Citation Nr: 1330516 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 08-22 935A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for a left hamstring disability. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The Veteran served on active duty (AD) from September 1989 to March 1993. He also had additional service in the reserves, including active duty for training (ACDUTRA). This appeal to the Board of Veterans' Appeals (Board/BVA) is from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, denied his Appellant's claim of entitlement to service connection for a left hamstring disability. In April 2009, he testified at a videoconference hearing before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is of record. Subsequently, in February 2011, the Board remanded this claim for further development and consideration. In May 2013, the Board again remanded this claim for still further development, which since has been completed satisfactorily, allowing the Board to now decide this claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that where the remand orders of the Board are not complied with, the Board errs as a matter of law in failing to ensure compliance); but see, too, Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (another remand not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). A portion of the Veteran's records are in the "Virtual VA" system. Instead of paper, a highly secured electronic repository is used to store and review every document involved in the claims process. The use of this system allows VA to leverage information technology in order to more quickly and accurately decide claims for benefits. Because this appeal was processed as part of the Virtual VA system, any future consideration of this appellant's claims should take into consideration the existence of this electronic record. FINDING OF FACT A left hamstring disability is not shown to be related to the Veteran's active military service, including to any specific incident. CONCLUSION OF LAW A left hamstring disability is not the result of disease or injury incurred in or aggravated by his service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA and its implementing regulations impose obligations on VA to provide those claiming entitlement to VA benefits with notice and assistance upon receipt of a complete or substantially complete application. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2013). The notice requirements of VCAA require VA to (1) notify the claimant of the information or evidence necessary to substantiate the claim, (2) of the information or evidence the claimant is to provide, and (3) of the information or evidence that VA will attempt to obtain for him. The "fourth element" of the notice requirement requesting the claimant to also provide any evidence in his possession pertaining to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). The United States Court of Appeals for Veterans Claims (Court/CAVC) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim: (1) Veteran status; (2) existence of a disability; (3) a connection between a Veteran's service and the disability; but also the "downstream" (4) degree of disability, i.e. disability rating; and (5) effective date. Ideally, VCAA notice should precede the initial adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it did not, or the notice provided was inadequate or incomplete, this timing error can be effectively "cured" by providing all necessary VCAA notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC) - such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). VCAA notices errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on a case-by-case basis. And as the pleading party attacking the agency's decision, the Veteran, not VA, has this burden of proof of not only establishing error, but, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of the claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Here, in a February 2007 letter, so sent prior to initially adjudicating this claim in August 2007, therefore in the preferred sequence, the RO provided advised the Veteran of the information and evidence needed to substantiate claims for service connection, as well as of the information and evidence he needed to submit versus that VA instead would obtain on his behalf. The notice also included information concerning how a downstream disability rating and effective date are assigned in the eventuality that service connection is granted. He therefore has received all required notice. The Board is also satisfied VA has made the required efforts to assist him with this claim, including by obtaining all relevant records and evidence. The file contains his service treatment records (STRs), service personnel records (SPRs), VA clinical records, his hearing testimony and other statements, and VA examination reports. When, as here, VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board remanded this claim in May 2013 to have the claims file, including a copy of the Board's remand, forwarded to the VA compensation examiner that had evaluated the Veteran in June 2012 for his hip and thigh conditions so that examiner could provide a supplemental opinion addressing the likelihood (very likely, as likely as not, or unlikely) the Veteran's current left hamstring strain is related or attributable to his military service or dates back to his service. The June 2013 VA addendum medical opinion consequently obtained is adequate to address this determinative issue of causation. This supplemental medical nexus opinion considered all of the pertinent evidence of record, including the Veteran's personal statements and hearing testimony, and provided the required explanatory rationale for the opinion. So there was the required compliance with this remand directive. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (holding that an examination is adequate when it is based on consideration of the claimant's medical history and describes the disability in sufficient detail so the Board's evaluation of the disability is fully informed). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination and opinion has been met. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). For these reasons, the Board finds that VA has fulfilled its duties to notify and assist the Veteran with this claim. The Board therefore is proceeding with its adjudication of this claim. Standard of Review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of a matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (reasonable doubt to be resolved in Veteran's favor). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a Veteran 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 preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Governing Statutes, Regulations and Case Law Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for ay disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Also, with "chronic" disabilities, namely, those enumerated in 38 C.F.R. § 3.309(a), service connection may be established based on continuity of symptomatology. See generally 38 C.F.R. § 3.303(b). But muscle strain is not one of the conditions listed in 38 C.F.R. § 3.309(a), so C.F.R. § 3.303(b) does not apply. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that § 3.303(b) applies only to "chronic diseases" such as arthritis listed in 38 C.F.R. § 3.309(a)). Moreover, because muscle strain is not considered a "chronic disease" according to 38 C.F.R. § 3.309(a), any consequent disability also may not be presumed to have been incurred in service, even if initially manifested to the required minimum compensable degree of at least 10-percent disabling within the year after service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). The term "active military, naval, or air service" includes AD, any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury, though not also a disease, incurred or aggravated in the line of duty, or when a cardiac arrest or cerebrovascular accident occurs during such training. 38 U.S.C.A. §§ 101(22), (23), (24) (West 2002); 38 C.F.R. § 3.6 (2013). See also Brooks v. Brown, 5 Vet. App. 484, 485 (1993). VA's General Counsel has interpreted that it was the intention of Congress when it defined ""active service" in 38 U.S.C.A. § 101(24) to exclude INACDUTRA during which a member was disabled or died due to nontraumatic incurrence or aggravation of a disease process. VAOPGCPREC 86-90. Annual training ("summer camp") is an example of ACDUTRA whereas weekend drills ("weekend warrior") are INACDUTRA. 38 U.S.C.A. §§ 101(22), 316, 502, 503, 504, 505; 38 C.F.R. §§ 101(23), 3.6(c)(1), (d). To establish status as a "Veteran" based upon a period of ACDUTRA, a claimant must establish that he was disabled from disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA. 38 C.F.R. § 3.1(a), (d); Harris v. West, 13 Vet. App. 509, 511 (2000); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). The mere fact that a claimant has established status as a "Veteran" for purposes of other periods of service (e.g., the Veteran's prior period of AD) does not obviate the need for him to establish that he is also a "Veteran" for purposes of the period of ACDUTRA if the claim for benefits is premised on that period of ACDUTRA. Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998). Similarly, in order for a claimant to achieve "Veteran" status and be eligible for service connection for disability claimed during his inactive service, the record must establish that he was disabled from an injury, but not disease, incurred or aggravated during INACDUTRA. See Mercado- Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). Moreover, presumptive periods do not apply to ACDUTRA or INACDUTRA, only to AD, nor do the presumptions of soundness and aggravation. See Smith v. Shinseki, 24 Vet. App. 40 (2010); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Establishing entitlement to direct service connection generally requires: (1) competent and credible evidence of a current disability; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a relationship or correlation ("nexus") between the disease or injury in service and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Competency of evidence differs from its credibility and ultimate probative value or weight. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas 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 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). A Veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). Generally, the degree of probative value that may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the Veteran's claims file, although review of the file is not determinative of the opinion's worth or probative value. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually had examined the Veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Medical evidence that is speculative, general, or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). A physician's statement framed in terms such as "may" or "could" is not probative. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F. 3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the Veteran); but see, too, Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). In deciding this claim, the Board has reviewed all of the evidence in the Veteran's claims file, both his physical claims file and electronic ("Virtual VA") 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 him or obtained on his behalf be discussed in exhaustive 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); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Discussion In an August 1989 report of medical history completed by the Veteran at time of enlistment into service, he denied all listed medical problems and symptoms other than eye trouble, which is irrelevant to this claim for left hamstring disability. The corresponding medical examination report indicated no abnormalities other than a scar, which also is not relevant since it was not on his left leg or hamstring. He began serving on AD in September 1989, so the following month. In a January 1991 medical history form he completed for dental treatment purposes, he made no mention of a left hamstring muscle strain or any muscular abnormality. September 1991 findings show a diagnosis of left thigh muscle strain. He had presented with complaints of pain in his left hip, without a history of trauma. In a November 1991 medical history form he completed for dental treatment purposes, he denied all listed medical conditions and symptoms. In a December 1992 medical history form he completed for dental treatment purposes, he again denied all listed medical conditions and symptoms. The report of his March 1993 separation medical examination indicated that all bodily systems were normal, other than mention of a scar, which, as mentioned, is not relevant to this claim. Indeed, in the March 1993 medical history report he completed during that examination, prior to be evaluated, he denied all noted symptoms and medical conditions other than eye trouble, which also is not an issue in this appeal. His AD service ended that same month. In November 1993, he completed a report of medical history for the reserves. He denied all enumerated symptoms and conditions other than broken bones, residuals of which are not an issue in this appeal. A September 2002 medical examination report indicated no abnormalities. The associated medical history form indicated no relevant medical complaints. Service records from September 2004 document a left hamstring injury while pursuing a criminal and indicate the Veteran was on "reserve" status at the time. However, his personnel records show that no AD or ACDUTRA was performed during the period in question. Moreover, there is no indication the injury was incurred in the line of duty. He also testified during his videoconference hearing before the Board that his hamstring injury was sustained during AD while running on a track, and that he was treated by Dr. R. The September 2004 records show the Veteran had injured his hamstring while pursuing a criminal, and then had reinjured it while climbing some stairs, and was treated by a Dr. M. Therefore, this evidence is against finding the injury in September 2004 occurred during a period of AD. In August 2006, he was involved in a boating incident. During a training exercise in the Mediterranean, he was ejected from the boat into the water. Among other symptoms, he reported sensory motor deficits in all extremities. However, the main symptom appeared to be neck pain. After hospital treatment, there were no neurological sensory or motor deficits. Motrin was prescribed for body soreness. As late as January 2011, he signed a medical history form that he had completed for dental treatment purposes on which he denied all listed conditions. He indicated no health condition or concern in the section reserved for diseases and conditions not listed specifically. During the June 2012 VA examination, the examiner reviewed the claims file, obtained a history from the Veteran, and performed a physical evaluation. He then diagnosed left hamstring strain but concluded it was unrelated to the August 2006 boating incident in service. The examiner, however, provided no explanation to support this conclusion. Thus, the Board accords that opinion no probative weight and, indeed, is the reason the Board remanded this claim in May 2013 for a supplemental medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App 295, 304 (2008) (a medical opinion is not entitled to any weight if it contains only data and conclusions); Barr, 21 Vet. App. at 311 (holding that, once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided); see also Stefl v. Nicholson, 21 Vet. App. 120, 123-25 (2007) (VA's duty to assist includes providing an adequate examination when such an examination is indicated, and "a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to a doctor's opinion"); Miller v. West, 11 Vet. App. 345, 348 (1998) ("A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record."); Dennis v. Nicholson, 21 Vet. pp. 18, 22 (2007) ("The Court has long held that merely listing evidence before stating a conclusion does not constitute an adequate statement of reasons and bases." (citing Abernathy v. Principi, 3 Vet. App. 461, 465 (1992)). In June 2013, on remand, a VA compensation examiner consequently reviewed the claims file and in the requested addendum to the earlier opinion agreed the claimed strain was unrelated to the Veteran's service or any injury he sustained in service. The examiner observed the Veteran was diagnosed with a left hamstring strain in 2004 while pursuing a criminal and that he was treated for muscle spasms. The examiner also observed the Veteran was thrown off a boat in 2006 and treated for neck pain and neurological symptoms. As well, the examiner reviewed a report of previous hamstring complaints at Camp Robinson. He observed the Veteran had normal left hamstring strength on VA examination in June 2012. There was no radiographic evidence of a severe muscle injury of the type that would cause long-term symptoms. The examiner asserted that muscle strain was a self-limiting condition and, for that reason, the Veteran's current complaints were unrelated to complaints and/or injuries in 1991, 2004, and 2006. The Veteran has not presented any countervailing evidence refuting this VA compensation examiner's unfavorable conclusions. The Board accords the June 2013 VA medical opinion a lot of probative weight, especially since it is uncontroverted, but also because it is premised on a review of the record in its entirety and provides the required articulation of the underlying rationale. Nieves-Rodriguez, 22 Vet. App. at 302-04; Prejean, 13 Vet. App. at 448-9 (holding that factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion). In contrast, the Board finds the Veteran's unsubstantiated lay assertions regarding the origins of his alleged left hamstring disability of little-to-no probative weight in comparison. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998) (in adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence); see also Jefferson v. Principi, 271 F.3d 1072, 1076 (Fed. Cir. 2001) (recognizing the Board's inherent fact-finding ability). As already conceded, he is competent to report symptoms readily apparent to him through his senses. See, e.g., Layno, supra. And the Board finds no reason to doubt his assertions at face value. However, while he is competent to report his left thigh symptoms, he is not competent to also provide a probative opinion regarding the cause or etiology of his claimed muscle strain, especially in relation to any current disability, for although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, an alleged muscular disability, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer)." The VA examiner's unfavorable opinion is bolstered by the fact that the Veteran did not report left thigh or hamstring problems in all of the reports of medical history he completed after each alleged injury. Because there is no nexus between any present left hamstring disability and service, service connection for this claimed disability must be denied. 38 C.F.R. § 3.303. The record contains only one probative (competent and credible) opinion regarding the Veteran's alleged left hamstring disability. That opinion is against the claim. In situations such as this, when the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Alemany, supra. ORDER Service connection for a left hamstring disability is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs