Citation Nr: 1334767 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 08-30 211 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for right ankle disability. 2. Entitlement to service connection for left ankle disability. 3. Entitlement to service connection for right knee disability. 4. Entitlement to service connection for left knee disability. 5. Entitlement to service connection for chest pain. 6. Entitlement to service connection for back disability. 7. Entitlement to service connection for right foot disability (other than ankle). 8. Entitlement to service connection for night sweats. 9. Entitlement to service connection for a psychiatric disability (claimed as sleeping problems). 10. Entitlement to service connection for cervical spine disability. 11. Entitlement to service connection for right shoulder disability. 12. Entitlement to service connection for jaw pain. 13. Entitlement to service connection for hearing loss disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The Veteran served on active duty from August 1979 to January 1994. This case came before the Board of Veterans' Appeals (the Board) on appeal from May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Offices (RO) in Montgomery, Alabama. The Veteran requested a hearing before a member of the Board. He later cancelled his hearing and has not requested another hearing on appeal. Therefore, the hearing request is deemed to have been withdrawn and the Board may proceed with consideration of the claims without scheduling another hearing. See 38 C.F.R. § 20.702(e). The Board notes that, in addition to the paper claims files, there is a Virtual VA electronic claims file associated with the Veteran's claims. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims files or are irrelevant to the issues on appeal except as to the representative's appeal brief. The issues of entitlement to service connection for ankle disability, left knee disability, chest pain, back disability, night sweats, a psychiatric disability (claimed as sleeping problems), cervical spine disability, right shoulder disability, jaw pain, and hearing loss disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A chronic right knee disability is not shown at any time during the appeal period. 2. A chronic right foot disability is not shown at any time during the appeal period. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disability are not met. 38 U.S.C.A. §§1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 2. The criteria for service connection for a right foot disability are not met. 38 U.S.C.A. §§1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held the plain language of 38 U.S.C.A. § 5103(a) requires notice to a claimant pursuant to the VCAA be provided "at the time" or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement articulated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA satisfied its duty to notify. VA sent to the Veteran all required notice in an October 2006 letter, prior to the rating decision on appeal. VA further satisfied its duty to assist the Veteran. VA obtained the Veteran's service treatment records (STRs) along with all other relevant medical treatment records identified by the Veteran pertaining to his claimed right knee and right foot conditions. These records have been associated with the claims files. VA further afforded the Veteran an appropriate VA medical examination on the right knee and right foot. The United States Court of Appeals for Veterans Claims (hereinafter "the Court") has held that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that VA examination obtained in this case is adequate. It is predicated on a substantial review of the record and medical findings and considers the Veteran's complaints and symptoms history. Accordingly, VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the service connection issue addressed in this decision has been met. 38 C.F.R. § 3.159(c)(4). Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the Veteran's claim; the Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claims for service connection for right knee and foot disabilities. II. Claims for Service Connection for Right Knee and Right Foot Disabilities The Veteran seeks VA disability compensation for right knee and right foot disabilities. He filed a claim for VA compensation in October 2006 and reported "Knee Injury" with date of onset as July 21, 1977 and treatment from July 1977 to April 1981 at "Martin Community/Ft. Stewart." He also claimed a right foot injury incurred in July 1990, with treatment from July to September 1990 while on active duty. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Legal Criteria Initially, the Board notes the Veteran does not assert that his claimed problems are a result of combat. Therefore, the provisions of 38 U.S.C.A. § 1154(b) are not for application in this matter. Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. Service connection basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. 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). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in- service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); 38 C.F.R. § 3.303(b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has recently held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis shall be considered to have been incurred in or aggravated by service although not otherwise established during the period of service if manifested to a compensable degree within one year following service in a period of war or following peacetime service on or after January 1, 1947. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307(a) (3), 3.309(a). Right Knee and Right Foot Disabilities The preponderance of the evidence is against service connection for right knee and right foot disabilities. The Board observes that service treatment records show that the Veteran was seen for right knee injury in August 1977, assessed as right knee strain. An undated service treatment record shows synovitis of the right knee after complaining of pain to the patella of 4 days. The Veteran reported right knee pain of one week without injury in October 1984. There was no swelling and full range of motion. X-ray of both knees in October 1984 showed some cortical thickening over the area of pain. He was treated with Indocin and heating pad. The Veteran complained of right knee pain in December 1991 of two weeks duration. The assessment was "tendonitis." The Veteran reported bilateral knee pain in September 1992, assessed as strained muscle. Service treatment records show that, in August 1990, the Veteran complained of trauma to the mid metacarpal, one month, with continuing pain. X-ray showed no fracture or dislocations, there was a tiny benign appearing notch-like lucency in the distal medial aspect of the 1st metatarsal, assessed to be a normal variation and of no clinical significance. Report of retirement examination dated in November 1993 reflects history of bilateral knee pain. The examiner noted right knee injury in 1982 when the Veteran was diagnosed with contusion. Also, by history, the Veteran had dropped onto his right foot heavy objects, on two separate occasions, with contusion but no history of fracture. Clinical examination of the lower extremities and feet was normal. Post service medical records from Martin Army Community Hospital reflects that, in October 1995, the Veteran presented with complaints of right knee pain, without current trauma, history of "episode in 1978 (?) of injury-told he had 'torn some cartilage.'" It was noted that the Veteran was obese. The assessment was "arthritic knee." No x-ray study was performed. A December 1991 note reflects complaint of left knee pain and sore foot. The assessment was left leg pain. A health record dated in November 2006 reflects an assessment for "normal examination." Records from Martin Army Community Hospital are silent for complaints or findings of right foot disorder. Report of VA examination dated in July 2011 reflects history of right knee injury, sprain, in early 1980s during running as part of physical training. By history, the Veteran treated this injury with medication. The Veteran complained now of intermittent aching pain in his right knee, flaring 2 to 3 times a year, lasting up to 2 days. He currently treated, as needed, with Motrin. The Veteran also reported that he injured his right foot in July 1990 when a truck rail fell on his right foot. Per the Veteran, his foot was x-rayed and he was given Motrin along with a 2 day profile. A month later, a block of ice fell on his right foot and he received the same treatment. He denied any further treatment since that time for his foot. He reported flare-ups once a week and he does not know what causes him increased pain. Physical examination of the right knee and right foot was performed at the July 2011 examination. Despite the Veteran's complaint of pain, right knee X-ray showed well maintained joint space, no evidence of loose joint bodies or osteophytes, and smooth articular surfaces. Likewise, right foot x-ray showed "no evidence of recent or old trauma. The examiner noted that were no bone deformities and all joints appeared to be well maintained. The diagnoses were "resolved strain, right knee," and "resolved contusion, right foot." Significantly, the examiner opined that there was "no demonstrable disability arising from the patient's right hand, right knee or right foot at this time." As an initial matter, the Board observes that arthritis was not manifested within one year of the Veteran's retirement from active duty. As shown above, the Veteran's November 1993 retirement examination did not reveal any arthritis. Further, while the Veteran was noted have an arthritic knee in October 1995, this opinion was more than one year after his service separation. Moreover, this opinion which does not appear to have considered X-ray findings is inconsistent with subsequent X-rays that reveal a normal right knee during the July 2011 examination. Accordingly, service connection for arthritis on a presumptive basis is not warranted. The Board has considered the Veteran's statements and his original VA claim for compensation dated in October 2006. The Board finds that the Veteran is competent to report his symptoms such as pain and his self treatment with over the counter medication for his pain. Layno at 469 (1994); see also Falzone v. Brown, 8 Vet.App. 398, 405 (1995). Furthermore, lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d. 1372 (2007); see Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). However, the Board notes that mere pain, alone, without a diagnosed or identifiable underlying malady or condition does not in and of itself constitute a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Here, the Veteran has not identified any particular current disorder of the right knee or right foot. In fact, neither the lay nor the medical evidence of record demonstrates any current disability during the pendency of this claim. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See 38 U.S.C.A. § 1110, 1131; Degmetich v. Brown, 104 F. 3d 1328 (1997). In the absence of proof of a present disability due to disease or injury, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, the preponderance of the evidence is against the claims and, therefore, the claims for entitlement to service connection for the right knee and right foot disabilities are denied. There is no doubt to resolve as the evidence is not roughly in equipoise. Gilbert, supra. ORDER Service connection for right knee disability is denied. Service connection for right foot disability is denied. REMAND In disability compensation claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, there is indication in the record that an event, injury or disease occurred in service and that the Veteran has current symptoms. Thus remand for VA examinations is required. Specifically, the Board observes that the Veteran received treatment in service or reported symptoms involving the left knee, ankles, chest, back, night sweats, sleep problems, jaw pain, and hearing loss. Furthermore, the Board accepts that the Veteran is competent to report his symptoms and treatment. See Layno, supra. In regards to the Veteran's complaints involving the ankles, service treatment records show that, in April 1980, the Veteran complained of a knot on the left leg and left ankle as of the previous night with pain. Examination showed a non-tender 1 inch diameter mass on the left ankle. The assessment was past old scar tissue. In November 1980, the Veteran complained of twisting the right ankle. X-ray showed no evidence of fracture. There was mild soft tissue swelling around the lateral malleolus. A few days later the Veteran inversion sprain was assessed at the Physical Therapy Clinic. In March 1993, the Veteran complained of swollen ankle for one week with no pain. The assessment was grade I right ankle sprain. Report of retirement examination dated in November 1993 reflects normal clinical evaluation with no history for ankle disorder or injury. Service treatment records further reflect that the Veteran had left knee complaint of pain; that the Veteran sustained an injury to right shoulder from digging a culvert, diagnosis of right rotator cuff tear in 1982; that he was seen for complaints of neck and shoulder pain, assessed as right cervical/trapezius strain in 1990; that he was seen on several occasions for chest pain, without injury to the chest; that he was seen on several occasions for back pain beginning in 1980; that he was seen for painful jaw in 1989 assessed as TMJ (temporomandibular jaw )pain; complaints in December 1991 of insomnia and recurrent thoughts about his experience in Desert Storm; and history of hearing loss on retirement examination in November 1993. The Veteran suggested by filing his VA claim compensation claim that he continued to having problem related to the in-service events or symptoms. Therefore, in view of the above, VA examination is necessary to ascertain the existence and etiology of the claimed disorders, if shown, to ensure that VA has satisfied its duty to assist the Veteran. 38 C.F.R. § 3.159. The Veteran is advised that 38 C.F.R. § 3.655(a) provides that when entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination or reexamination, VA must take action in accordance with 38 C.F.R. § 3.655(b). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. Id. Under 38 C.F.R. § 3.655(b), when a veteran, without good cause, fails to report for a VA examinations in an original claim, the claim must be decided on the basis of the evidence of record. Accordingly, the case is REMANDED for the following action: 1. The RO should obtain the names and addresses of all medical care providers (VA, military, and private) who treated the Veteran for his claimed disabilities since December 2006. After securing any necessary release(s), the RO should obtain these records. 2. The RO or the AMC should notify the Veteran of the consequences for his failure to report for scheduled VA examinations 3. The RO or the AMC should schedule the Veteran for a VA examination by a physician (or physicians) with appropriate expertise to ascertain: (1) whether the Veteran has, or has had since October 2006, disability of the left knee, right or left ankle, chest, back, neck, right shoulder, or jaw; that is as likely as not (50 percent or greater probability) related to service to include any complaints or findings noted in the service treatment records; and (2) whether there is underlying pathology to account for the Veteran symptom of "night sweats" and, if so, whether any underlying disability is as likely as not (50 percent or greater probability) related to service to include any complaints or findings noted in the service treatment records. Also, the RO or the AMC should scheduled the Veteran for a VA audiological examination to ascertain whether the Veteran has a hearing loss disability as defined by VA and, if so, whether this is as likely as not (50 percent or greater probability) related to service, to include the Veteran's report of hearing loss in service and any objective findings for diminished hearing acuity. Lastly, the RO or the AMC should schedule the Veteran for a VA psychiatric examination to ascertain whether the Veteran has or has had since 2006 any psychiatric disability and, if so, whether this is as likely as not (50 percent or greater probability) related to service, to include the Veteran's complaints of sleep problems, depression, and anxiety noted in the service treatment records. The examiners should obtain a complete medical history for each disorder examined. The claims files and any pertinent evidence in Virtual VA that is not contained in the claims files must be made available to and reviewed by the examiners, and any indicated studies should be performed. A complete rationale for all opinions is required. The physician(s) should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge, etc., relied upon in reaching the conclusions. If an opinion cannot be expressed without resort to speculation, the physician(s) should so indicate and discuss why an opinion is not possible. 4. Then, the RO or the AMC should conduct any other development required and readjudicate the issues on appeal. If any benefit sought on appeal is not granted to the Veteran's satisfaction, the RO or the AMC should furnish to the Veteran and his representative a supplemental statement of the case and afford him the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. The Veteran 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). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs