Citation Nr: 1334748 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 08-10 621 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a right leg disorder, to include residuals of an in-service shrapnel injury. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Y. Hawkins, Counsel INTRODUCTION The Veteran served on active duty from September 1951 to June 1953. This matter comes before the Board of Veterans' Appeals ("Board") on appeal from an April 2007 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Roanoke, Virginia, which denied the claim. In March 2010, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of the hearing has been associated with the Veteran's claims folder. The Board has previously considered this claim. In July 2010, the Board remanded the claim for further development to afford the Veteran a VA examination. In August 2011 and April 2013, the issue was again remanded because the Board deemed previous examinations to be inadequate. The case has since been returned to the Board for further appellate processing. As there has now been substantial compliance with the Board's remand directives, the Board finds there is sufficient evidence to adjudicate the claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The most probative evidence of record demonstrates that the Veteran's current right leg disorder (diagnosed as chronic venous stasis and stasis dermatitis) is not causally related to a disease, injury or event in service. CONCLUSION OF LAW The Veteran's current right leg disorder was neither incurred in, nor aggravated by active duty service. 38 U.S.C.A. §§ 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 ("VCAA") With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 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 (2012). A.) Duty to Notify Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) ("Pelegrini II"), the United States Court of Appeals for Veterans Claims ("Court") held that VA 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; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. Element (4), the requirement of requesting that the claimant provide any evidence in his or her possession that pertains to the claim, was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini, effective May 30, 2008). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability and effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). In this case, VA essentially satisfied the notification requirements of the VCAA by means of letters dated April 2006, March 2007. The RO informed the appellant of the types of evidence needed in order to substantiate his service connection claim, the division of responsibility between claimants and VA for obtaining the required evidence, and requested that he provide any information or evidence in his possession that pertained to such claim. 38 U.S.C.A. §5103(a); 38 C.F.R. § 3.159(b). The March 2007 letter also satisfied the requirements of Dingess/Hartman and informed the Veteran of how VA determines the disability rating and effective date elements of a claim. B.) Duty to Assist The Board concludes that VA's duty to assist has been satisfied. The claims folder contains the Veteran's available service and post-service treatment records. Additionally, the claims file contains the Veteran's statements and testimony in support of his claim. The Veteran has not referenced any available outstanding records that he wanted VA to obtain or that he felt were relevant to his claim that has not already been associated with the claims folder. With regard to the VA examination reports, and as will be explained in greater detail below, although the Board observes that the examination reports dated October 2012 and March 2011 were inadequate, the Veteran was subsequently afforded a new VA examination in July 2013. Review of this report shows that the VA examiner reviewed the complete claims folder, including the previous examination reports, interviewed the Veteran regarding his reported history of in-service injuries, performed a comprehensive evaluation, along with a review of diagnostic test results, and provided sound reasons and bases for his conclusion that the Veteran's claimed disability was not the result of military service. Accordingly, the Board finds the examination report adequate upon which to base a decision in this case. The Board also concludes that reasonable efforts to develop evidence for the record have been made. Here, while the Veteran's service induction and separation examination reports are of record, as well as several reports of medical treatment, it appears that his service personnel reports are not of record. Under such circumstances, the Court has held that VA has a heightened obligation to explain its findings and conclusions and to carefully consider the benefit-of-the-doubt rule, which states that when there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). There is also a heightened duty to search for medical information from alternative sources in order to reconstruct the service treatment records. Jolley v. Derwinski, 1 Vet. App. 37, 39-40 (1990); Cuevas, supra. In addition, the Board is under a duty to advise the claimant to submit other forms of evidence, such as lay testimony. Dixon v. Derwinski, 3 Vet. App. 261, 263 (1992); Garlejo v. Derwinski, 2 Vet. App. 619, 620 (1992). However, the Court has also held that there is no presumption, either in favor of the claimant or against VA, arising from missing records. Cromer v. Nicholson, 19 Vet. App. 215 (2005) (the Court declined to apply an "adverse presumption" where records have been lost or destroyed while in Government control, which would have required VA to disprove a claimant's allegation of injury or disease in service in these particular cases). In this case, the RO requested service personnel records from the National Personnel Records Center ("NPRC") in August 2008. In November 2008, the NPRC responded that the Veteran's service personnel records had been destroyed in a 1973 fire at the St. Louis, Missouri, repository. By means of letters dated August 2008 and November 2008, the Veteran was informed about the unavailability of these service records and was asked to provide copies of any service records that may be in his possession. However, as noted above, there is no indication that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. VA has provided the Veteran with every opportunity to submit evidence and arguments in support of his claim, and to respond to VA notices. The Veteran and his representative have not made the Board aware of any additional evidence that needs to be obtained prior to appellate review of the Veteran's claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, however, because the Veteran's service treatment reports are of record and his service personnel records are not necessarily pertinent to the claim decided herein, the Board concludes that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of his claim. See Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, supra. Finally, as noted the Veteran was provided a personal hearing before the undersigned Veterans Law Judge (VLJ) in March 2010 to include on this issue that remains before the Board. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that VA personnel 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 issue and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ did not specifically note the bases of the prior determinations or the elements that were lacking to substantiate the claim. The VLJ asked specific questions, however, directed at identifying whether the Veteran met the criteria pertinent to his claims. In addition the Veteran volunteered information pertinent to the elements required for service connection in this case. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, neither the Veteran nor his representative has 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. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Accordingly, the Board finds that VA has fully complied with the notice and assistance requirements of the VCAA and its regulations. The appellant has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to the VCAA notice. The purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his appealed claim. Accordingly, the Board will proceed to a decision on the merits. II. Applicable laws and regulations. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Under 38 U.S.C.A. § 1154(a), VA is also required to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. In Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit ("Federal Circuit") held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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." (footnote omitted). However, the Court has held that "[t]he type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed." Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In order to establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) the in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"- the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also 38 U.S.C.A. § 1110 (West 2002). The Federal Circuit recently held that, for purposes of 3.303(b), where the veteran asserts entitlement to a chronic condition, but there is insufficient evidence of a diagnosis in service, the veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013), aff'g Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011). (emphasis added). For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by a showing of in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran contends that he sustained a shrapnel wound to his right leg in 1952 while serving in Korea when an artillery round exploded near him. He said that he was treated for the injury for approximately one month by a medic in the field. See Board hearing transcript, March 2010. Review of the Veteran's service treatment reports reveals no evidence of complaints of, treatment for, or a diagnosis of a right leg injury, to include a shrapnel wound. His June 1953 service separation examination revealed normal findings for the lower extremities. Post-service treatment reports show no evidence of complaints of, or treatment for a right leg disorder associated with a possible shrapnel wound. During a December 2000 clinical evaluation at the Washington, DC, VA Medical Center ("VAMC"), a brief neurological evaluation reveals no cyanosis or edema of the extremities, normal reflexes, strength and sensation, and a normal gait. During a June 2004 initial clinical evaluation with a VA primary care physician, the Veteran reported experiencing intermittent mild bilateral knee pain, left greater than right. However, he did not attribute the pain to any incident of service. Again, a neurological evaluation revealed a normal gait. During a routine follow-up VAMC visit in May 2008, the Veteran was found to have 1+ edema in the bilateral extremities and difficulty balancing on one foot. However, during a subsequent October 2008 podiatry clinic visit, in which the Veteran reported pain in the left third toe after hitting it on a table, an x-ray revealed evidence of osteopenia and bilateral hallux valgus deformity. In March 2011, the Veteran was afforded a VA compensation and pension examination, at which time, he reported experiencing numbness of the right leg and foot. On physical examination, the Veteran had an unsteady gait with weakness of the bilateral legs and some numbness of the plantar fasciitis aspect of both feet. There was well-healed scarring on the anterior aspect of the right leg, about 11 centimeters in length and non-tender to touch. There was also an oval scar about 3 centimeters in length and a three centimeter transverse right leg scar extending from mid-lateral towards the anterior surface of the tibia, which the examiner noted looked somewhat different than the other scars. It was also well-healed, non-tender and without drainage. There was dark discoloration of both legs, having the appearance of chronic venous stasis, and mild to moderate swelling of both legs and ankles. The motor function of the feet, ankles, legs, hips and thighs was satisfactory. X-rays of the bilateral knees were normal and an x-rays of the right hip, tibia and fibula revealed no bone abnormalities and no metallic foreign bodies. The examiner diagnosed the Veteran with (1)bilateral hallux valgus deformity of the feet, (2) skin changes of both legs possibly secondary to chronic venous stasis except for one scar of the mid-anterior lateral aspect of the right leg, and (3) unusual gait pattern when walking, with scissoring of the legs. The examiner, however, was unable to opine as to whether any of the Veteran's conditions were caused by service, and instead, referred the Veteran for evaluation by a dermatologist and a neurologist. As previously noted, the Board found this examination to be inadequate. In October 2012, the Veteran was afforded a VA muscle injury examination. Review of the examination report, however, showed that, despite indications in the body of the report, which appeared to show that the Veteran did not have a muscle injury from an in-service shrapnel wound, the examiner nonetheless concluded that the claimed condition was at least as likely as not incurred in, or caused by, the claimed in-service injury, event or illness. As noted above, however, the Board again found this examination to be inadequate. In July 2013, the Veteran was afforded a third VA examination. The clinician noted that the physical evaluation revealed findings essentially similar to a previous October 2010 dermatology examination (performed pursuant to a separate claim of entitlement to service connection for cold injury residuals), which demonstrated hyperpigmented patches of the ankles, as well as anterior and posterior lower legs. There was 1+ pitting edema of the bilateral ankles and erythematous scaly patches, as well as hyperpigmented excoriated plaques on the anterior tibia consistent with stasis dermatitis. Based on a complete review of the evidence of record, including the prior examination reports, as well as a history provided by the Veteran, the VA examiner opined that his claimed right leg disorder was less likely than not incurred in, or caused by his reported right leg injury. In this regard, he noted that all evidence to date suggested that the residual hyperpigmentation and associated scarring of the Veteran's bilateral lower extremities was the result of chronic venous stasis changes and intermittent active stasis dermatitis, and was not the result of a prior injury, including a wound to the lower leg from a round in service. Based on a review of the complete evidence of record, including the Veteran's personal statements, the Board concludes that the competent and probative evidence is against the Veteran's claim of entitlement to service connection for a right leg disorder, to include residuals of an in-service shrapnel injury. In this regard, the Board notes that a competent VA examiner, after reviewing the complete claims folder, including service and post-service treatment records, concluded that it was less likely than not that the Veteran's residual hyperpigmentation and associated scarring was the result of active duty service. In addition, there is no probative evidence showing that the Veteran was treated for a right leg wound during the more than 50 years since his active duty service, and that he did not report a right leg wound until applying for service connection in 2006. In this regard, the Court has held that a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service, which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Here, the amount of time that passed following service without any documented complaint or diagnosis of a right leg disorder is evidence that weighs against the Veteran's claim. In addition to the medical evidence, the Board has also considered the Veteran's personal statements and testimony in support of his claim. The Court has repeatedly held that a veteran is competent to describe symptoms of which he or she has first-hand knowledge. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). As leg pain is something the Veteran, as a layperson, is competent to report, his assertions regarding experiencing chronic pain since service are entitled to some probative weight. However, although the Veteran is competent to report his symptoms, he is not necessarily competent to attribute those symptoms to a specific underlying disease or injury during service. See McManaway v. West, 13 Vet. App. 60, 66 (1999) (holding that, where there is assertion of continuity of symptomatology since service, medical evidence is required to establish "a nexus between the continuous symptomatology and the current claimed condition"), vacated on other grounds sub nom. McManaway v. Principi, 14 Vet. App. 275 (2001); Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488 (1997). Additionally, in Clyburn v. West, 12 Vet. App. 296, 301 (1999), the Court held that continued complaints of pain after service do not suffice to establish a medical nexus where the issue at hand concerns etiology, and requires a medical opinion. In this case, the fact remains that the only probative medical opinion of record fails to relate the Veteran's current right leg disorder to military service. The Board finds the opinion of the 2013 VA examiner to be the most probative evidence of record as to the etiology of the Veteran's current disorder and outweighs the Veteran's assertions that his complaints of continuing right leg pain following service are related to a current right leg disability. Accordingly, although the Board is sympathetic to the Veteran's sincere belief that his right leg disorder is the result of service, it concludes that the preponderance of the evidence is against his claim of entitlement to service connection for a right leg disorder. In arriving at the decision to deny the claim, the Board has considered the applicability of the "benefit-of-the-doubt" rule. However, as there is not an approximate balance of evidence, that rule is not applicable in this case. See generally Gilbert, supra; see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). ORDER Entitlement to service connection for a right leg disorder, to include residuals of an in-service shrapnel injury, is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs