Citation Nr: 1334379 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 10-03 914 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a psychiatric disability, to include insomnia, as secondary to neurologic impairment of the left lower leg. 2. Entitlement to service connection for a right knee disability, to include as secondary to neurologic impairment of the left lower leg. 3. Entitlement to service connection for a right foot disability, to include as secondary to neurologic impairment of the left lower leg. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. J. N. Driever INTRODUCTION The Veteran had active service from September 1975 to September 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Gretna, Louisiana. The RO in New Orleans, Louisiana certified these claims to the Board for appellate review. In September 2012, the Board remanded these claims to the RO via the Appeals Management Center in Washington, D.C. At the time, the remand involved additional claims, including entitlement to service connection for left knee, left heel, and left foot disabilities. By rating decision dated March 2013, however, the RO granted these claims. They are thus no longer before the Board for appellate review. FINDINGS OF FACT 1. The Veteran does not currently have a psychiatric disorder, including one manifested as insomnia. 2. A right knee disability did not have its onset during active service and is not related to any in-service disease, event, or injury. 3. A right knee disability is not caused or aggravated by service-connected neurologic impairment of the left lower leg. 4. A right foot disability did not have its onset during active service and is not related to any in-service disease, event, or injury. 5. A right foot disability is not caused or aggravated by service-connected neurologic impairment of the left lower leg. CONCLUSIONS OF LAW 1. A psychiatric disability, to include one manifested by insomnia, was not incurred in or aggravated by active service and is not proximately due to or the result of service-connected neurologic impairment of the left lower leg. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2013). 2. A right knee disability was not incurred in or aggravated by active service and is not proximately due to or the result of service-connected neurologic impairment of the left lower leg. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2013). 3. A right foot disability was not incurred in or aggravated by active service and is not proximately due to or the result of service-connected neurologic impairment of the left lower leg. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act (VCAA) Upon receipt of a complete or substantially complete application for benefits, VA is tasked with satisfying certain procedural requirements outlined in the VCAA and its implementing regulations. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The U.S. Court of Appeals for Veterans Claims (Court/CAVC) has mandated that VA ensure strict compliance with these provisions of the VCAA. Quartuccio v. Principi, 16 Vet. App. 183 (2002). A. Duty to Notify The VCAA and its implementing regulations provide that VA is to notify a claimant and his representative, if any, of the information and medical or lay evidence not of record that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and his representative, if any, of which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf. 38 U.S.C.A. § 5103. These notice requirements apply to all five elements of a service-connection claim: (1) Veteran status; (2) existence of disability; (3) a connection between service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Ideally, the RO should provide the claimant VCAA prior to its initial unfavorable decision on the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason the RO does not, or provides the notice in a timely manner but it is inadequate or incomplete, the RO can effectively cure this error by providing any necessary VCAA notice and then readjudicating the claim in a statement of the case (SOC) or supplemental SOC (SSOC). In such a case, the intended purpose of the notice is not frustrated, rather preserved, and the claimant is given ample 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). The U.S. Supreme Court has made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, instead, must be judged on a case-by-case basis. As the pleading party attacking the agency's decision, the Veteran has the burden of proof of not only establishing error but also, above and beyond that, of showing how it is unduly prejudicial, meaning outcome determinative of his claim, i.e., more than harmless. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The RO provided the Veteran VCAA notice on his claims by way of letters dated in October 2007 and December 2012. The RO most recently readjudicated these claims in a February 2013 SSOC, curing any timing deficit associated with the second notice letter. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). The content of these letters reflects compliance with all pertinent statutory and regulatory provisions and case law. Therein the RO acknowledged the Veteran's claims, notified him of the evidence needed to substantiate them, identified the type of evidence that would best do so, notified him of VA's duty to assist and indicated it was developing his claims pursuant to this duty. The RO also provided him all necessary information on disability ratings and effective dates in the event service connection is granted. The RO identified the evidence it had requested and/or received in support of the Veteran's claims. Upon the Board's remand instructions, the RO inquired as to whether and for what disability the Veteran was receiving Worker's Compensation benefits. The RO identified the evidence that VA is responsible for obtaining and indicated it would make reasonable efforts to assist the Veteran in obtaining all outstanding evidence provided he identified the sources of it. The RO also noted that, ultimately, it was his responsibility to ensure VA's receipt of all pertinent evidence. The Veteran has received all essential notice, has had a meaningful opportunity to participate effectively in the development of these claims, and is not prejudiced by any technical notice deficiency along the way. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir., 2004). Neither he nor his representative asserts that VA failed to comply with VCAA's notice provisions. B. Duty to Assist VA also has a duty to assist a claimant in obtaining evidence necessary to substantiate a claim, including, in certain cases, by affording him a medical examination or obtaining a medical opinion, but such assistance is not required if there is no reasonable possibility that it would aid in substantiating the claim. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b), (c). In this case, the RO obtained all available treatment records, both service and post-service, in accordance with the Board's remand, afforded the Veteran VA examinations, and obtained opinions discussing the presence and etiology of the disabilities at issue in this decision. When 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). However, unless the claimant challenges the adequacy of the examination or opinion, the Board may assume that the examination report and opinion are adequate and need not affirmatively establish the adequacy of the examination report or the competence of the examiner. Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that, although the Board is required to consider issues independently raised by the evidence of record, the Board is still "entitled to assume" the competency of a VA examiner and the adequacy of a VA opinion without "demonstrating why the medical examiners' reports were competent and sufficiently informed"); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged). Id. Indeed, even when there is this challenge, the Board may assume the competency of any VA medical examiner, including even nurse practitioners, as long as, under 38 C.F.R. § 3.159(a)(1), the examiner is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. See Cox v. Nicholson, 20 Vet. App. 563 (2007). The 2013 VA examiner was not requested to, and did not provide, an opinion as to whether a psychiatric disorder or right knee or right foot disorder was related to the Veteran's service. However, the Veteran has not claimed that any of these conditions started in service or are related to service; rather, he claims service connection on a secondary basis. He has not reported experiencing psychiatric, right knee, and/or right foot symptoms starting in service and continuing since that time, and there is no medical evidence of record indicating that any of the claimed disabilities may be associated with service. Therefore, a medical opinion on the matter of direct service connection is not required. See 38 C.F.R. § 3.159(c)(4). In this case, neither the Veteran nor his representative asserts that there are any outstanding records that need to be obtained in support of these claims or that the reports of examinations are inadequate to decide these claims. Given the development that has occurred, it is difficult to discern what additional guidance VA could have provided the Veteran regarding the evidence needed to substantiate his claims. See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."). See also Reyes v. Brown, 7 Vet. App. 113, 116 (1994) and Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances when a remand would not serve any useful or meaningful purpose or result in any significant benefit to the Veteran and, instead, place even greater burden on VA's already limited resources). II. Analysis The Veteran seeks grants of service connection for a psychiatric disability, to include insomnia, a right knee disability and a right foot disability, all as secondary to service-connected neurologic impairment of the left lower leg. According to written statements he submitted in August 2007, November 2008 and August 2012, he developed mental health issues, including insomnia, and right knee and foot symptoms secondary to the neurological problems he experiences in his left leg. The Board acknowledges the Veteran's written statements of record, but considering them in conjunction with all of the medical information of record, finds that the preponderance of the evidence is against a grant of service connection for a psychiatric disability, to include one manifested as insomnia, a right knee disability, and a right foot disability on any basis. As discussed below, although the Veteran has insomnia, no medical professional has attributed that symptom to a psychiatric disability or otherwise diagnosed such a disability. In addition, although medical professionals have diagnosed right knee and foot disabilities, these disabilities did not have their onset during active service, are not related to any in-service disease, event, or injury, and are not caused or aggravated by service-connected neurologic impairment of the Veteran's left lower leg. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). To prevail on the issue of service connection, there must be competent evidence of: (1) a current disability; (2) in-service occurrence or aggravation of a disease or injury; and (3) a nexus between the in-service injury or disease and the current disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Once evidence is determined to be competent, its credibility must be evaluated. Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency, a legal concept focusing on whether testimony may be heard and considered, and credibility, a factual determination focusing on the probative value of the evidence); see also Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994) (in rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). 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 or authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). In certain instances, however, a lay statement may be deemed competent and adequate to support a claim for service connection by substantiating the occurrence of lay-observable events or a disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (layperson is competent to report disease with unique and readily identifiable features such as varicose veins); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. Sept. 14, 2009) (in a cause of death claim, holding that it was error to find "categorically" that a medical opinion was required to prove a nexus between the Veteran's service-connected mental disorder and his drowning death and likewise to reject categorically the claimant's testimony on this issue as not competent simply because she was a lay person); Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011) (holding that the Board erred in categorically rejecting lay evidence without analyzing and weighing it). Certain diseases are considered chronic, per se, such as arthritis. 38 U.S.C.A. § 1101 (West 2002); 38 C.F.R. § 3.309(a) (2013). If a chronic disease is shown in service, subsequent manifestations of the same disease, however remote, are to be service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). When a chronic disease is at issue, such as arthritis or any other disease enumerated at 38 C.F.R. § 3.309(a), see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), a claimant may establish entitlement to service connection based on a demonstration of continuity of symptomatology. Evidence of continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Continuity of symptomatology may be demonstrated by submitting evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between the present disability and the post-service symptomatology. Savage v. Brown, 10 Vet. App. 488, 495-97; see also Hickson v. West, 12 Vet. App. 247, 253 (1999) (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection). Service connection may 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). Service connection may be presumed for chronic disease such as arthritis if it is shown that a veteran served continuously for 90 days or more during a period of war or during peacetime after December 31, 1946, the condition manifested to a degree of 10 percent within one year from the date of discharge, and there is no evidence of record establishing otherwise. 38 U.S.C.A. §§ 1101, 1112(a), 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2013). Service connection may also be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310 (2013). A. Psychiatric Disorder, including Insomnia During service, including during various examinations conducted over two decades, the Veteran did not report or receive treatment for any mental health complaints, including insomnia. On retirement examination conducted in February 1995, the Veteran denied having had mental health problems, including difficulty sleeping, depression, excessive worry, memory loss, amnesia or nervous trouble of any sort. The examiner noted a normal psychiatric evaluation. The Veteran first reported insomnia in February 2007, during a VA outpatient visit. He indicated that he had been struggling with insomnia for a year, which he attributed to anxiety. He described it as coming and going. During two visits that month, medical professionals noted no prior depressive symptoms and negative depression and posttraumatic stress disorder screens and described the insomnia as a normal reaction to stress. Neither diagnosed a psychiatric disorder, including any manifested by insomnia. In February 2008, the Veteran again reported insomnia, which an examiner described as functional and stress related. This examiner also refrained from diagnosing a psychiatric disorder, including any manifested by insomnia. In January 2013 during a VA mental health examination, the Veteran reported sleep loss secondary to shooting pains and cramps in his left leg, but denied mental health treatment and medications. An examiner confirmed that the Veteran had no mental health disorder and has never had such a disorder. The examiner explained that the Veteran is experiencing episodic awakening and resulting sleep loss due to service-connected shooting pains and cramps in his left leg, but that there is an absence of any significant psychological or emotional discomforts or distresses related to his service-connected condition or associated with his sleep loss. The Veteran does not challenge the adequacy of the January 2013 opinion and has not submitted an opinion refuting that of the VA examiner. His assertions thus represent the only evidence of record diagnosing a psychiatric disability manifested by insomnia. The Veteran is competent to report that he experiences insomnia as an inability to sleep is lay observable, but because he has no special training or expertise in medicine, he is not competent to diagnose a psychiatric disability manifested by insomnia. See Jandreau, 492 F.3d at 1376-77; Buchanan, 451 F.3d at 1336; Barr, 21 Vet. App. at 312; Davidson v. Shinseki, 581 F.3d at 1313; Kahana, 24 Vet. App. at 434. Moreover, a mere symptom such as insomnia, alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a ratable disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). In the absence of competent and credible evidence that the Veteran has a psychiatric disability, including any manifested by the insomnia, that first presented in approximately 2006, the Board concludes that such condition was not incurred in or aggravated by active service and is not proximately due to or the result of service-connected neurologic impairment of the left lower leg. In the absence of a current disability, there can be no valid claim. A claimant is responsible for presenting evidence in support of his claim for benefits under laws administered by VA. VA is responsible for considering all such evidence, lay and medical. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA is to give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). With regard to this particular claim, the evidence is not in relative equipoise. The benefit-of-the-doubt rule is thus not applicable. B. Right Knee and Right Foot Disorders Post-service medical documents, including VA treatment records dated since 2007 and a report of VA examination conducted in January 2013, establish that the Veteran currently has right knee and foot disabilities, variously diagnosed, including as patellofemoral syndrome of the right knee and as plantar fasciitis, tenosynovitis, hammer toes, hallux valgus, claw foot and metatarsal deformities of the right foot. The question thus becomes whether these disabilities were incurred or aggravated in the Veteran's active service or were caused or aggravated by his service-connected neurologic impairment of the left lower leg. During service, the Veteran reported and received treatment for right knee and right foot complaints. Specifically, in March 1977, he reported pain around his right knee, lateral to the patella, while running during physical training. The examiner diagnosed a mild ligament strain and objectively confirmed the pain, but noted no other abnormalities. In October 1981, the Veteran reported pain on the top of his right foot after kicking a bar bell. The examiner noted a bruise on the top of the Veteran's right foot, ordered x-rays to rule out a fracture, noted that the x-rays were normal, and diagnosed a soft tissue injury. Thereafter, including during various examinations conducted through January 1995, the Veteran did not report or receive treatment for any additional right knee or foot complaints and no medical professional diagnosed a right knee or foot disorder. On retirement examination conducted in February 1995, the Veteran reported that he had had swollen or painful joints and cramps in his legs, but did not specifically identify his right knee of foot. (Service treatment records show extensive treatment for spine and left lower extremity complaints.) The Veteran indicated that he did not know whether he had had a trick or locked knee or foot trouble. The examiner noted a normal clinical evaluation of the Veteran's feet and lower extremities. During post-service outpatient treatment visits through 2005 and a VA examination conducted in February 2005, the Veteran discussed multiple medical conditions, including his left lower extremity, but never once mentioned his right knee or foot. The Veteran first reported right foot complaints in 2007 and, on several occasions since then, he has received treatment for various abnormalities of the right foot, including those previously listed. He first reported right knee complaints during his January 2013 VA general medical examination. On that date, he indicated that his feet began hurting in 2000, first his left than his right. He reported more severe left foot symptoms than those affecting his right foot. He also reported problems with his right knee "once in a while" that bothered him only half as much as his left knee. He indicated that he had no right knee assessment. The VA examiner is the sole medical professional who has discussed the etiology of the Veteran's right knee and foot disabilities. In the report of the January 2013 VA examination, he ruled out a relationship between these disabilities and the Veteran's service and service-connected neurological impairment of the left leg. He based this opinion on the following: (1) The Veteran had minimal patellofemoral and hammertoes on the right (as compared to the left); (3) He had a hallux valgus deformity on the right similar to that on the left, but without degenerative joint disease; (4) He had normal range of motion of the right knee with no pain, instability or deformity; (5) He reported no assessment of the right knee or foot; and (6) Medical records were silent for right foot and knee disabilities and hallux valgus. In short, the examiner's rationale appears to be based upon the fact the Veteran's right knee and right foot disorders were less severe that his left knee and left foot disorders (for which service connection has been granted on a secondary basis and for which he provided a positive nexus opinion). The Veteran does not challenge the adequacy of the January 2013 opinion and has not submitted an opinion refuting that of the VA examiner. His assertions thus represent the only evidence of record attributing his right knee and right foot disabilities to his service-connected neurological impairment of the left leg. Again, for the same reason noted above, the Veteran is not competent to offer an opinion on causation in this case. Although the Veteran received treatment for right knee and foot complaints during service, in the 1970s and 1980s, there is no competent and credible evidence that a right knee or foot disability had its onset during active service, is related to any in-service disease, event, or injury, including the documented right knee and foot complaints, or was caused or aggravated by the service-connected neurologic impairment of the left lower leg. As noted above, the Veteran has not claimed that any of these conditions started in service or are related to service. He has not reported experiencing psychiatric, right knee, and/or right foot symptoms starting in service and continuing since that time, and there is no medical evidence of record indicating that any of the claimed disabilities may be associated with service. A chronic right knee disorder or chronic right foot disorder was not diagnosed during service. The Board therefore concludes that right knee and foot disabilities were not incurred in or aggravated by active service and are not proximately due to or the result of service-connected neurologic impairment of the left lower leg. The evidence in each of these cases is not in relative equipoise. The benefit-of-the-doubt rule is thus not applicable. ORDER Service connection for a psychiatric disability, to include insomnia as secondary to neurologic impairment of the left lower leg, is denied. Service connection for a right knee disability, to include as secondary to neurologic impairment of the left lower leg, is denied. Service connection for a right foot disability, to include as secondary to neurologic impairment of the left lower leg, is denied. _____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs