Citation Nr: 1326319 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 07-04 239 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for pelvic tilt with one inch shortening of the right lower extremity. REPRESENTATION Appellant represented by: West Virginia Division of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION The Veteran had active duty service from April 1969 to April 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Veteran testified at a Board hearing at the RO in July 2007 before the undersigned Veterans Law Judge. A copy of the transcript of that hearing has been associated with the record on appeal. The issue was remanded for further development by the Board in June 2011 to afford the Veteran with a VA psychiatric examination regarding his ability to maintain gainful employment. The Veteran was afforded a VA examination in December 2011. The examiner provided the requested opinion and a review of the record indicates that the Board's directives were substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. The Veteran did not experience chronic symptoms of a pelvic or right lower extremity disability during service. 2. Symptoms claimed as a pelvic tilt with right lower extremity shortening are not causally or etiologically related to service. CONCLUSION OF LAW The criteria for service connection for a pelvic tilt with one inch shortening of the right lower extremity have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The record shows that through VCAA letters dated June 2005 and July 2010 the Veteran was informed of the information and evidence necessary to substantiate the claim for service connection. The Veteran was also advised of the types of evidence VA would assist in obtaining, as well as the Veteran's own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The United States Court of Appeals for Veterans Claims (Court) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. Further, the notice requirements apply to all five elements of a service connection claim: 1) veteran status, 2) existence of a disability, 3) a connection between the veteran's service and the disability, 4) degree of disability, and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA letter to the Veteran was provided in August 2007 prior to the initial unfavorable decision in January 2008. In this case, the Veteran was also advised of the criteria for rating a disability and those governing effective dates of awards in the August 2007 letter, prior to the most recent adjudication by the RO. The Board also finds that there has been compliance with the VCAA assistance provisions. The record in this case includes service treatment records, VA examination reports, and lay evidence. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case, and no further action is necessary. See generally 38 C.F.R. § 3.159(c). No additional pertinent evidence has been identified by the Veteran. The Veteran was provided a VA examination in September 2010. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Board notes that the examiner was provided with an accurate history, the Veteran's history and complaints were recorded, and the examination report sets forth detailed examination findings. Therefore, the examination reports are adequate to decide the claim of service connection. Thus, further examination is not necessary regarding the issue on appeal. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. § 3.103(c)(2) (2011) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the Board personal hearing, the Veterans Law Judge (VLJ) noted the elements of the claim that were lacking to substantiate the claim for service connection. The VLJ asked questions to ascertain the onset and etiology as well as the extent of any current symptoms or treatment for the disability. The Veteran was assisted at the hearing by an accredited representative from the Disabled American Veterans. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or his representative. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for service connection. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Service Connection - Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also 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). The Board is to consider all lay and medical evidence as it pertains to the issues. 38 U.S.C.A. § 7104(a) ("decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record"); 38 U.S.C.A. § 5107(b) (VA "shall consider all information and lay and medical evidence of record in a case"); 38 C.F.R. § 3.303(a) (service connection claims "must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence"). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Service Connection - Analysis The Veteran contends that he has a pelvic tilt and shortened right leg as a result of an injury or disease incurred during service. Specifically due to his treatment for an abscess and cellulitis of the right calf from July 3, 1969 until July 16, 1969. A February 1969 pre-induction report of medical history showed no complaints of lameness, bone, joint, or other deformity, arthritis, or rheumatism. The corresponding report of medical examination showed clinically normal lower extremities and musculoskeletal system. A July 1969 service treatment record shows incision and drainage performed on an infected area of the right calf. The infection continued to drain for several days with swelling of the leg. After almost two weeks there was marked improvement with almost no swelling. In August 1969, the Veteran was admitted due to multiple abscesses in the right leg. He reported a history of treatment in July 1969 for one abscess, but then noted additional abscesses appearing around the first abscess accompanied by pain. Physical examination found multiple abscesses. The examiner noted no lymphadenopathy and no limitation of motion of the leg. He diagnosed multiple abscesses of the right leg, probably staphylococcal in origin. The Veteran was treated with massive antibiotic IV, heat therapy, and bedrest, during which the abscesses spontaneously drained. An April 1971 separation report of medical examination showed clinically normal lower extremities and musculoskeletal system. A March 1976 private treatment record showed left leg measuring 93 cm and right leg measuring 90 cm. The examiner diagnosed a short right leg. The Veteran was afforded a VA examination in March 1977. The examiner noted that the Veteran had cellulitis of the right leg while in service in 1969 with an incision and drainage of the infection. He noted a one inch scar on the calf and found that the right leg measures 13 1/4 inches and the left leg measures 13 1/2 inches with no shortening. He did note some pain in the calf when walking a lot. The Veteran was afforded another VA examination in June 1986. The examiner noted that the Veteran walked without a limp, but stood with a pelvic list to the right. The left iliac crest appeared to be one inch higher than the left. The measurement of the right leg showed about one inch shortening of the right lower extremity. Examination of the right calf reveals the presence of a surgical scar over the posterior aspect of the right calf with no other abnormality. The examiner diagnosed a history of cellulitis of the right calf, shortening of the right leg - origin undetermined, and chronic back pain secondary to the shortening of the right leg and pelvic obliquity and slight lumbar scoliosis. During his hearing in July 2007, the Veteran testified that his right leg shortened due to the healing of the scars after treatment for an abscess during service. The Veteran stated that his legs were the same length prior to entry into service. The Veteran was provided a VA examination in September 2010. The examiner noted that the Veteran was treated for an abscess and cellulitis of the right calf during service. He also was treated in a hospital while on leave. The Veteran also asserted treatment for two weeks while at Camp Pendleton, but there are no records to support that assertion. The Veteran had no further treatment for any infection and no bony injury since his time in the military. The Veteran became aware of his right leg shortening in 1976. The Veteran reported current difficulty with dragging his left leg due to the shortening of the right lower extremity. The examiner measured the Veteran's left leg at 92 cm and his right leg at 88 cm. The examiner noted that the Veteran has a motor disorder, most likely neurological. The Veteran's gait was abnormal with short steps and a slower gait. The examination of the right lower extremity revealed a scar on the right posterior calf, but no bony abnormalities. Radiological reports showed arthritic changes of the lumbosacral spine, but did find a deformity in the right distal femur. The examiner noted that the right femur is slightly bowed with degenerative changes. The examiner found no bony defect of the right tibia or fibula (a finding that would suggest bone shortening from infection) and no shortening of the bony structure of the right leg from knee to ankle from the infection or its treatment during his military service. The examiner noted a shorted right lower extremity due to a right femur deformity of unknown cause. The short right lower extremity has caused a tilting of the sacral base to the right with resultant scoliosis. The examiner found no gait disorder related to the short right lower extremity as he believes the abnormal gait is related to a neurological disorder. The examiner noted that the pain would be related to the Veteran's scoliosis and manifested as lower back pain related to the chronic right short lower extremity. The examiner noted that treatment for a bone infection would have required protracted treatment with antibiotic and likely more extensive surgery than a surgical incision and drainage of the abscess. The structural short right lower extremity is likely as not a developmental condition or possibly a right femur injury, but is less likely as not related to the cellulitis and abscess formation or its treatment during service. The evidence does not show shortening of the right leg during service. The first indication of shortening of the right leg was found in 1976. Therefore, the Board finds that the Veteran did not have a chronic disability during service. An April 1971 separation report of medical examination showed clinically normal lower extremities and musculoskeletal system. The Board finds that the Veteran's more recently-reported history of continued symptoms of pain and a shortened right leg since active service is inconsistent with the other lay and medical evidence of record. Indeed, while he now asserts that his disorder began in service, in the more contemporaneous service separation examination, the examiner found no evidence of a spinal disability. His in-service history of symptoms at the time of service separation is more contemporaneous to service, so is of more probative value than the more recent assertions made many years after service separation. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding a Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements asserting different etiology); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board decision giving higher probative value to a contemporaneous letter the veteran wrote during treatment than to his subsequent assertion years later). The Veteran has not demonstrated that he has expertise in medical matters. While there is no bright line exclusionary rule that a lay person cannot provide opinion evidence as to a nexus between an in-service event and a current condition, not all medical questions lend themselves to lay opinion evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) referred to Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) for guidance. In footnote 4 of Jandreau, the Federal Circuit indicated that the complexity of the claimed disability is to be considered in determining whether lay evidence is competent. As to a nexus opinion relating any in-service abscess and treatment to his present disability, the Board finds that the etiology of the Veteran's shortened right leg and pelvic tilt is too complex an issue, one typically determined by persons with medical training, to lend itself to lay opinion evidence. The Veteran is certainly competent to testify as to symptoms such as leg pain, which are non-medical in nature; however he is not competent to render a medical diagnosis or etiology. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology that is not medical in nature); see also, Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (certain disabilities are not conditions capable of lay diagnosis). The Board finds that the preponderance of the competent evidence is against the Veteran's claim. The September 2010 examiner noted that the right femur is slightly bowed with degenerative changes. The examiner found no bony defect of the right tibia or fibula and no shortening of the bony structure of the right leg from the infection or its treatment during his military service. The examiner noted a shorted right lower extremity due to a right femur deformity of unknown cause. The examiner found no gait disorder related to the short right lower extremity as he believes the abnormal gait is related to a neurological disorder. The examiner specifically found that the Veteran's shortened leg is related to his femur, not his calf. The Veteran was not treated for a femur injury during service and has not asserted any such injury. The examiner also noted that treatment for a bone infection would have required protracted treatment with antibiotic and likely more extensive surgery than a surgical incision and drainage of the abscesses. He opined that the short right lower extremity is as likely as not a developmental condition or possibly a right femur injury rather than a residual of the cellulitis and abscess formation or its treatment during service. Continuity of symptomatology, even if present, cannot serve to provide the basis for a presumption of service connection because a under 38 C.F.R. § 3.303(b), continuity of symptomatology only applied in cases where the disability in question is a chronic disease listed at 38 C.F.R. § 3.309. See also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran's disability in this case is not such a disease. As the preponderance of the evidence is against the claims that disabilities of the low back and neck spine are related to an injury, disease, or event in service, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for pelvic tilt with one inch shortening of the right lower extremity is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs