Citation Nr: 1326397 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 10-21 712 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for a back disability as secondary to the appellant's service-connected bilateral knee disabilities. 2. Entitlement to service connection for a right ankle disability as secondary to the appellant's service-connected bilateral knee disabilities. 3. Entitlement to service connection for a left ankle disability as secondary to the appellant's service-connected bilateral knee disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The appellant served on active duty from January 1953 to March 1957. These matters came to the Board of Veterans' Appeals, hereinafter the Board, from a June 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Subsequent to the perfection of his appeal, the appellant provided testimony at a September 2011 hearing before the undersigned Veterans Law Judge. A transcript of that hearing was prepared and has been included in the claims folder for review. The Board notes that when the claim was originally presented before the Board, the issues that were on appeal included entitlement to service connection for frostbite of the right and left lower extremities, frostbite of the right and left hand; tinnitus, the residuals of a right index finger injury, a back disability, hearing loss, disabilities of the left knee, type II diabetes mellitus, posttraumatic stress disorder (PTSD), and disabilities of the ankles. These matters were remanded in December 2011. In a September 2012 rating decision, the RO granted entitlement to service connection for frostbite, bilateral hands, assigning noncompensable ratings; frostbite, bilateral lower extremities, assigning noncompensable ratings; hearing loss, left ear, assigning a noncompensable rating; and posttraumatic stress disorder (PTSD), assigning a noncompensable rating effective October 23, 2008, and a 50 percent rating effective February 1, 2012. The grant of service connection for these issues constituted a full award of the benefits sought on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Neither the appellant nor his representative submitted a notice of disagreement as to the downstream elements of effective date or compensation level within the applicable time period. Thus, those issues are not in appellate status. Id. The claim was subsequently returned to the Board and, in February 2013, the Board issued a Decision/Remand. In that action, the Board granted service connection for osteoarthritis of the knees and flexor tenosynovitis. The Board also denied entitlement to service connection for diabetes mellitus, a chronic back disability, and bilateral ankle disorders. Both the ankle disabilities and the back disorder were denied on a direct basis. However, because consideration had not been given as to whether the appellant's bilateral ankle and back disabilities were proximately due to or aggravated by his now service-connected bilateral knee disabilities, these issues were remanded for additional development. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. A low back disability, to include lumbar degenerative disc disease and degenerative joint disease, has not been shown to have been caused by or aggravated by the Veteran service-connected bilateral knee disabilities. 2. A bilateral ankle disability, to include right and left calcaneal spurs, has not been shown to have been caused by or aggravated by the Veteran service-connected bilateral knee disabilities. CONCLUSIONS OF LAW 1. A low back disability, to include lumbar degenerative disc disease and degenerative joint disease, has not been shown to have been caused by or aggravated by the Veteran service-connected bilateral knee disabilities. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.310 (2012). 2. A bilateral ankle disability, to include right and left calcaneal spurs, has not been shown to have been caused by or aggravated by the Veteran service-connected bilateral knee disabilities. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA. As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter dated in October 2008 that provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal. The letters also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The evidence of record contains the Veteran's VA and private treatment records, and lay statements and testimony. The Veteran has also been provided VA examinations in connection with his claims. The Board has carefully reviewed the submitted statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims. In this case, the Veteran's service records were burned in the 1973 National Archives and Records Administration fire. He was notified of this in a July 2005 letter. Under such situations the Board has a heightened obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, the caselaw does not lower the legal standard for proving a claim of service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (wherein the Court declined to apply an "adverse presumption" where records have been lost or destroyed while in government control which would have required VA to disprove a claimant's allegation of injury or disease). For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Analysis Applicable law provides that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for certain chronic diseases, such as arthritis, when the disease is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) 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 disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995); 38 C.F.R. § 3.303(a). The existence of a current disorder is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (1997) (interpretation of 38 U.S.C.A. § 1110 and 38 U.S.C.A. § 1131 as requiring the existence of a present disorder for VA compensation purposes cannot be considered arbitrary and decision based on that interpretation must be affirmed); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). That a condition or injury occurred in service alone is not enough. There must be disability resulting from that condition or injury. In the absence of proof of a present disability, there can be no valid claim or the grant of the benefit. Rabideau v. Derwinski, 2 Vet. App. 141 (1992); see also McLain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the requirement that a claimant have a current disability before service connection may be awarded for that disability is also satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claims adjudication). Under § 3.303(b), an alternative method of establishing the second and/or third element is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a)). Continuity of symptomatology may establish service connection where a chronic disease under 38 C.F.R. § 3.309(a) shown as such in service or within the presumptive period, manifests at a later date. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required where the condition noted during service or the presumptive period is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. In this regard, the Board notes that lay persons may provide evidence of diagnosis and nexus under 38 U.S.C.A. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (vacating a decision that stated categorically that a valid medical opinion was required to establish nexus and that a lay person was not competent to provide testimony); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay evidence can be competent and sufficient to establish a diagnosis of the lay person is reporting a contemporaneous medical diagnosis); see also Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection). In addition, service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). It is the Board's responsibility to evaluate the entire record on appeal. 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, reasonable doubt will be resolved in each such issue in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. An appellant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the evidence must preponderate against the claim. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Alemany v. Brown, 9 Vet. App. 518 (1996). In this case, the Veteran contends that he is entitled to service connection for a low back disability and bilateral ankle disabilities as secondary to or aggravated by his service-connected bilateral knee disabilities. The Veteran underwent two VA physical examinations. The first was accomplished in March 2013 and the second one month later - in April 2013. The examinations were conducted by the same doctor. It is first noted that the examiner did not review the appellant's entire claims folder with medical reports/evaluations in conjunction with the first examination. He did accomplish this prior to the second examination. More importantly, upon completion of the examination and review, in the second examination it was found that right and left calcaneal spurs were less likely as not proximately due to his service-connected osteoarthritis of the left and right knees. The examiner explained that, given that the Veteran's ankles began hurting him 10 years ago, which was 45 years after he left service and considering that the ankles do not show signs of degenerative arthritis, it was less likely than not that his bilateral ankle pain was due to service, due to his service-connected knees, or worsened by his service-connected knees. The examiner also found that right and left calcaneal spurs were less likely as not aggravated by the Veteran's osteoarthritis of the left and right knees. With respect to the Veteran claimed back disability, the examiner found that the Veteran's lumbar degenerative disc disease and degenerative joint disease were less likely as not aggravated by his osteoarthritis of the left and right knees. The examiner explained that, given that his back began hurting him 2 years ago, which was 50 years after he left service and considering that the back does not show diffuse degenerative arthritis, it was less likely than not that his low back pain was due to service, due to his service-connected knees, or worsened by his service-connected knees. The examiner also found that the Veteran's degenerative disc disease and degenerative joint disease were less likely as not aggravated by is osteoarthritis of the left and right knees. Finally, the examiner included an opinion in which he stated that the claimed condition, which clearly and unmistakably existed prior to service, was clearly beyond its natural progression by an in-service injury, event, or illness. The second examination report generally mirrored the examination report that was completed following the first examination in March 2013. Upon review of these examination reports, the Board in May 2013 found that the provided VA examination reports were inadequate and did not provide the information needed in order to properly adjudicate the claim. Specifically, the Board found that (i) there was insufficient rationale and supporting explanation provided, (ii) with respect to the first examination, the examiner did not review the appellant's complete medical records including the claims file prior to examining the appellant, (iii) the examiner provided two different answers when he provided comments on how long the appellant had been removed from the military, and (iv) in the second examination report, the examiner specifically stated that there was a conflict with previous examination results but then failed to provide any indication as to what results he was referring thereto. As such, this matter was remanded so that complete and definitive opinions could be obtained. Upon remand, the Veteran claims file was provided to the examiner that conducted the prior VA examinations. The examiner provided an addendum reported dated in June 2013. The examiner indicated that the Veteran's claims file had been reviewed in connection with the supplemental report. The examiner stated that a review of the claims file had not changed his conclusions. With respect to the concerns expressed in the May 2013 Board remand, the examiner regretted his use of potentially confusing uses of the phrase "is less likely than yes" and "less likely as not" but indicated that there was no conflict in his opinion. He stated that the Veteran's osteoarthritic knees "are extremely unlikely to have caused either his bilateral calcaneal spurs or his rather confined spinal degenerative disease." With respect to the rational for his conclusions, the examiner supplemented his previous opinions by stating that "[t]he reality is that calcaneal spurs, commonly referred to as heel spurs, are often the result of the normal aging process, do not typically cause ankle pain, and do not generally result from knee osteoarthritis. There is no indication of ankle arthritis and thus one would need to conjecture that three unusual scenarios all occurred in this Veteran in order to state that the knees caused the heel spurs which cause the ankle pain. As you can plainly see, the likelihood is far less than 50% of this occurring and I would (not) even begin to calculate the odds of it occurring bilaterally." Regarding the back claim, the examiner also added that "[t]he reality is that part of the human condition is that as we age we develop degenerative osteoarthritis in our spines and in our weight bearing joints. We also gradually [lose] some of the elasticity in our tissues, including our intervertebral discs. This Veteran has done very well with only having back pain since the age of 77; this is actually unusual. Typically when we see secondary spinal arthritis due to a specific weight bearing altering condition, it does not take 50 years to manifest and when it does manifest it typically presents a diffuse degenerative disease. Thus, it is extremely unlikely that the osteoarthritis in his knees is what is causing his current back problems." Based on the foregoing, the Board finds that entitlement to service connection for degenerative disc disease and degenerative joint disease of the lumbar spine, as well as bilateral calcaneal spurs, is not warranted in this case on a secondary or aggravation basis due his service-connected knee disabilities. Here, the Veteran has been diagnosed with these disabilities. However, the VA examiner, who examined the Veteran and his claims file in connection with the claim, found definitively that such disabilities were not likely due to or aggravated by his service-connected knee conditions. In this regard, the Board finds that the objections expressed in the May 2013 remand were substantially addressed in the June 2013 addendum report. The examiner noted the current diagnoses related to the claims and addressed the etiology of the back disability along with the claimed bilateral ankle disorders. The examiner also opined that it was less likely as not that either disability was caused or aggravated his service-connected knee disabilities. As noted above, these conditions were previously denied on a direct basis in the February 2013 Board decision. Finally, the examiner provided additional rationale for his opinions. In this regard, the Board notes that the Court has found that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall v. West, 11 Vet. App. 268 (1998), violation when the examiner made the ultimate determination required by the Board's remand, because such determination "more than substantially complied with the Board's remand order"). The Board finds that the examination reports taken together reflect substantial compliance with the Board's previous remand requests. In addition, the Board notes that the Veteran has contended on his own behalf that his claimed disabilities are related to his service-connected knee disabilities. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts that the lay witness observed and is within the realm of his or her personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir. 2007) (noting that lay testimony may be competent to identify a particular medical condition). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, while VA must consider lay evidence, it may give it whatever weight it concludes the evidence is entitled to, and a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require VA to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010); see also See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J. concurring) ("the Board should avoid overbroad statements about the competence of laypersons and should carefully distinguish its treatment of lay testimony of symptoms and its analysis of lay competence on issues of diagnosis or causation"). Although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Board finds that the diagnosis and etiology of the Veteran's claimed back and ankle disorders involves complex medical questions that are beyond the competency of a layperson. The Board further finds that the question regarding the relationship between such disabilities and military service to be complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Therefore, the lay evidence of record is not probative on the question of etiology in this case. In summary, the Board concludes that the preponderance of the evidence is against the Veteran's claims and they must therefore be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a back disability, to include degenerative disc disease and degenerative joint disease, on a secondary basis, is denied. Service connection for a right ankle disability, including calcaneal spurs, on a secondary basis, is denied. Service connection for a left ankle disability, including calcaneal spurs, on a secondary basis, is denied. ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs