was diagnosed and treated for a shortened right leg by a private chiropractor in the 1970s. The Board will also consider whether service connection is warranted for the claimed disability as directly due to service. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 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"-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is also provided for a disability which is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Turning first to whether service connection is warranted on a secondary basis, the Board notes that the record contains conflicting evidence regarding whether the Veteran has a shortened right lower extremity. Upon VA examination in March 2009, the Veteran's right leg measured 35 inches while his left leg was measured to 35.5 inches. He was diagnosed with a very slight shortening of the right leg. Similarly, an October 2012 VA examiner also diagnosed a shorter right leg compared to the left. However, upon VA examination in September 2010, both the Veteran's legs were measured to equal lengths of 35.5 inches. A VA expert in orthopedics who reviewed the claims file in May 2013 noted that there are two types of shortening of the lower extremities: apparent shortening and true shortening. True shortening is only confirmed by radiological scanogram, while apparent shortening can present based on who measures the lower extremities and whether the postural and pelvic obliquity is taken into account during the examination. In this case, the necessary tests to confirm the presence of true shortening of the right leg have not been conducted, but the Board will resolve all doubt in the record concerning the presence of a shortened right leg in the Veteran's favor and find that a current disability of an apparent shortened right leg is demonstrated. Although the record establishes the presence of a shortened right leg, the weight of the evidence is against a relationship between the current disability and the Veteran's service-connected chronic back condition. In support of his claim, the Veteran submitted a July 2008 letter from his private chiropractor. The chiropractor stated that she had treated the Veteran since June 2002 and noted that the Veteran wears a heel lift for a short right leg. She also stated that the Veteran had a functional right short leg that was associated with low back and/or hip pain. Although the chiropractor opined that the Veteran's shortened right leg was "associated" with back pain, the Board finds that the probative value of the medical opinion is reduced due to its vagueness and lack of specificity. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinions that are speculative, general, or inconclusive in nature cannot support a claim). The private chiropractor did not provide any rationale or reason for the conclusion that the Veteran's shortened right leg was associated with back pain, and insinuated that the disability might be the result of a hip condition rather than a service-connected back disability. In contrast, the record contains three VA medical opinions weighing against the claim. After physically examining the Veteran and reviewing the claims file, VA examiners in March 2009 and September 2010 found that it was less likely as not that the Veteran's short right leg was caused by or the result of his service-connected low back disability. The March 2009 VA examiner noted that typically problems with the leg (such as pain and limping due to a knee disability) are the cause of a low back condition, rather than the reverse situation as claimed by the Veteran. The September 2010 VA examiner also observed that there was no evidence in this case of scoliosis that could result in an uneven pelvis and examination of the Veteran's back, knees, and hips was symmetrical. It was therefore less likely than not that any current disability of the right leg could be attributed to chronic back disease. Also of record is the opinion of a VA specialist in orthopedics who provided a medical opinion against the claim in May 2013. The VA orthopedist concluded that the Veteran's low back disability was neither a causative nor aggravating factor in the Veteran's shortened right leg. The VA orthopedist identified several specific factors that could cause shortening of the Veteran's lower extremity, to include a healed fracture, congenital shortening of the leg, and joint space narrowing of the right hip, knee, or ankle, but noted that none of these factors are related to or aggravated by the service-connected lumbar spine disability. In fact, the VA orthopedist went so far as to state that any further question regarding whether the Veteran's chronic back condition aggravated his shortened right leg was invalid and amounted to nothing more than speculation. The VA opinions weighing against the claim for service connection on a secondary basis were rendered following complete review of the Veteran's claims file, and in the case of the May 2013 VA orthopedist, were issued by a medical specialist. The VA medical opinions were also accompanied by well-supported rationales and included specific reference to evidence in the claims file, including the results of physical examinations conducted in March 2009 and September 2010. The Board therefore finds that they are entitled to significant probative weight. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). The Board has also considered the Veteran's statements linking his shortened right leg to the service-connected chronic back condition, but as a lay person, he is not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Grover v. West, 12 Vet. App. 109, 112 (1999). The Board acknowledges that the Veteran is competent to testify as to observable symptoms, but finds that his opinion as to the cause of his claimed disability simply cannot be accepted as competent evidence and is clearly outweighed by the medical opinions against the claims. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1131, 1336 (Fed. Cir. 2006). Thus, the Board finds that the competent evidence of record weighs against the claim for service connection on a secondary basis for a shortened right lower extremity. Turning to whether service connection is warranted on a direct basis, the Veteran has not contended that he experienced any symptoms of a short right leg during military service. Service records are negative for any complaints or treatment pertaining to the Veteran's right lower extremity, though there is some evidence that the claimed shortening of the right leg may have preexisted service. Specifically, an October 2010 VA examiner concluded that the Veteran's claimed disability was present prior to his enlistment into active duty in June 1958. Thus, the Board must consider whether the presumption of soundness is applicable in this case. A Veteran who served during a period of war is presumed to be in sound condition when enrolled for service, except for any defects, infirmities, or disorders noted at the time of examination, acceptance and enrollment. 38 U.S.C.A. § 1111. Only such conditions as are recorded in examination reports are to be considered as "noted." 38 C.F.R. § 3.304(b). The presumption of soundness can be rebutted if clear and unmistakable evidence demonstrates that the disease or injury existed prior to service and was not aggravated by such service. 38 U.S.C.A. § 1111. The Veteran's June 1958 enlistment examination does not contain any findings or abnormalities related to the Veteran's right lower extremity and a preexisting condition was not noted on the examination report. The presumption of soundness is therefore for application in this case; however, the Board finds that the presumption is rebutted. After examining the Veteran and reviewing the claims file, the October 2012 VA examiner specifically found that the Veteran's claimed shortened right leg clearly and unmistakably preexisted prior to service and clearly and unmistakably was not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner noted that a shortened bone is caused by an accident or injury, but found no such event was documented in the record. In addition, service records do not indicate that the Veteran's preexisting disability was aggravated during service. Service treatment records do not show any treatment pertaining to the Veteran's right leg. His lower extremities were normal at the November 1961 separation examination and similar findings were made at a November 1963 naval reserves examination two years after discharge from active duty. The Veteran also denied experiencing any bone, joint, or other deformities on the reports of medical history that accompanied both examinations. The Veteran has also not reported that he required any treatment for his shortened right leg until 1976, more than 15 years after his separation from active service, when a private chiropractor provided a right heel insert for his shoe. It is therefore clear that the Veteran's preexisting shortened right leg was not aggravated due to any incident of active duty service, to include the in-service low back injury. As the claimed disability was not incurred or aggravated during active military service, service connection is not warranted and the claim is denied. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)) defined VA's duties to notify and assist a veteran in the substantiation of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA 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; (3) and that the claimant is expected to provide. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In this case, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) with respect to service connection on a secondary basis was furnished to the Veteran in a May 2008 letter. The Veteran also received notice regarding the disability-rating and effective-date elements of the claim in a January 2010 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has not received VCAA notice with respect to a claim for direct service connection. The Veteran has not alleged any prejudice resulting from the lack of notice on the direct service connection elements of the claim. In fact, the Veteran has never contended that service connection is warranted for a shortened right leg as directly due to service. Prejudicial error occurs in the context of VCAA notice only when such error affects "the essential fairness of an adjudication" or "has the natural effect of producing prejudice." Mayfield v. Nicholson, 19 Vet. App. 103 (2005). Appellants must generally identify "with considerable specificity": (1) how the VCAA notice was defective; (2) what evidence the appellant would have provided or requested that VA obtain had VA fulfilled its notice obligations; and (3) how the lack of notice and evidence affected the essential fairness of the adjudication. Id; see also Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (holding that a party alleging defective VCAA notice has the burden of showing how the defective notice was harmful). As the Veteran has never related his shortened right leg to active duty service or alleged any prejudice from the lack of notice on direct service connection, the Board finds that the lack of notice on such elements has not affected the essential fairness of the adjudication. Mayfield, supra. VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records, records of VA treatment, and a statement from the Veteran's private chiropractor. Although the Veteran reported undergoing private treatment with other health care providers in the 1970s, in a March 2008 statement he clarified that the physicians were deceased and no medical records were available for procurement. Additionally, the Veteran was provided several VA examinations and medical opinions addressing the etiology of his claimed shortened right lower extremity throughout the claims period. The most recent VA medical opinion was added to the record in May 2013 and was provided by a VA expert in orthopedics. The orthopedist specifically considered whether the Veteran's claimed disability was caused or aggravated by the service-connected chronic back condition. The Board also finds that VA has complied with the July 2010, November 2011, and August 2012 remand orders of the Board. In response to the Board's remands, additional records of VA treatment were added to the record and the Veteran was provided VA examinations to determine the nature and etiology of the claimed shortened right lower extremity. A VA expert medical opinion addressing whether the Veteran's service-connected low back disability caused or aggravated the claimed condition was also added to the record in May 2013. The case was then readjudicated in a January supplemental statement of the case (SSOC). Therefore, VA has complied with the remand orders of the Board. Following the November 2011 remand, the Veteran was physically examined by a VA physician in December 2011. Although the Board's remand instructions ordered that the VA physician should address the etiology of the claimed shortened right leg, the VA examiner diagnosed a right knee strain and the examination focused on the nature and etiology of the right knee disability. The examiner opined that the Veteran's claimed right knee condition was aggravated by the service-connected chronic back condition and did not address the issue currently before the Board, i.e. whether service connection is warranted for a chronic shortening of the right leg. Therefore, the findings of the December 2011 VA examination are not pertinent to the appeal before the Board, though a claim for service connection for a right knee disability was referred to the AOJ in the introduction section of this decision. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. ORDER Entitlement to service connection for a shortened right leg, to include as secondary to a service-connected chronic back condition, is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs