Citation Nr: 1338102 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 08-04 435 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUES 1. Service connection for a left knee disability, characterized as status post stress fracture of the left knee. 2. Service connection for a left ankle disability, characterized as status post stress fracture of the left ankle. 3. Service connection for a left foot disability, characterized as status post stress fracture of the left foot. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Lindio, Counsel INTRODUCTION The Veteran served on active duty from March 2005 to October 2005. This appeal to the Board of Veterans' Appeals (Board) arose from a February 2007 rating decision in which the RO denied service connection for stress fractures of the left hip, left knee, left ankle, and left foot. In March 2007, the Veteran filed a notice of disagreement (NOD). The RO issued a statement of the case (SOC) in December 2007, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in January 2008. In an April 2009 rating decision, the RO granted service connection for status post stress fracture of the left hip, representing a full grant of the benefit sought with respect to this claim. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977). In December 2011, the Board remanded the remaining claims on appeal to the RO, via the Appeals Management Center (AMC) in Washington, DC, for additional development. After accomplishing the requested development, to the extent possible, the AMC continued to deny each claim (as reflected in a September 2012 supplemental SOC), and returned these matters to the Board for further appellate consideration. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) folder associated with the appellant's claims. A review of the documents in such folder reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate each claim herein decided have been accomplished. 2. While the Veteran had a left knee stress fracture in service, there is no competent, credible and probative evidence indicating that the Veteran has a current left knee disability related to service. 3. While the Veteran had a left ankle stress fracture in service, there is no competent, credible and probative evidence indicating that the Veteran has a current left ankle disability related to service. 4. While the Veteran had a left foot stress fracture in service, there is no competent, credible and probative evidence indicating, that the Veteran has a current left foot disability related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disability, characterized as status post stress fracture of the left knee, are not met. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). 2. The criteria for service connection for a left ankle disability, characterized as status post stress fracture of the left ankle, are not met. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). 3. The criteria for service connection for a left foot disability, characterized as status post stress fracture of the left knee, are not met. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2013)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or her possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 have been revised, in part. See 73 Fed. Reg. 23,353-23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339(Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in a November 2006 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claims for service connection, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. That letter also informed the Veteran to submit any evidence in her possession pertinent to the claim (consistent with Pelegrini and the version of 38 C.F.R. § 3.159 then in effect). The letter also included general information pertaining to VA's assignment of disability rating and effective date, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. The later February 2007 rating decision reflects the initial adjudication of the claim after issuance of the November 2006 letter. Therefore, that letter meets the VCAA's content and timing requirements. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters herein decided. Pertinent medical evidence associated with the claims file consists of service, VA and Naval hospital treatment records. An October 2007 VA examination is also of record, which the Board previously determined was inadequate to make a determination of the Veteran's claims. Also of record and considered in connection with the appeal are various written statements provided by the Veteran and by his representative, on his behalf. The Board finds that no additional RO action in connection with any claim, prior to appellate consideration, is required. Consistent with the December 2011 Board remand, the AMC requested that the Veteran identify her private medical providers in a December 2011 letter. The Veteran did not provide the requested information. Also, the AMC associated with the claims file VA medical records from the Charleston VA Medical Center and verified that the Veteran did not have any records at the Columbia VA Medical Center. The AMC also obtained additional Beaufort Naval Hospital records. Per the Board's remand instructions, the AMC further arranged for the Veteran to undergo an appropriate VA examination in February 2012, to resolve the question of whether the Veteran has a current left knee, ankle and/or foot disability that had its onset in or is otherwise related to service. The record documents that the Veteran failed to report for her examination. The Veteran had previous notice that she would be scheduled for an examination in connection with her claims and further informed her of the consequences of failing to report to an examination, in the December 2011 Board remand. Additionally, although the AMC did not provide a copy of the letter informing the Veteran of the VA examination, the AMC has provided sufficient evidence of record to indicate that the Veteran had knowledge of the VA examination to substantially comply with the remand directive. In March 2012, an AMC employee recorded a contact with the Veteran; the employee noted calling the Veteran to inquire why she had failed to report for her examination. The employee indicated that the person who answered the phone identified herself as the Veteran, but that when the VA employee identified herself the Veteran hung up. When the VA employee called back immediately thereafter, the call went to voice mail. Also, the September 2012 SSOC documented that the Veteran had been scheduled for a VA examination, but failed to report for her examination. The Veteran has not provided any explanation as to why she did not report for her examination, nor has she requested the rescheduling of her examination. As the RO has complied with the Board's directive to schedule the Veteran for an examination, to the extent possible, no further action in this regard is warranted.. In summary, the duties imposed by the VCAA have been considered and satisfied. Through identified notice, the Veteran has been notified and made aware of the evidence needed to substantiate her claims, the avenues through which she might obtain such evidence, and the allocation of responsibilities between herself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with any claim. Consequently, any such error is deemed harmless and does not preclude appellate consideration of the matters herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303 (2013). Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). Certain chronic diseases shall be presumed to have been incurred in service if manifested to a compensable degree within a prescribed period post service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributed to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned. When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2013). The United States Court of Appeals for the Federal Circuit (Federal Circuit) recently clarified that the provisions of 38 C.F.R. § 3.303(b) pertaining to the award of service connection on the basis of continuity of symptomatology apply to chronic diseases as defined in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran's service treatment records document complaints of, or treatment for, pain of the left knee, ankle and foot. After treatment for the ankles in April 2005, the Veteran reported that her ankles "feel better" now an April 2005 record. A July 2005 Medical Board memorandum clearly documents the Veteran's history of in-service injuries. After completing seven days of training, the Veteran sprained her ankle. She later developed bilateral calcaneus stress fractures after 13 days of training. After six weeks of rehabilitation for that injury, she completed 24 training days and developed left groin pain. The opinion provider found that the March 2005 ankle x-rays were normal and that the April 2005 calcaneus films showed interval healing. The opinion provider gave a final diagnosis of left femoral neck stress fracture and found that the Veteran would be unable to fulfill her duties as an active duty Marine. The July 2005 Medical Board examination report documents normal findings for the lower extremities and feet. In her report of medical history, the Veteran denied impaired use of the legs or feet, swollen or painful joints and knee trouble. In October 2007, after her October 2005 separation from service, the Veteran underwent a VA joints examination. The Veteran reported left knee, left ankle and left foot pain, all of which started in 2005. On physical examination, the VA examiner found that the Veteran had a normal gait and an overall normal left knee examination. The VA examiner also found that the Veteran had status post stress fracture of the left knee, left ankle and left foot, with normal left knee and foot examinations that day. The examiner then noted, in an addendum, x-ray findings of a normal left knee, foot and ankle. In December 2007, the Veteran sought physical therapy from Live Oaks Physical Therapy, Inc. The physical therapy records generally document the Veteran's reports of difficulty walking, joint pain or swelling and pain at night. The Veteran complained of stress fractures of the left knee, ankle and great toe. VA medical records, to include a January 2008 record, generally document treatment for various disorders (such as for the service-connected left hip), but not the left knee, ankle or foot. Records from Beaufort Naval Hospital similarly document treatment for various disorders, most of which were for treatment of the service-connected left hip. A June 2008 record documents that the Veteran received physical therapy for the lower extremities (hip and knee) and would continue the same program, with the addition of ankle exercises. However, in a September 2008 record the Veteran reported that her only chronic problem was her hip injury sustained in service. The Veteran also denied any musculoskeletal symptoms. In an October 2009 annual physical, the Veteran reported that she was pain free. In the December 2011 remand, the Board found that the medical evidence then of record-to specifically include the October 2007 VA examination report-did not sufficiently resolve the questions of whether the Veteran currently has left knee, ankle, and/or foot disability(ies), and, if so, the medical relationship between any such disability(ies) and service. The Board thus remanded the claims for another VA examination and medical opinion to clearly resolve those questions. Pursuant to the Board remand, the AMC scheduled the Veteran for a March 2012 VA examination. However, the Veteran failed to report to the scheduled examination, despite the fact that she was notified her that she would be scheduled for an examination in connection with her claims and advised of the consequences of failing to report to the examination. As previously noted, when a VA employee tried to contact the Veteran, in March 2012, to determine why she had failed to report for her examination, the Veteran hung up on that employee. The Veteran has not provided an explanation for failing to report to her scheduled examination since that time. As such, there is no evidence of record that the Veteran had good cause to not report for her examination. 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, action shall be taken in accordance with 38 C.F.R. § 3.655(b) or (c) as appropriate. 38 C.F.R. § 3.655(a). 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. When, as here, a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655(b). Here, however, the current record does not include competent, credible and probative evidence indicating, fundamentally, that the Veteran currently has any chronic left knee, ankle or foot disorder-much less, one medically related to active military service. . While the VA examination scheduled in connection with the Board's remand may have yielded a medical diagnosis of other pertinent findings in this regard, the Veteran failed, without explanation, to report to that examination. Hence, the Board has no alternative but to evaluate the claim on the basis of the evidence of record. As indicated, this evidence simply is not supportive of the claim for service connection. The Veteran's service treatment records include a March 2005 ankle x-ray report documenting normal x-rays. Also, her April 2005 calcaneus films showed interval healing - indicating that that stress fracture injury was already healing. Indeed, the July 2005 Medical Board found that the Veteran only had a diagnosis of left femoral neck stress fracture, for which the Veteran is already service connected. Furthermore, the July 2005 Medical Board examination report documented findings of normal feet and lower extremities. As noted in the December 2011 remand, while the October 2007 VA examiner provided diagnoses of status post stress fracture of the left knee, ankle, and foot, he also noted that on examination, the Veteran's left knee and foot were normal. Thus, the only basis for the examiner's diagnoses related to the left knee and foot appeared to be based on the Veteran's history and subjective complaints of pain. The Board thus previously found that the October 2007 VA examination was inadequate to support the Veteran's claim. The Board points out, in any regard, that the October 2007 VA examiner did note that x-rays revealed a normal left knee, foot and ankle. The actual October 2007 VA x-ray reports include a more in-depth discussion of the x-ray findings. Also, treatment records from VA, Live Oaks Physical Therapy, Inc. and Beaufort Naval Hospital do not document any current diagnosed disability of the left knee, foot and/or ankle, though the Veteran was sometimes was treated for pain in those areas. The Board notes that the Veteran, as a layperson, is competent to report that she has had feelings of left knee, ankle and pain, as she did during her October 2007 VA examination. See, e.g., Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (a lay person is competent to report information of which he has personal knowledge, i.e., information that he can gather through his senses). However, to the extent that the Veteran currently contends that she has had chronic pain in these areas, other evidence of record simply does not support such a finding. In considering the Veteran's contention of chronic pain, the Board is required to assess the credibility and therefore the probative value, of proffered evidence in the context of the record as a whole. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In her April 2005 service treatment record, the Veteran reported that her ankles felt better. Importantly, in her July 2005 report of medical history she specifically denied impaired use of her legs or feet, swollen or painful joints and knee trouble. The Board finds that the statements made by the Veteran in service, including her denial of problems made just prior to her discharge from service during her separation examination, are more credible and probative as to the chronicity of her left knee, ankle and foot problems than her more recent contradictory lay statements. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the Veteran). Such contemporaneous records are more reliable, in the Board's view, than the unsupported assertions of events made in connection with her claim for monetary benefits from the government. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the Veteran is an interested party; personal interest may, however, affect the credibility of the evidence). In any event, the Board points out that pain, alone, without underlying pathology, does not constitute a disability upon which to predicate award of service connection. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), vacated in part and remanded on other grounds sub. nom. Sanchez-Benitez v. Principi, 239 F. 3d 1356 (Fed. Cir. 2001). Here, despite the normal findings on October 2007 examination an x-rays, given the examiner's assessments, and the Veteran's complaints, VA sought to obtain medical information to clarify whether the Veteran, in fact, has current pathology affecting the left knee, left ankle, and/or left foot, and the etiology of each diagnosed disability; however, the Veteran frustrated attempts to assist her in this regard. The duty to assist is not always a one-way street" (see Wood v. Derwinski, 1 Vet. App. 190, 193 (1991), and a veteran has a responsibility to cooperate with VA in the development of his claim. See Caffrey v. Brown, 6 Vet. App. 377, 383 (1994); Olson v. Principi, 3 Vet. App. 480, 483 (1992); Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). The Board emphasizes that the claims under consideration fundamentally turn on the matter of whether the Veteran currently has left knee, ankle or foot disabilities for which service connection is sought, and, if so, whether there exists a medical relationship between such current disabilities and service. Diagnosis and etiology of complex disabilities not capable of being established on the basis of lay observation or other sensory perception, alone, are matters within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). The only evidence provided supporting the claim are in statements from the Veteran herself. Although lay persons are competent to provide opinions on some medical issues (see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011)) as to the specific issue in this case, the diagnosis and etiology of any current left knee, ankle and foot disabilities, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). "Competent medical evidence" is evidence that is provided by a person qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a). As, in this appeal, the Veteran's lay assertions as to diagnosis and etiology have no probative value, the Veteran cannot support any of her claims for service connection on the basis of lay assertions, alone . The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C.A. § 1110; see also 38 C.F.R. § 3.303. Thus, where, as here, competent, credible, and probative evidence does not establish the existence of any disability for which service connection is sought, there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353 (1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In the instant case, the claims for service connection for claimed left knee, ankle and foot disorders must be denied, because the first essential criterion for an award of service connection-evidence of a current disability upon which to predicate such an award-has not been met. As a final point, the Board notes that even if, for the sake of argument, the October 2007 VA examination findings were accepted as providing adequate evidence of the currently-claimed disabilities, the Veteran's claims for service connection would still fail. There is no medical evidence that there exists a medical relationship between any such disability and service. Again, although the Board tried to obtain medical opinion to address this matter, the Veteran failed to report for her scheduled VA examination and the Veteran herself has not provided any medical evidence to indicate such a connection. For all the foregoing reasons, the Board finds that the claims for service connection for left knee, ankle and foot disabilities must be denied. In reaching the conclusion to deny the claims, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as no competent, credible and probative evidence supports the required elements of any claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for a left knee disability, characterized as status post stress fracture of the left knee, is denied. Service connection for a left ankle disability, characterized as status post stress fracture of the left ankle, is denied. Service connection for a left foot disability, characterized as status post stress fracture of the left foot, is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs