Citation Nr: 1330746 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 10-05 000 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to service connection for restless leg syndrome. 2. Entitlement to service connection for a lumbar spine disorder. 3. Entitlement to service connection for a right shoulder disorder. 4. Entitlement to service connection for a right ankle disorder. 5. Entitlement to service connection for a left ankle disorder. 6. Entitlement to service connection for erectile dysfunction. 7. Entitlement to service connection for residuals of a fractured pelvis, to include a bilateral hip disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from May 1983 to May 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. The July 2009 rating decision also denied service connection for bilateral hearing loss, left hand and finger numbness, a sinus condition, and gastroesophageal reflux disease (GERD). In July 2009, the Veteran entered a notice of disagreement as to the denial of all service connection issues with the exception of bilateral hearing loss and left hand and finger numbness. Thereafter, in November 2009, a statement of the case addressing the remaining nine service connection issues was issued and the Veteran perfected his appeal with respect to such issues with a timely January 2010 substantive appeal. In April 2011, the RO granted the Veteran's claims for service connection for a sinus condition and GERD. As the April 2011 decision represents a full grant of the benefits sought with respect to these issues, these matters are no longer before the Board for consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977). In June 2010, the Veteran testified at a hearing before a Decision Review Officer (DRO) at the RO. A transcript of the hearing has been associated with the claims file. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the Virtual VA claims file does not reveal any additional documents pertinent to the claims on appeal. The issues of entitlement to service connection for a right ankle disorder and erectile dysfunction are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. For the entire appeal period, the Veteran does not have a current diagnosis of restless leg syndrome. 2. For the entire appeal period, the Veteran does not have a current diagnosis of a lumbar spine disorder. 3. For the entire appeal period, the Veteran does not have a current diagnosis of a right shoulder disorder. 4. For the entire appeal period, the Veteran does not have a current diagnosis of a left ankle disorder. 5. For the entire appeal period, the Veteran does not have a current diagnosis of residuals of a fractured pelvis, to include a bilateral hip disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for restless leg syndrome have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. The criteria for service connection for a lumbar spine disorder have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 3. The criteria for service connection for a right ankle disorder have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 4. The criteria for service connection for a left ankle disorder have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 5. The criteria for service connection for residuals of a fractured pelvis, to include a bilateral hip disorder, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA 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. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between a Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits. With regard to the claims decided herein, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a March 2009 letter sent prior to the issuance of the initial rating decision in July 2009 advised the Veteran of the evidence and information necessary to substantiate his service connection claims as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, the March 2009 letter advised him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. Relevant to the duty to assist, the Veteran's service treatment records and Tricare treatment records have been obtained and considered. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. The Board observes that the Veteran has not been afforded a VA examination and/or opinion in connection with the claims decided herein. However, such is not necessary to decide these claims. Specifically, as will be discussed below, the evidence of record does not establish that the Veteran has a current diagnosis of restless leg syndrome, a lumbar spine disorder, a right shoulder disorder, a left ankle disorder, and/or residuals of a fractured pelvis, to include a bilateral hip disorder, or persistent or recurrent symptoms of any such disorder. In this regard, the clinical evidence of record is unremarkable for any present complaints, treatment, or diagnoses referable to these claimed disorders. As will be discussed further herein, while the Veteran is certainly competent to describe symptoms associated with such alleged disorders, the Board finds that such reports are not credible as they are outweighed by the remainder of the evidence of record, to include contemporaneous medical reports. Therefore, as there is no evidence of a current diagnosis or persistent or recurrent symptoms of these claimed disabilities, the Board finds that examinations and opinions are not warranted. See 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006); Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (discussing the circumstances when a VA examination and opinion are required). Additionally, in June 2010, the Veteran was provided an opportunity to set forth his contentions during the hearing before a DRO. In Bryant v. Shinseki, the Court held that 38 C.F.R. § 3.103(c)(2) requires that the RO DRO or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the June 2010 hearing, the DRO enumerated the issues on appeal. The Veteran was asked to describe his the nature of symptoms and how they began. The Veteran was also asked where he received treatment and whether he had sought treatment for his claimed disabilities. Therefore, not only was the issue "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. Id. at 497. As such, the Board finds that, consistent with Bryant, the DRO complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claims based on the current record. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claims. II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including arthritis, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In some cases, service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. However, the United States Court of Appeals for the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). To the extent that the Veteran does not have a disease recognized as chronic under 38 C.F.R. § 3.309(a), the provisions of 38 C.F.R. § 3.303(b) pertaining to continuity of symptomatology are inapplicable. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Veteran contends that his restless leg syndrome began during service and that his lumbar and bilateral hip pain were related to an in-service bicycle accident. He reported that he had injured his left ankle while playing sports at the service academy. The Veteran also contends that he began having right shoulder pain in the late 1990s after coaching baseball. Therefore, he alleges that service connection is warranted for such disorders. Service treatment records indicate that, in January 1991, the Veteran was struck by a motor vehicle and suffered a pubic symphysis diastasis and a right Bennett's fracture (thumb). A July 1993 summary indicated that the Veteran continued to have back and leg pain as a result of this motor vehicle accident. Multiple complaints of right shoulder pain and an assessment of acromioclavicular (AC) joint arthrosis were noted 2002 although it does not appear that arthritis was found in an April 2002 X-ray. An October 2002 service discharge examination found the Veteran's spine and lower extremities to be normal. Post-service treatment records are negative for any complaints, treatment, or diagnoses referable to the Veteran's legs, lumbar spine, left ankle, right shoulder, pelvis, and/or bilateral hips. During a June 2010 DRO hearing, the Veteran testified that he had fractured his pelvis and injured his back during his 1991 motor vehicle accident and that he self-treated for his symptoms. He further stated that his right shoulder was a result of pitching when he couched baseball. He injured his left ankle while participating in sports at the service academy, reported in-step pain during service and sprained his right ankle "between 10 and 15 times" during service. His wife complained that he kicked her routinely at night and he was prescribed medication during service for these symptoms. Pertinent to a claim for service connection, such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the Court held that the requirement of the existence of a current disability is satisfied when a Veteran has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, 26 Vet.App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a Veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Under applicable regulation, the term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1. See also Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995). The Board notes that a symptom, without a diagnosed or identifiable underlying malady or condition, does not, in and of itself, constitute a "disability" for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), vacated in part and remanded on other grounds sub. nom. Sanchez-Benitez v. Principi, 239 F. 3d 1356 (Fed. Cir. 2001). In the instant case, the probative evidence of record fails to demonstrate a current diagnosis of restless leg syndrome, a lumbar spine disorder, a right shoulder disorder, a left ankle disorder and/or residuals of a fractured pelvis, to include a bilateral hip disorder, at any point during the appeal period. While the Board has also considered the Court's holding in Romanowsky, supra, there is also no probative evidence of a recent diagnosis of disability prior to the Veteran's claim. In this regard, the Board notes that the Veteran is competent to report his own symptoms or matters within his personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In addition, laypersons may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (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). However, matters of a medical diagnosis for disabilities not capable of lay observation, such as those at issue here, are matters within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). In the instant case, while the Veteran indicated at his June 2010 DRO hearing that he had previously worked as an EMT (emergency medical technician) for several years, he stated that he did not have a medical background. Therefore, as the Veteran does not have the appropriate medical training and expertise to competently self-diagnose restless leg syndrome, a lumbar spine disorder, a right shoulder disorder, a left ankle disorder and/or residuals of a fractured pelvis, to include a bilateral hip disorder, the lay assertions in this regard have no probative value. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) ("[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (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). Additionally, with respect to the Veteran's assertions that he experiences persistent or recurrent symptoms associated with restless leg syndrome, a lumbar spine disorder, a right shoulder disorder, a left ankle disorder and/or residuals of a fractured pelvis, to include a bilateral hip disorder, the Board finds such statements to be not credible and, therefore, are assigned no probative value. In this regard, as indicated previously, the Veteran's post-service treatment records are negative for any complaints, treatment, or diagnoses referable to his legs, lumbar spine, left ankle, right shoulder, pelvis, and/or bilateral hips. While he testified to experiencing symptomatology associated with such disorders at his June 2010 DRO hearing, such statements are inconsistent with the contemporaneous evidence of record and made in connection with his claim for VA benefits and, thus are deemed not credible. 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). In the instant case, while the Veteran sought treatment after service for a wide variety of complaints, he never reported symptoms associated with his legs, lumbar spine, left ankle, right shoulder, pelvis, and/or bilateral hips. Moreover, he underwent routine physicals in December 2005, December 2007, and February 2010 and no complaints, findings, or diagnoses referable to his legs, lumbar spine, left ankle, right shoulder, pelvis, and/or bilateral hips were noted. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (ascribing heightened credibility to statements made to clinicians for the purpose of treatment); see also Williams v. Gov. of Virgin Islands, 271 F.Supp.2d 696, 702 (V.I.2003) (noting that statements made for the purpose of diagnosis or treatment "are regarded as inherently reliable because of the recognition that one seeking medical treatment is keenly aware of the necessity for being truthful in order to secure proper care"). Therefore, the Veteran's current statements, made in connection with his pending claims for VA benefits, that he has current disabilities of the legs, lumbar spine, left ankle, right shoulder, pelvis, and/or bilateral hips are inconsistent with the contemporaneous evidence and, therefore, are not credible. Consequently, the Board assigns no probative weight to such statements. The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C.A. § 1110. Thus, where, as here, the probative evidence indicates that the Veteran does not have a current diagnosis of restless leg syndrome, a lumbar spine disorder, a right shoulder disorder, a left ankle disorder and/or residuals of a fractured pelvis, to include a bilateral hip disorder for the entire appeal period, there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer, supra. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claims of entitlement to service connection for restless leg syndrome, a lumbar spine disorder, right shoulder disorder, a left ankle disorder, and/or residuals of a fractured pelvis, to include a bilateral hip disorder. As such, that doctrine is not applicable in the instant appeals, and his claims must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for restless leg syndrome is denied. Service connection for a lumbar spine disorder is denied. Service connection for a right shoulder disorder is denied. Service connection for a leg ankle disorder is denied. Service connection for residuals of a fractured pelvis, to include a bilateral hip disorder, is denied. REMAND With respect to the issues remaining on appeal, the Board finds that a remand is necessary in order to ensure that there is a complete record upon which to decide the Veteran's claims for service connection for a right ankle disorder and erectile dysfunction so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Specifically, the Board finds that a VA examination is necessary in order to determine the nature and etiology of the Veteran's claimed right ankle disorder and erectile dysfunction. In this regard, service treatment records indicate that the Veteran sustained a right ankle sprain in May 1982 and that accompanying X-rays were negative for a fracture. Post-service clinical evidence documents the Veteran's complaints of right ankle pain for the past two months in February 2010. Additionally, the Veteran has alleged that his in-service complaints of erectile dysfunction have resulted in his current erectile dysfunction. In this regard, service treatment records document the Veteran's complaints of erectile dysfunction as well as his prescription for Viagra. Post-service treatment records reveal an assessment of impotency in December 2007 and complaints of testicular pain and numbness of the penis in February 2010. Therefore, the Veteran should be afforded a VA examination so as to determine the current nature and etiology of his claimed right ankle disorder and erectile dysfunction. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded an appropriate VA examination to determine the nature and etiology of his claimed right ankle disorder and erectile dysfunction. All indicated tests and studies should be undertaken. The claims file, including a complete copy of this remand, must be made available for review of the Veteran's pertinent medical history. The examiner is asked to furnish an opinion with respect to the following questions: a) Identify all diagnoses related to the Veteran's right ankle disorder and erectile dysfunction. The examiner should identify all such disorders that have been present at any time since March 2009. (b) For each diagnosed disorder, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that such disorder is related to the Veteran's military service, to include a right ankle sprain in May 1982 and/or his complaints of erectile dysfunction beginning in July 1993. The examiner should specifically consider the documented in-service complaints pertaining to the right ankle and erectile dysfunction. In addition, the examiner should consider the undated post-service treatment not which stated that the Veteran's "testosterone level was normal and that it was difficult for the provider to explain these results on the basis of a remote bike trauma." In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements. The rationale for any opinion offered should be provided. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ______________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs