Citation Nr: 1332181	
Decision Date: 10/17/13    Archive Date: 10/21/13

DOCKET NO.  07-29 114	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUES

1. Entitlement to service connection for osteoarthritis, lumbar spine (claimed as low back pain). 

2. Entitlement to service connection for osteoarthritis, left foot. 

3. Entitlement to service connection for osteoarthritis, right foot. 

4. Entitlement to service connection for degenerative joint disease, left knee. 

5. Entitlement to service connection for degenerative joint disease, right knee. 

6. Entitlement to service connection for bilateral eye disability. 

7. Entitlement to service connection for a left thigh disorder, other than verrucae acuminata (wart-like skin condition) and resulting surgical scars. 

8. Entitlement to service connection for a right thigh disorder, other than verrucae acuminata (wart-like skin condition) and resulting surgical scars. 

9. Entitlement to service connection for disability of the left hip. 

10. Entitlement to service connection for disability of the right hip. 

11. Entitlement to service connection for a scar on the forehead. 


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

M. Zawadzki, Counsel


INTRODUCTION

The Veteran served on active duty from October 1954 to August 1958. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in February 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.

In September 2007, the Veteran requested a hearing before a Decision Review Officer (DRO) at the RO.  This hearing was scheduled for January 2008; however, the Veteran cancelled his hearing request.  There are no outstanding hearing requests of record.  

In a March 2008 rating decision, the RO granted service connection for verrucae acuminata (wart-like skin condition) of the groin and bilateral inner thighs, as well as surgical scars as residuals of verrucae acuminata of the groin and bilateral inner thighs.  The RO continued to deny service connection for left and right thigh conditions (as reflected in a March 2008 a supplemental statement of the case (SSOC)), and the Veteran has continued to appeal these claims.  In light of the March 2008 rating decision, however, the claims for service connection for left and right thigh disorders have been characterized as reflected on the title page.  

In April 2011, the Board remanded the claims to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development.  After completing additional development, the AMC continued to deny the claims (as reflected in a May 2012 SSOC), and returned these matters to the Board.  

The Board has reviewed the Veteran's Virtual VA file and finds that, other than the September 2013 Informal Hearing Presentation (IHP) from the Veteran's representative, it does not include any additional relevant documents.

The Veteran is 76 years old.  The Board has, on its own motion, advanced this case on the docket due to the Veteran's age.  38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2013).  

The decision granting service connection for a scar on the forehead is set for the below.  The remaining issues listed on the title page are addressed in the REMAND portion of the decision below and are REMANDED to the RO via AMC.


FINDINGS OF FACT

1.  All notification and development action needed to fairly adjudicate the claim decided below has been accomplished.

2.  Resolving all reasonable doubt in his favor, the Veteran has a current scar on the forehead which was incurred in service.  



CONCLUSION OF LAW

The criteria for the establishment of service connection for a scar on the forehead are met.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 3.303 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

In this decision, the Board will discuss the relevant law which it is required to apply.  This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions.  See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction).  The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts.




Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  The United States Court of Appeals for Veterans Claims (Court), in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), has held that the VCAA notice requirements apply to all elements of a claim.

Given the favorable disposition of the claim, the Board finds that all notification and development actions needed to fairly adjudicate this claim have been accomplished.  

The Merits of the Claim

The Veteran asserts that he has a scar on the forehead related to service.  In a May 2006 statement, he reported that he was involved in an accident when some equipment in the plane fell and hit him in the forehead, which left scarring.  

Service connection may be established for disability resulting from personal injury or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013).  Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

A three-element test must be satisfied in order to establish entitlement to service connection. Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement). Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013) (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004))). 

The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of the inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record.

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. Layno v. Brown, 6 Vet. App. 465 (1994). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when 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); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service-connected mental disorder and drowning which caused Veteran's death).

In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever).

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). 

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 

The only service treatment records associated with the claims file are records from hospitalization at Elmendorf Air Force Base (AFB) in November 1956 and April 1957.  The AMC/RO have attempted to obtain the Veteran's other service treatment records, but the RO was informed by the National Personnel Records Center (NPRC) in October 2006 that the Veteran's records were fire related and there were no service treatment records or Surgeon General's Office (SGO) records available.  In April 2011, the AMC requested the Veteran's service treatment records from the Records Management Center (RMC) in St. Louis; however, the RMC responded that the service treatment records were not at that facility.  

When service treatment records, VA records, or records from another government agency are missing, VA has a heightened duty to satisfy the duty to assist.  Under such circumstances, VA has a heightened duty "to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing the claim, and to explain its decision when the veteran's medical records have been destroyed."  Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (citing Russo v. Brown, 9 Vet. App. 46, 51 (1996)); see also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).  The Board's analysis of the Veteran's claim has been undertaken with these heightened duties in mind.  

The available records from the Veteran's in-service hospitalizations make no mention of an injury to the forehead or a forehead scar.  

However, VA scars examination in May 2011 revealed a vertical scar on the forehead between the eyebrows.  The scar was described as thin and barely visible, though slightly hypopigmented.  The date of injury or infection causing the scar was noted to be active duty.  In describing the etiology of the scar, the examiner noted the Veteran's report that something fell off a piece of equipment and struck him between the eyes.  He stated that he had had a few stitches following this injury.  He denied any residual effects and stated that his scar was almost gone.  Examination of the forehead scar revealed that it measured 0.1 cm. by 1.2 cm. and was not painful.  The scar was described as superficial and examination revealed no signs of skin breakdown, inflammation, edema, keloid formation, abnormal texture, hypo- or hyper-pigmentation, or underlying soft tissue loss.  The skin was not indurated or inflexible; the scar contour was not elevated or depressed; the scar was not adherent to underlying tissue; and there were no other disabling effects.  The pertinent diagnosis was forehead scar, well-healed.  

The Veteran has a current scar on the forehead, as documented on VA examination in May 2011.  Thus, the first element of the successful service connection claim is satisfied.  

The Veteran has also described an in-service injury to the forehead when he was struck in the head when a piece of equipment fell.  The Veteran is competent to report in-service injury from being hit in the head by a falling piece of equipment.  See Grottveit v. Brown, 5 Vet. App. 91, 93 (1991).  The Board accepts the Veteran's assertions of in-service injury as credible.  

The only question remaining for resolution is whether there exists a nexus between the Veteran's current scar on the forehead and service.  While the May 2011 VA examiner stated that a medical opinion had not been requested, the examiner nevertheless noted in the examination report that the date of injury causing the scar was active duty.  In the section of the examination worksheet provided to discuss the etiology of the scar, he noted the Veteran's report of being struck in the head when something fell off a piece of equipment in service.  While it is not entirely clear whether the VA examiner was expressing his own opinion regarding the date of onset and etiology of the scar on the forehead, or was merely recording the reports from the Veteran, the Board is resolving any reasonable doubt on this matter in favor of the Veteran.  Accordingly, the May 2011 VA examination report supports a nexus between the Veteran's current scar on the forehead and service.  Additionally, there is no indication of any post-service injury which would have resulted in the Veteran's current scar on the forehead.  

Resolving any reasonable doubt in the Veteran's favor, the Board finds that service connection for a scar on the forehead is warranted.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  

The Board does not express any opinion as to the severity of the Veteran's scar on the forehead.  The assignment of a disability rating is to be considered separately from the matter of entitlement to service connection.  Ferenc v. Nicholson, 20 Vet. App. 58 (2006) (discussing the distinction in the terms "compensation," "rating," and "service connection" as although related, each having a distinct meaning as specified by Congress).   Therefore, the RO will later determine in the first instance an appropriate disability rating to assign the Veteran's scar on the forehead.


ORDER

Service connection for a scar on the forehead is granted, subject to the laws and regulations governing the award of monetary benefits.  


REMAND

Remand is required to obtain a new VA examination with opinion and outstanding treatment records.  

As discussed above, the AMC/RO has attempted to obtain the Veteran's service treatment records from the NPRC and the RMC.  In March 2007, the RO requested that the NPRC furnish inpatient clinical records for surgery to the back, groin, and thigh from March 1957 at Elmendorf AFB.  In April 2007, the NPRC provided the in-patient records from 1957.  In his March 2007 NOD, the Veteran reported that he had been treated for all of his claimed disabilities at the Elmendorf AFB hospital.  The AMC/RO should contact the Office of the Surgeon General to ascertain if records from the medical facility at Elmendorf AFB are available.  

Additionally, in the April 2011 remand, the Board discussed that, despite the RO's November 2006 formal finding that the Veteran's service treatment records were unavailable, it was not clear that further efforts to obtain the service treatment records would be futile.  The Board stated that, in order to facilitate the search for any further available service treatment records, the AMC/RO was to request that the Veteran more specifically identify the dates and circumstances of injuries resulting in and treatment for his claimed disabilities of the feet, knees, low back, legs, and hips while working on the flight line in Alaska.  

Although the AMC sent the Veteran a letter in April 2011 in which he was advised of documents he might be able to submit to substitute for service treatment records, the AMC did not ask the Veteran to give more specific information regarding his claimed in-service injuries and treatment.  As the claims are being remanded, he should be provided the opportunity to provide this information.  

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013).  Expedited handling is requested.)

1.  Request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his disabilities of the lumbar spine, feet, knees, thighs, hips, and eyes.  After acquiring this information and obtaining any necessary authorization, obtain and associate any outstanding pertinent records with the claims file or Virtual VA e-folder.  

A specific request should be made for:  (1) treatment records from the Dorn VA Medical Center (VAMC) dated since February 2008 and (2) treatment records from a rheumatologist at USC school of medicine (as referenced during private treatment in February 2010.  

The AMC/RO should also make a follow-up request for records from Dr. S.M. of Lexington Rheumatology, as initially requested in August 2011.  

If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified and the record clearly documented.

2.  Ask the Veteran to more specifically identify the dates and circumstances of injuries resulting in and treatment for his claimed disabilities of the feet, knees, low back, legs, and hips while working on the flight line in Alaska.  

3.  Contact the Office of the Surgeon General and ascertain if any records are available from the medical facility at Elmendorf AFB and request any available treatment records from that facility, dated between October 1954 and August 1958, other than the previously submitted records of in-patient treatment from November 1956 and April 1957.  

4.  If the Veteran provides any additional information regarding in-service treatment for his claimed disabilities which would allow for further requests for additional service treatment records, request those records from the appropriate entity.  

5.  After all available records have been associated with the claims file and/or Virtual VA e-folder, afford the Veteran a VA examination to determine the etiology of his claimed disabilities of the lumbar spine, feet, knees, thighs, and hips. 

The claims folder must be made available to the examiner for review of the case.  A notation to the effect that this record review took place should be included in the report of the examiner.

Based on examination of the Veteran and review of the record, the examiner must clearly identify all disorders of the lumbar spine, feet, knees, thighs (other than verrucae acuminata and scars), and hips which have been present at any time since May 2006 (when the Veteran filed his claim for service connection.  

In making this determination, the examiner should consider whether the Veteran has arthritis/degenerative joint disease (DJD) affecting these areas.  He or she should also consider the findings of symptoms of gout, a hammertoe deformity, Baker's cyst, and peripheral vascular disease (PVD) documented in the record and outlined below.  

In regard to EACH identified disorder, to include any arthritis, gout, hammertoe deformity, and/or PVD, the examiner must provide an opinion as to whether the disorder began during active service or is related to any incident of service.  

As indicated above, the examiner should review the record in conjunction with rendering the requested opinion; however, his or her attention is drawn to the following:

* A March 2001 X-ray of the lumbosacral spine revealed mild spondylosis deformens with moderate L3-4, L4-5, and L5-S1 disk space narrowing.  There was also moderate facet arthropathy at these levels.  

* A May 2001 MRI of the lumbar spine revealed degenerative stenosis at multiple levels.

* In July 2002 the Veteran had a right knee X-ray because of complaints of swelling and pain.  X-ray indicated that there might be a suprapatellar effusion present.  Joint spaces were well-preserved and there were no additional findings.  

* A May 2005 X-ray of the left foot revealed subluxation of the middle phalanx of the second toe laterally upon the head of the proximal phalanx, suggestive of ligamentous laxity or rupture, as well as milder arthritic changes in the mid and forefoot.

* In his May 2006 claim for service connection, the Veteran reported that he initially injured his feet, legs, hips, and knees while working on the flight line in Alaska.  

* In a May 2006 statement, the Veteran reported that he was continuously lifting, loading, and unloading planes, causing stress on his knees, feet, and hips in service.  He reported that he was presently having ongoing pain most of the time.  He also reported that he had surgery in service for his back and thighs, which continued to bother him with pain.  

* A March 2008 treatment record indicates that the Veteran presented with complaints of right knee pain.  The impression was right knee interosseous ganglion cyst, osteoarthritic changes, and Baker's cyst.  Another record from this month documents the Veteran's report of right knee pain since February.  He denied a history of injury to the knee.  

* A September 2008 private treatment record notes that the Veteran was developing symptoms of gout in the left foot.  

* In September 2008, the Veteran underwent right total knee arthroplasty for osteoarthritis.  In November 2008, he underwent debridement of the right knee wound with placement of a wound vac for dehiscence.  The impression on follow-up examination in January 2009 was right total knee arthroplasty with rheumatoid arthritis and non-healing wound. 

* In November 2009, the Veteran was diagnosed with right rigid hammertoe deformity with ulceration and PVD.  In December 2009, he underwent surgical correction of the right second toe hammertoe deformity.  

* A December 2009 noninvasive lower extremity arterial study revealed multi-segmental disease resulting in overall moderate to severe distal occlusive changes.  There was an element of inflow disease and also infrainguinal disease at multiple levels.  

* The report of June 2010 X-rays of the knees notes that the Veteran was status post right knee arthroplasty without loosening of the hardware.  The left knee was described as unremarkable without evidence of fractures or dislocations.  

* The report of June 2010 X-rays of the feet revealed erosions involving the distal aspect of the right and left first metatarsals with associated osteopenia suggestive of an inflammatory arthritis; no fractures.  

* On VA joints examination in May 2011, the examiner noted that the Veteran was noted to have erosive arthritis by rheumatology, and commented that there was currently active inflammatory arthritis.  The Veteran reported problems with his knees while he was on active duty, although he denied a history of acute trauma.  He described persistent knee pain since service.  The pertinent diagnoses were DJD of the left knee and DJD of the right knee status post arthroplasty. 

* On VA joints examination in May 2011, the Veteran described pain, stiffness, and tenderness of both hips, and stated that his condition affected the motion of the joint.  Examination revealed tenderness and limitation of flexion, bilaterally.  There was objective evidence of pain with active motion and following repetitive motion.  The pertinent diagnosis was no objective findings - bilateral hips.  The examiner described the problem associated with the diagnosis as a bilateral hip disability.  

* On VA spine examination in May 2011, the Veteran complained of low back pain/hip disability with a date of onset around 1957.  He denied a history of acute trauma, but said his work as a heavy equipment operator was taxing on his back and hips.  He described persistent pain in the back and hips continuing since 1957.  He reported being diagnosed with bilateral hip arthritis and arthritis in his lower back.  The VA examiner's diagnosis was lumbosacral spondylosis.  

* During the May 2011 VA feet examination, the Veteran reported that he used a cane for back, knee, hip, and foot problems.  He denied a history of acute trauma, but described pain in the whole foot, bilaterally.  The diagnosis was rheumatoid arthritis bilateral feet.  

In rendering the requested opinion, the examiner MUST consider the Veteran's reports of pain during and since service, as discussed above.  The examiner is advised that the Veteran is competent to describe symptoms of pain.  

The examiner is also advised that UNLESS ANY ADDITOINAL SERVICE TREATMENT RECORDS ARE OBTAINED ON REMAND, the only available service treatment records are those from in-patient treatment in November 1956 and April 1957.  The Veteran's service treatment records have otherwise been noted to be fire-related.  

All examination findings, along with a complete explanation for all opinions expressed, should be set forth in the examination report. 

6.  Conduct any other appropriate development deemed necessary.  Thereafter, readjudicate the claims, considering all evidence of record.  If any benefit sought remains denied the Veteran and his representative should be provided an SSOC.  An appropriate period of time should be allowed for a response.

The appellant has the right to submit additional evidence and argument on the matters that 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 of Veterans' Appeals 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. 2013).



______________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs