Citation Nr: 1335273 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 97-27 248A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a right leg disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from September 1950 to July 1952. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 1991 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico, which denied the Veteran's claim. The RO in St. Petersburg, Florida, currently has jurisdiction of the claim. The claim was remanded by the Board in December 2003, July 2008, March 2011, October 2012 and May 2013. It has been returned for appellate review. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. 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 competent and probative evidence of record does not establish that the Veteran's right leg disorder, to include right knee degenerative joint disease or any previously diagnosed gout of the right lower extremity, is the result of injury to his right leg/knee sustained during active duty. CONCLUSION OF LAW The criteria for service connection for a right leg disorder have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's claim was initially adjudicated before the codification of 38 U.S.C.A. §§ 5103, 5103A. He was not provided the required notice until December 2003. Additional notice was provided in a February 2007 letter and the claim was readjudicated in an October 2007 supplemental statement of the case (SSOC), as well as in SSOCs dated January 2010, February 2010, May 2012, February 2013 and August 2013. Accordingly, the duty to notify has been fulfilled. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (finding that the issuance of a fully compliant notification followed by readjudication of the claim, such as an SSOC, is sufficient to cure a timing defect). VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. This duty has also been met, as the Veteran's service treatment records have been associated with the claims folder and VA has obtained VA treatment records and identified private treatment records. VA also made an unsuccessful attempt to obtain the Veteran's records from the Social Security Administration (SSA) and has afforded the Veteran several VA examinations in order to ascertain the nature and etiology of his claimed right leg disorder. These actions substantially complied with the Board's December 2003, July 2008, March 2011, October 2012 and May 2013 remands. See D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 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 the most recent VA opinion obtained in this case is adequate, as it is predicated on a full reading of the private and VA medical records in the Veteran's claims file, it considers all of the pertinent evidence of record and the statements of the appellant, and the examiner provided a complete rationale for the opinion stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). Based on the foregoing, all known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. The record does not suggest the existence of additional, pertinent evidence that has not been obtained. For the reasons set forth above, and given the facts of this case, the Board finds that no further notification or assistance is necessary, and deciding the appeal at this time is not prejudicial to the Veteran. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110. Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). 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. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. The procedural history involving the claim for service connection for a right leg disorder is long and complicated by the length of time the issue has been on appeal. In the April 1991 rating decision that is the subject of the current appeal, the San Juan RO identified the date of receipt of claim as December 19, 1990. Review of the electronic record indicates that a VA Form 21-4138 dated in November 1990 and received on the December 1990 date identified by the RO, includes the Veteran's report that he had been scheduled for right leg surgery but had had to postpone it due to the death of his daughter-in-law and the critical condition of his son following a motor vehicle accident. There was no argument made as to why a right leg disorder should be service-connected. See November 1990 VA Form 21-4138. Since then, however, the Veteran has made several assertions as to why he believes his right leg disorder should be service-connected. In a June 1994 VA Form 21-4138, the Veteran reported that he had a right leg problem due to frostbite in Korea between 1950 and 1951 and that he had claimed the condition since 1979-1980. In a May 2011 statement in support of claim, the Veteran reported that he sustained a right knee injury in the jungle in Korea. He asserted that he got frostbite in his legs, which made them weak. As a result, he fell down "a few times" and injured his right knee. The Veteran contends that a medic bandaged his knee and told him it was sprained. He asserts that at the time it was sprained, his company had to move to another location that required much walking, making the damage worse. The Veteran reports that "off and on since then I have had to wear a knee brace to support my knee. I have been to several doctors and gotten cortisone shots. In 1991, I went to VA East Orange Medical Center and explained the injury and subsequent walking issues with a doctor. He suggested that my knee would not respond to further treatment and it should be replaced. It was replaced shortly after that. I have still been having problems with the knee even though it was replaced." The Veteran's service treatment records are devoid of reference to complaint of, or treatment for, any right leg problems, to include the right knee and any complaints of frostbite or falls as a result of leg weakness. At the time of his discharge examination, there was no reference to problems involving the right lower extremity, nor did the Veteran reference sustaining a frostbite/cold weather injury during service or injuring his right knee. In addition, clinical evaluation of the lower extremities was normal. See report of medical examination received at RO in September 1952. At this juncture, the Board notes that it previously determined that for the purpose of its March 2011 remand, it had no reason to disbelieve the statements of the Veteran concerning his claim that he developed frostbite during his military service in the Republic of Korea, as they were consistent with the conditions of his verified service in the Republic of Korea. The Board points out now, however, that while the Veteran is competent to report that he experienced right leg weakness that caused a fall, injuring his right knee, he is not competent to report a frostbite or cold weather injury during service. This is so because a diagnosis of frostbite/cold weather injury is not capable of lay observation and is distinguishable from those types of disabilities that are, to include a separated shoulder, varicose veins, and flat feet. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay witness capable of diagnosing dislocated shoulder); Barr, 21 Vet. App. at 308-309 (lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Falzone v. Brown, 8 Vet. App. at 405 (lay person competent to testify to pain and visible flatness of his feet). The Board also notes that at the time of a May 2011 VA joints examination, the Veteran reported the onset of right knee problems in 1951 as a result of an explosion during which "something hit me" and his right knee was bandaged. This is the first time the Veteran has made such an assertion and, given the fact that it deviates so significantly from the assertions raised in the May 2011 statement in support of claim and the assertions raised in the June 1994 VA Form 21-4138, the Board does not find it credible. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (a pecuniary interest may affect the credibility of a claimant's testimony). The post-service medical evidence of record reveals that the Veteran has been diagnosed with degenerative joint disease of the right knee during the pendency of his claim for service connection. He underwent a right high tibial osteotomy on February 7, 1991, and a total right knee arthroplasty on October 11, 1991. See VA treatment records. At this juncture, the Board notes that it remanded the claim in March 2011 in part because the Veteran had been diagnosed with gout in the lower extremities in May 1978 VA treatment records and a VA examination that considered this diagnosis was needed to determine its etiology. The claim was remanded again in October 2012 because while a May 2011 VA examination provided an opinion regarding the etiology of the Veteran's diagnosed right leg/knee disabilities, to include degenerative joint disease of the right knee, there was no discussion of whether right leg gout was present, and, if so, whether such was of service origin. The claim was again remanded in May 2013 because a December 2012 VA knee and lower leg conditions examination only provided an etiological opinion with respect to a diagnosis of total right knee replacement with residual edema, and did not make any reference to the Veteran's diagnosed gout or provide discussion as to whether right leg gout was of service origin. In May 2013, the Board specifically noted that regardless of whether gout is currently diagnosed, the requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even though the disability may resolve prior to the adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). The Board also notes at this juncture that the issue of service connection for gout was adjudicated in a November 1978 rating decision, which denied gouty arthritis of the big toes and ankles. As this decision did not include discussion of gout affecting the right lower extremity above the ankle, the Board will adjudicate gout as part of the current claim for service connection for a right leg disorder de novo. See Ephraim v. Brown, 82 F.3d 399, 402 (Fed. Cir. 1996). The Board has re-reviewed the voluminous amount of medical evidence in this case. It finds that while there were references to lower extremity gout made in VA treatment records, these references all predate receipt of the Veteran's December 1990 claim. In other words, at no time since the inception of his claim has the Veteran been diagnosed with gout of the right lower extremity. Given the foregoing, the Board now finds that the issue of gout of the right lower extremity should never have been considered as part of the current claim. See McClain, 21 Vet. App. at 321. Given the previous remand actions, however, and in light of the fact that an opinion on the issue of gout was obtained in December 2012, the Board will consider that aspect of the claim. The preponderance of the evidence of record does not support the claim for service connection for a right leg disorder, to include degenerative joint disease of the right knee or any previously diagnosed gout of the right lower extremity. As noted above, although the service treatment records do not document complaint of, or treatment for, any right leg problems, and the Veteran is not competent to assert he had frostbite/cold weather injury to his right leg, he is competent to report right leg weakness resulting in falls that injured his right knee. Therefore, an in-service event/injury is conceded for the purposes of this decision. Given that and the fact that there is evidence of a right leg disorder diagnosed during the pendency of the Veteran's claim, the crux of this case falls on whether there is competent evidence of a nexus or connection between the current disability and the disease or injury incurred in service. In this case there is not. The May 2011 VA joints examiner determined that the diagnosed right knee arthroplasty was not caused by or related to service because the condition was not found during or as a result of service. The December 2012 VA knee and lower leg conditions examiner determined that it was less likely than not that the Veteran's right knee condition (diagnosed as total right knee replacement with residual edema) was incurred in or caused by the claimed in-service injury or event because its etiology was related to the normal process of aging. The examiner who conducted the June 2013 VA knee and lower leg conditions examination reported in an August 2013 addendum that the Veteran was status post bilateral total knee arthroplasty to treat degenerative changes of the bilateral knees and that frostbite does not commonly cause degenerative knee changes. The examiner also indicated that he was unaware of any conditions during the Veteran's service that would have caused gout and further explained that gout is a metabolic disorder involving an excess of purine build up with resultant uric acid-induced inflammation about affected joints and that there was insufficient information to explain an onset of gout secondary to service. The examiner also noted that the bilateral nature of the Veteran's knee conditions argues that his condition is much more likely due to genetic predisposition and use of his knees, while much less likely due to any traumatic event during service. The examiner explained that degenerative changes to the knees secondary to gout may occur and result in treatment with knee arthroplasty as well, however the examiner could not identify a link between this Veteran's gout and service. Each of these opinions is afforded high probative value as they considered the Veteran's assertions of in-service event/injury (to include the assertion raised during the May 2011 VA examination that the Board has determined is not credible) and explained why the current disorder was not related to any in-service event. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (a factor for assessing the probative value of a medical opinion includes the thoroughness and detail of the opinion). The Board finds the opinion provided by the June 2012 VA examiner, however, to be the most probative, as it thoroughly explained that there was no association between the alleged frostbite and degenerative knee changes and that it was more likely the right knee disorder was due to genetic predisposition and use of his knees than any traumatic in-service event. The examiner also reported that there were no conditions during service that would have caused gout. In the absence of any competent and probative evidence establishing that the current right leg disorder, to include right knee degenerative joint disease and any previously diagnosed gout of the right lower extremity, is the result of injury to the Veteran's right leg/knee sustained during active duty, service connection is not warranted and the claim is denied. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013). ORDER Service connection for a right leg disorder is denied. ____________________________________________ L.M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs