Citation Nr: 1334409 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 09-20 729 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a bilateral knee disorder. 2. Entitlement to service connection for a skin disorder, also claimed as body rash and boils. 3. Entitlement to service connection for bilateral carpal tunnel syndrome. 4. Entitlement to service connection for a fracture of the left wrist. 5. Entitlement to service connection for a fracture of the right leg. REPRESENTATION Appellant represented by: Robert W. Gillikin, III, attorney WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran had active service from June 1965 to December 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Huntington, West Virginia. Notice of the decision was provided by the Roanoke, Virginia, RO in May 2009, and the Roanoke RO has assumed jurisdiction of this claim. The Veteran appeared at a videoconference hearing before the undersigned Veterans Law Judge in June 2011. A transcript of the hearing is of record. The claim was remanded in August 2011 for further development. The issues of entitlement to service connection for a bilateral knee disability, bilateral carpal tunnel syndrome, and for a skin condition, are addressed in the REMAND portion of the decision below and are REMANDED to the RO. FINDINGS OF FACT 1. There is clear and unmistakable evidence that the Veteran suffered from a left wrist fracture that pre-existed entrance to active duty. 2. There is clear and unmistakable evidence that the Veteran's left wrist fracture did not permanently increase in severity beyond the natural progression of the disease in service, or, was not aggravated by service. 3. There is clear and unmistakable evidence that the Veteran suffered from a right leg fracture that pre-existed entrance to active duty. 4. There is clear and unmistakable evidence that the Veteran's right leg fracture did not permanently increase in severity beyond the natural progression of the disease in service, or, was not aggravated by service. CONCLUSIONS OF LAW 1. The presumption of soundness is rebutted and a left wrist fracture pre-existed the Veteran's entry to active service. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. §§ 3.303, 3.304(b) (2012). 2. A left wrist fracture was not aggravated by the Veteran's active service. 38 U.S.C.A. §§ 1110, 1153, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306 (2012). 3. The presumption of soundness is rebutted and a right leg fracture pre-existed the Veteran's entry to active service. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. §§ 3.303, 3.304(b) (2012). 4. A right leg fracture was not aggravated by the Veteran's active service. 38 U.S.C.A. §§ 1110, 1153, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306 (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 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 the 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 AOJ decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a November 2008 letter, sent prior to the initial March 2009 rating decision, 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. The letter also informed him of the effective date requirements and how VA determines disability ratings as set forth in Dingess/Hartman. Relevant to the duty to assist, the Veteran's service treatment and personnel records, and VA treatment records have been obtained and considered. The Veteran has not identified any additional, outstanding records necessary to decide his pending appeal. The Board has also reviewed the Veteran's paperless Virtual VA claims file, noting no additional records. Additionally, he was afforded VA examinations in October 2011 in order to adjudicate his service connection claims. In this regard, the Board finds that the proffered opinions regarding whether the Veteran's pre-existing left wrist and right leg fracture were aggravated by service are sufficient to decide the Veteran's claim. The Veteran was also provided with a hearing related to his present claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, the VLJ explained the issues on appeal and inquired as to any outstanding evidence. And, the Veteran volunteered his treatment history and symptoms since service, thus fully describing the nature and severity of his disabilities. Accordingly, the Veteran is not shown to be prejudiced on this basis. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). The claims were remanded in August 2011 to obtain a VA examination. As such directives have been accomplished, the Board finds substantial compliance. 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)]. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of (i) the existence of a chronic disease in service during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or evidence of continuity of symptomatology. . Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, to include 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. A Veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). Only such conditions as are recorded in examination reports are considered as noted. 38 C.F.R. § 3.304(b). History of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304(b)(1). VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 03- 2003; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). In deciding a claim based on aggravation, after having determined the presence of a pre-existing condition, the Board must first determine whether there has been any measured worsening of the disability during service and then whether this constitutes an increase in disability. See Browder v. Brown, 5 Vet. App. 268, 271 (1993); Hensley v. Brown, 5 Vet. App. 155, 163 (1993). A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. 1153; 38 C.F.R. 3.306. Temporary or intermittent flare-ups of the pre-existing condition during service are not sufficient to be considered aggravation unless the underlying condition, as contrasted to symptoms, has worsened. Crowe v. Brown, 7 Vet. App. 238, 247- 48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 296-97 (1991). Accordingly, "a lasting worsening of the condition" -- that is, a worsening that existed not only at the time of separation but one that still exists currently -- is required. See Routen v. Brown, 10 Vet. App. 183, 189 n. 2 (1997); see also Verdon v. Brown, 8 Vet. App. 529, 538 (1996). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that although he fractured his left wrist and right leg prior to service while playing contact sports, his service duties including manual labor as a mechanic aggravated his left wrist and right leg pain and problems. With regard to his left wrist, service treatment records reflect that on June 1965 entrance examination, the Veteran noted that he had broken his left wrist and left hand at the ages of 16 and 17. In September 1965, the Veteran was admitted to the hospital for a right hand injury. It was noted that had a history of a fracture of the left wrist times two with no deformity or disability. On November 1968 separation examination, it was noted that the Veteran fractured his left wrist in 1963 and 1964, with no complications or sequalae. Physical examination of the left wrist and hand showed no deformity or loss of motion. With regard to the Veteran's right leg, service treatment records reflect that on June 1965 entrance examination, it was noted that the Veteran had broken his lower right leg at the age of 18. In September 1965, the Veteran was admitted to the hospital for a right hand injury. It was noted that had a history of a fracture of the tibia and fibula in 1964 with full recovery. On November 1968 separation examination, it was noted that the Veteran had fractured the right leg in 1964, with no complications or sequalae. Physical examination of the right leg showed no deformity or loss of motion. Post-service treatment records are negative for any pain or problems referable to the previous right leg fracture or left wrist fracture. On October 2011 VA examination, the Veteran reported that he sustained another fracture to his left wrist in 1985. No residuals related to the left wrist fracture were noted. He denied any residuals related to his right leg fracture. After reviewing the claims file, the examiner stated that there was no indication of any aggravation of the left wrist while in service, as shown on separation examination, or for more than a decade following service discharge. The same was true with regard to the right leg. In this case, the Board finds that there is clear and unmistakable evidence that the Veteran's left wrist fracture and right leg fracture pre-existed his entry into active service. In so finding, the Board finds it to be significant that the histories of fractures were noted on entrance examination. The Veteran has not denied the pre-existing nature of either condition. Thus, based upon the entrance medical history (which was later repeated on separation), the Board finds that there is clear and unmistakable evidence that the Veteran had a history of a left wrist and right leg fracture upon entry into service, and the presumption of soundness has been rebutted. However, with respect to rebutting the presumption of soundness, as noted above, the Board's inquiry does not end with a determination that the Veteran's right leg and left wrist factures clearly and unmistakably pre-existed service. The Board must also determine whether the Veteran's pre-existing disabilities clearly and unmistakably were not aggravated during service. The Board finds that there is clear and unmistakable evidence that the Veteran's pre-existing left hand and right leg fractures were not aggravated by service. In so deciding, the Board places weight on the service treatment records which clearly state on separation examination that there were no residuals related to the pre-existing right leg and left wrist fractures. The service records are entirely negative for any indication of aggravation. Moreover, the medical evidence of record during the period on appeal shows no left wrist or right leg disability or residuals related to previous fracture. On VA examination, the Veteran reported no symptoms that could be related to the pre-existing right leg and left wrist fracture. The Board finds that the October 2011 VA examiner's opinion that there was no service aggravation to be probative and persuasive because the examiner reviewed the entirety of the record and conducted full physical examination, finding no indication of current residuals related to service, or any indication that the pre-existing fractures had been aggravated by service. The Board notes that the Veteran has contended on his own behalf that his right leg and left wrist fractures were caused or aggravated by his military service. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to" and mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In the instant case, the Board finds that the question regarding the potential relationship between the Veteran's right leg and left wrist fractures and his military service to be complex in nature. See 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). Therefore, while the Veteran is competent to describe his symptoms and treatment for his right leg and left wrist fractures, and the observable symptoms, the Board accords his statements regarding the etiology of such disabilities little probative value as he is not competent to opine on such complex medical questions. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. Brown, 7 Vet. App. 134, 137 (1994). Moreover, the Veteran has only offered conclusory statements regarding the relationship between his right leg and left wrist fractures and his military service. By contrast, the VA examiner took into consideration all the relevant facts in providing the opinions reached. Therefore, the Board finds that the Veteran's contentions are outweighed by the competent and probative VA examiner's findings. Thus, because the Board finds that the preponderance of the evidence is against the Veteran's claim, findings that his right leg and left wrist fractures pre-existed his service and were not aggravated by his service, service connection for a right leg and left wrist fractures must be denied. ORDER Service connection for a fracture of the left wrist is denied. Service connection for a fracture of the right leg is denied. REMAND Additional development is necessary prior to further disposition of the claims for service connection for bilateral knee disabilities, bilateral carpal tunnel syndrome, and a skin disorder. With regard to a bilateral knee disability, the Veteran contends that his eventual need for knee replacements began with stress placed on his knees in service. He contends that as part of his job duties, he would often kneel on concrete or gravel and that that manual labor marked the onset of his knee arthritis. Service treatment records show that in March 1968, the Veteran experienced right knee weakness while playing football. He had old trauma. There was no limited motion. He was given an ace bandage and medication. In November 1968, the Veteran complained of a sore right knee. The knee was stable. On a November 1968 x-ray of one of the Veteran's knees showed no significant abnormalities. On November 1968 separation examination, it was noted that the Veteran had occasional painful knees after prolonged standing in cold weather. Post-service treatment records reflect that the Veteran had injured his knees on-the-job in 1996 when removing a foundation wall. A February 2011 VA examiner and an October 2011 VA examiner concluded that it was less likely than not that his bilateral knee disabilities were related to service, both concluding in essence that there was no indication of a chronic knee disability in service and thus, the likely cause of the Veteran's knee disabilities was the on-the-job injury rather than any service injury. However, the February 2011 VA examiner noted that the Veteran's knee disability was in part related to his obesity, and stated that the Veteran did also have weight problems in service. Therefore, that etiology must be taken into consideration in relation to the theory of service connection. And, neither of the VA examiners discussed the Veteran's contentions that working on his knees in service repetitively lead to later onset of arthritis, the Veteran's main contention. Such is significant because in June 2011, the Veteran's private physician opined that the Veteran had to crawl around on the ground and other surfaces without protective equipment for his knees which, over time and in different temperatures, led to excessive wear and tear to the knees. The examiner found it likely that the combination of those stressors contributed to the Veteran's need for a bilateral knee replacement. Because these contentions have not been specifically addressed by a VA examiner, but are the main contentions of the Veteran's claim, further opinion is necessary. With regard to bilateral carpal tunnel syndrome, the Veteran contends that while in service, he completed many repetitive wrist movements working as a mechanic which he felt contributed to his carpal tunnel syndrome. The service treatment records are negative for complaints related to his wrist. On October 2011 VA examination, the examiner concluded that it was less likely than not that the Veteran's carpal tunnel syndrome was related to his service, stating that there was no evidence of symptoms or treatment for carpal tunnel syndrome until 2004, and that his post-service occupation also involved manual dexterity. However, as with the issue of entitlement to service connection for bilateral knee disabilities, the examiner did not address the Veteran's contentions aside from the lack of documented treatment in the service records. Because the Veteran is competent to state that he experienced wrist pain following repetitive movements in service, a VA examiner should take into consideration those contentions when discussing the etiology of his carpal tunnel syndrome. With regard to a skin disability, the October 2011 VA examiner determined that the Veteran did not have any skin disability during the pendency of the appeal except for status post skin cancer, which was concluded to be unrelated to the Veteran's service. However, the examiner did not provide any rationale as to why the Veteran's skin cancer was unrelated to his service. Thus, in light of the service treatment records that show treatment for various skin conditions, including a history of boils, cellulitis on the hands, and a hive-like reaction to soap and, significantly, to the sun, clarification is necessary. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of any current bilateral knee disability. The Veteran's claims file must be made available to the examiner prior to the examination, and the examiner must review the entire claims file in conjunction with the examination. The examiner is requested to provide an opinion as to whether it is at least as likely as not (e.g., a 50 percent probability) that any current bilateral knee disability is related to the Veteran's period of service, discussing the Veteran's contentions that kneeling on hard surfaces, such as asphalt and gravel, repeatedly and in different weather conditions contributed to his later development of arthritis of the knees, as well as the two June 2011 private opinions that support the Veteran's contentions. The examiner should also discuss whether obesity in service caused or aggravated his bilateral knee disability. Complete detailed rationale should be provided for all provided opinions and conclusions. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his bilateral carpal tunnel syndrome. The Veteran's claims file must be made available to the examiner prior to the examination, and the examiner must review the entire claims file in conjunction with the examination. The examiner is requested to provide an opinion as to whether it is at least as likely as not (e.g., a 50 percent probability) that his current bilateral carpal tunnel syndrome is related to the Veteran's period of service, discussing the Veteran's contentions that the repetitive use of his wrists in completing mechanical work contributed to the later onset of his carpal tunnel syndrome, as well as the two June 2011 private opinions that support the Veteran's contentions. Complete detailed rationale should be provided for all provided opinions and conclusions. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of any current skin condition, to include status post skin cancer. The Veteran's claims file must be made available to the examiner prior to the examination, and the examiner must review the entire claims file in conjunction with the examination. The examiner is requested to provide an opinion as to whether it is at least as likely as not (e.g., a 50 percent probability) that his current skin condition, to include status post skin cancer, is related to the Veteran's period of service, including discussion of the relevant service treatment records showing numerous skin conditions. Complete detailed rationale should be provided for all provided opinions and conclusions. 4. 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 remain 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 appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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. 2012). ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs