Citation Nr: 1336386 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 05-36 173 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a right ankle disorder. 2. Entitlement to service connection for a left eardrum disorder. 3. Entitlement to service connection for a left shoulder disorder. 4. Entitlement to service connection for a left knee disorder. 5. Entitlement to service connection for a right knee disorder. 6. Entitlement to service connection for a heart disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The Veteran had active service from September 1977 to September 1980, from September 2001 to September 2002, from January 2003 to October 2003, and from January 2008 through March 2009. He has also served several periods of reserve component duty totaling at least 14 years, according to a DD214 issued in 2009. His awards reflect involvement in combat. The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision of the Department of Veterans Affairs' (VA) Regional Office (RO) in St. Petersburg, Florida. In October 2008, January 2010 and September 2012, the Board remanded the matters for additional development. The claims have since been returned to the Board. The issues of entitlement to service connection for a right ankle disability and left eardrum disability are now before the Board for final appellate consideration. The issues of entitlement to service connection for a left shoulder disability, a left knee disability, a right knee disability and a heart 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. There has been no demonstration by competent medical evidence or competent and credible lay evidence that the Veteran has a right ankle disability. 2. There has been no demonstration by competent medical evidence or competent and credible lay evidence that the Veteran has a left eardrum disability. CONCLUSIONS OF LAW 1. A right ankle disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110 , 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304 (2013). 2. A left eardrum disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110 , 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice was provided in a March 2004 letter. Additional notice was provided in an April 2006 letter. Thereafter, the claims on appeal were readjudicated, including in a July 2007 supplemental statement of the case (SSOC). Accordingly, the duty to notify has been fulfilled. With regard to the duty to assist, the claims file contains some of the Veteran's service treatment records, VA medical records, VA examination reports and the Veteran's own statements. The Board has carefully reviewed the record and concludes that there has been no identification of further available evidence not already of record. VA has substantially complied with the Board's September 2012 remand. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008); Dyment v. West, 13 Vet. App. 141 (1999). The Board made additional efforts to locate missing service treatment records, and did obtain some missing service treatment records from the RO. However, the service treatment records from the Veteran's initial period of active duty are still missing. An August 2004 VA memorandum states that VA had determined that the Veteran's service medical records were unavailable, all procedures to obtain them had been correctly followed, all efforts to obtain the records had been exhausted, further efforts were futile, and, based on these facts, the records were unavailable. The memorandum lists the attempts made to obtain the records. The Board is aware that in such situations, it has a heightened obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board observes that the fact that some of the Veteran's service treatment records are missing is not determinative in this decision. As discussed in detail below, the claims on appeal are being denied not because of a lack of inservice injuries but because of a lack of current disabilities. In his VA Form 9, Appeal to the Board of Veterans Appeals, the Veteran indicated that he wished to testify at a hearing before the Board at the local RO. He subsequently submitted a statement in December 2009 wherein he withdrew his hearing request. The Veteran was afforded VA medical examinations during the appeal, including in March 2010, September 2010 and May 2011. 38 C.F.R. § 3.159(c)(4). To that end, 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 VA examinations and opinions obtained in this case are more than adequate, as they are predicated on a reading of the Veteran's claims file and/or medical records, and the results of current or recent physical examinations. They consider all of the pertinent evidence of record and the statements of the Veteran. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Legal Analysis With respect to each of the Veteran's claims, the Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. The Veteran seeks service connection for a right ankle disability and a left eardrum disability. He contends that several times when in the Army Reserves he was seen for pain in the ankles, with no treatment provided except for waiver from running, etc. He contends that his left eardrum ruptured for some unknown reason in December 1979 at Fort Riley, Kansas. Since that time he has had ringing in the ears. In general, a veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection also is permissible for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). The term "active service" includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty. 38 U.S.C.A. § 101(24) (West 2002); 38 C.F.R. § 3.6(a),(c), and (d) (2013). Inactive duty training may be the basis of service connection for injuries only, or acute myocardial infarction, cardiac arrest, or cerebrovascular accident. 38 U.S.C. §101(24)(C) (2013). In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C.A. § 5107(b). Based on a thorough review of the record, the Board finds that the preponderance of the evidence is against entitlement to service connection for a right ankle disability or a left eardrum disability. The competent medical evidence fails to show that the Veteran has either claimed disability. The report of the March 2010 VA examination provides that on examination the Veteran had a normal left tympanic membrane. The report of the September 2010 VA audio examination recites the Veteran's account of an inservice left "busted eardrum" in 1979. The report provides that on examination the Veteran had an intact left tympanic membrane. The final diagnosis was negative for any reference to the left eardrum. The report of the May 2011 VA examination recites the Veteran's account that there was no specific active duty right ankle injury, just that the problem began during active duty. The report provides the pertinent diagnosis that examination and imaging of the Veteran's right ankle was normal, with no pathology noted. The report later reiterates that the Veteran's examination and X-rays were unremarkable. The Board finds that these VA medical records constitute highly probative evidence against service connection for a right ankle disability and a left eardrum disability. The examiners explained the negative diagnoses with specific references to the lack of current relevant physical findings. This fact is particularly important, in the Board's judgment, as the references make for a more convincing rationale. The Board finds the September 2010 and May 2011 negative findings and diagnoses are particularly significant, given that the reports specifically acknowledged the Veteran's claimed inservice injuries. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion.); Elkins v. Brown, 5 Vet. App. 474, 478 (1993) (medical opinions as to a nexus may decline in probative value where the physician fails to discuss relevant medical history). The Board acknowledges the assertions by the Veteran in support of his claim. He is competent to testify as to his observable symptoms during and after active duty. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds that any such assertions are credible. However, the Veteran's contentions that he has a right ankle disability and left eardrum disability do not constitute medical evidence in support of his claim. Although lay persons are competent to provide opinions on some medical issues, the specific issue in this case (whether the Veteran has a right ankle disability and left eardrum disability) falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). As a result, the Veteran's assertions cannot constitute competent medical evidence in support of his claim. The Board is aware that lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno, supra. Additionally, 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. Further, lay 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. Jandreau, supra. The Veteran is competent to state that he observed symptoms of a right ankle disability and a left eardrum disability during or after service. The Board finds him to be credible in this regard. However, he is not competent to attribute the coincidence of symptoms occurring during or after service as establishing that he now has the claimed right ankle or left eardrum disability. As such, the Board finds that the Veteran's assertions are outweighed by the March 2010, September 2010 and May 2011 VA medical findings and diagnoses. The Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Brown, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Accordingly, service connection for a right ankle disability and a left ear drum disability is denied. In denying service connection for a left eardrum disability, the Board observes that a November 2011 rating decision granted the Veteran service connection for tinnitus, evaluated as 10 percent disabling. Thus, the Veteran does receive compensation for ringing in the left ear, which is the symptom that he reported when he originally claimed service connection for a left eardrum disability. In sum, the evidence demonstrates that the Veteran is not entitled to service connection for a right ankle disability or a left eardrum disability. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Service connection for a right ankle disorder is denied. Service connection for a left eardrum disorder is denied. REMAND A preliminary review of the record indicates that the claims for service connection for a left shoulder disability, a left knee disability, a right knee disability and a heart disability require additional development. Turning to the Veteran's left shoulder, he specifically contends that he dislocated it in November 1977 while in boot camp. The May 2011 VA examination report provides a pertinent diagnosis of left shoulder osteoarthritis. The examiner expressed the opinion that it was less likely as not that the Veteran's left shoulder condition was caused by or a result of active duty. The examiner explained in part that he could find no evidence that the Veteran initially dislocated his shoulder during active duty. He later repeated that there was no evidence that the Veteran had a left shoulder dislocation during active duty. In an April 2013 addendum, the same VA examiner stated that the records were totally silent for any treatment or diagnosis of left shoulder dislocations. In making his negative opinion, the examiner fails to acknowledge that the service treatment records for the relevant period of the Veteran's active duty are missing. In this situation, there is no way that the record could demonstrate that the Veteran did dislocate his left shoulder during boot camp as he asserts. Moreover, in the April 2013 addendum, the examiner states that the records were silent for any "CHRONIC" left shoulder complaints or any treatment for left shoulder dislocations. This statement ignores the fact that the same examiner provided a diagnosis of osteoarthritis in the May 2011 VA examination report. The examiner also fails to express an opinion as to the relationship, if any, between the Veteran's claimed inservice shoulder dislocation and the current diagnosis of osteoarthritis. Turning to the Veteran's knees, the May 2011 VA examination report provides pertinent diagnoses of left knee osteoarthritis and right knee osteoarthritis. Yet, in the April 2013 addendum the same examiner states that "[t]here is absolutely no evidence of a chronic knee condition." The Board finds that a clarification of these statements is necessary for the proper adjudication of the Veteran's claims for service connection for left and right knee disabilities. With respect to the Veteran's left shoulder and knee claims, the Board points out that 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 resolves prior to the adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). Turning to the Veteran's heart disability, the April 2013 addendum recounts that a June 2009 private cardiac catheterization indicated mild arteriosclerotic disease and preserved left ventricular function. However, the examiner fails to express an opinion as to the relationship, if any, between the mild arteriosclerotic disease and preserved left ventricular function noted in private medical records and the Veteran's active duty. The April 2013 addendum also notes that an echocardiogram indicated mitral valve prolapse. The examiner states that this was a condition found in 7 percent of all autopsies, and furthermore almost all patients were born with this condition so it was not rational that this would be service-connected. However, the examiner fails to address whether the Veteran's mitral valve prolapse preexisted active duty and, if so, whether it was aggravated by active duty. The Board finds that the foregoing VA examination reports and opinions are inadequate, and additional development to obtain clarifying medical opinions is required. The Court has held that once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, he must provide an adequate one. See Barr, supra (noting that once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, he must provide an adequate one); see also Daves v. Nicholson, 21 Vet. App. 46, 51 (2007), citing Green v. Derwinski, 1 Vet. App. 121, 123-124 (1991); Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence... is essential for a proper appellate decision"); see also 38 C.F.R. § 4.2 (2013) (noting that if the examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes). Accordingly, the case is REMANDED for the following action: 1. Forward the Veteran's claims folder to the examiner who conducted the May 2011 VA examination (or a suitable substitute if this individual is unavailable) for an addendum. The examiner is requested to review the claims folder in order to fully address whether it is at least as likely as not (50 percent or more likelihood) that the Veteran has a current left shoulder disability, or has ever had a left shoulder disability during the appeal period, to include osteoarthritis. If the examiner determines that the Veteran does have a current left shoulder disability, or did have one during the appeal period, the examiner should fully address whether it is at least as likely as not (50 percent or more likelihood) that the left shoulder disability was caused by the Veteran's active duty. Taking into consideration that service medical records from his initial period of service have been lost, a lack of recorded injury during the initial period is not an adequate rationale. An additional examination of the Veteran should be scheduled only if deemed necessary to provide the requested opinion. 2. Forward the Veteran's claims folder to the examiner who conducted the May 2011 VA examination (or a suitable substitute if this individual is unavailable) for an addendum. The examiner is requested to review the claims folder in order to fully address whether it is at least as likely as not (50 percent or more likelihood) that the Veteran has a current right or left knee disability, or has ever had a right or left knee disability during the appeal period, to include osteoarthritis. If the examiner determines that the Veteran does have a current right or left knee disability, or did have one during the appeal period, the examiner should fully address whether it is at least as likely as not (50 percent or more likelihood) that the right or left knee disability was caused by the Veteran's active duty. An additional examination of the Veteran should be scheduled only if deemed necessary to provide the requested opinion. 3. Forward the Veteran's claims folder to the examiner who conducted the May 2011 VA examination (or a suitable substitute if this individual is unavailable) for an addendum. The examiner is requested to review the claims folder in order to fully address: (1) whether it is at least as likely as not (50 percent or more likelihood) that the Veteran's mild arteriosclerotic disease and preserved left ventricular function are related to the Veteran's active duty; and (2) whether it is at least as likely as not (50 percent or more likelihood) that the Veteran's mitral valve prolapse preexisted his active duty, and if so, whether it is at least as likely as not (50 percent or more likelihood) that it was aggravated by active duty. The examiner is advised that aggravation is defined for legal purposes as a chronic or permanent worsening of the underlying condition beyond its natural progression versus just a temporary or intermittent flare-up of symptoms. An additional examination of the Veteran should be scheduled only if deemed necessary to provide the requested opinion. 4. Then, readjudicate the Veteran's claim. If any benefit sought on appeal remains denied, the appellant and his representative should be provided an SSOC and afforded an opportunity to respond. The case should be returned to the Board for appellate review. 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