Citation Nr: 1338627 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 11-13 245 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUE Entitlement to service connection for a right leg disorder. REPRESENTATION Appellant (Veteran) represented by: Hawaii Office of Veterans Services WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The Veteran served on active duty from January 1951 to February 1953. This matter comes to the Board of Veterans' Appeals (Board) from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii. In August 2011, the Veteran testified at a personal hearing at the RO. A transcript of the hearing is of record. In September 2012 and June 2013, the Board remanded this matter for additional development and medical inquiry. The case is again before the Board for review, and will be decided below. 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. A review of the record indicates that no new relevant evidence has been added to the record since the most recent Supplemental Statement of the Case (SSOC) dated in September 2013. 38 C.F.R. §§ 19.31, 20.1304(c) (2013). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran experienced problems with his right lower extremity during service, but a chronic right leg disorder was not shown until many years after service, and the current right leg disorder is not related to a disease or injury of service origin, or to another service-connected disorder. CONCLUSION OF LAW A right leg disorder was not incurred in or aggravated by active service, and is not related to a service-connected disorder. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The VCAA applies to this claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO submitted to the Veteran several VCAA letters dated between September 2009 and October 2012. The letters notified the Veteran regarding what information and evidence is needed to substantiate his claim of service connection. The letters notified the Veteran regarding what information and evidence must be submitted by the Veteran and what evidence VA would obtain. The letters included provisions regarding disability ratings and effective dates. The Board notes that the Veteran was not fully notified prior to the October 2009 rating decision on appeal. Nevertheless, following full notification, the claim was readjudicated in SSOCs dated in April and September 2013. Overton v. Nicholson, 20 Vet. App. 427 (2006). In sum, the Board finds that VA has met its duty to provide VCAA notification to the Veteran regarding the service connection claim addressed in this decision. With regard to the duty to assist, the RO retrieved the Veteran's service treatment records (STRs), and retrieved private and VA treatment records pertaining to his claim. Moreover, the Veteran underwent VA compensation examination in November 2011 for which a report and opinion are of record. Moreover, two additional supplemental medical opinions have been included in the claims file. The examination and its report, along with the two addenda, are fully adequate for the purposes of determining the nature and etiology of the Veteran's disability. Barr v. Nicholson, 21 Vet. App. 303 (2007). Further, the Veteran's written statements are of record. It appears that all known and available records relevant to the issue on appeal have been obtained and are associated with the Veteran's claim file. Based on the foregoing reasons, the Board finds that VA has complied with the VCAA notification and assistance requirements, and appellate review may proceed without prejudice to the appellant. Bernard v. Brown, 4 Vet. App. 384 (1993). II. The Merits of the Claim to Service Connection The Veteran claims service connection for a right leg disorder. He asserts that he developed the disorder directly during service, and secondarily as the result of residuals associated with a service-connected disorder (a ganglion cyst removal from the area above the right ankle). Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2013). When a Veteran seeks service connection for a disability, due consideration shall be given to the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the Veteran served, the Veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154; 38 C.F.R. § 3.303(a). Service connection may be awarded where the evidence shows that a Veteran had a chronic condition in service or during an applicable presumptive period and still has the condition. 38 C.F.R. §§ 3.303(b), 3.307, 3.309. Certain disorders are presumed to have been incurred in service if manifested to a compensable degree within one year after service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. If there is no evidence of a chronic condition during service or during an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim. The U.S. Court of Appeals for the Federal Circuit recently clarified that the continuity of symptomatology language in § 3.303(b) is limited to the chronic diseases listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for disease that is diagnosed after discharge from active service, when the evidence establishes that such disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to establish service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1, 8 (1999). Under 38 C.F.R. § 3.310(a), service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a) (2013). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 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. In Alemany v. Brown, 9 Vet. App. 518 (1996), the United States Court of Appeals for Veterans Claims (Court) found that in light of the benefit of the doubt provisions of 38 U.S.C.A. § 5107(b), an accurate determination of etiology is not a condition precedent to granting service connection; nor is "definite etiology" or "obvious etiology." 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. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). The Board notes that it has thoroughly reviewed the record in conjunction with this case. 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 submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that 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). In this matter, the evidence of record documents that the Veteran has a current right leg disorder. The November 2011 VA examiner diagnosed the Veteran with a right leg strain. The evidence of record also documents that the Veteran experienced a right leg disorder during service. As indicated earlier, the Veteran had a ganglion cyst on his right leg during service, above his ankle, for which he was service connected in 1953. The January 1953 separation report of medical examination noted an "asymptomatic" nodule that had been discovered three months earlier. The record indicates that the cyst was excised soon after service, which resulted in a scar. The Board also notes that the January 1953 separation reports of medical history and examination note the Veteran's complaints of leg cramps while playing basketball during service. With reference to Hickson element (3), the ultimate question before the Board is whether the Veteran has a current disability that relates to service. For the Veteran to be successful in his claim to direct service connection, the evidence must show that it is at least as likely as not that a right leg disorder is related to a disease or injury that occurred in service. With reference to Allen element (2), the ultimate question is whether the Veteran's current disability relates to his service-connected scar. For the Veteran to be successful in his claim to secondary service connection, the evidence must show that it is at least as likely as not that a right leg disorder is related to the scar. If the preponderance of the evidence shows otherwise, the Veteran's claim to service connection must be denied. Though the Board finds the Veteran with a current right leg disorder, and notes his in-service complaints, the preponderance of the evidence is against the assertion that the current problem relates to service or to the service-connected scar. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board first notes that several decades lapsed between the Veteran's separation from service and the onset of a chronic right leg disorder. The Veteran was discharged from service in 1953, and underwent excision of the cyst soon afterward. However, the earliest medical evidence of record of a chronic right leg disorder is noted in private medical evidence dated in early 2001, nearly 50 years after discharge from service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability may be considered in evaluating a claim of service connection). Secondly, the medical evidence of record dated during the appeal period which addresses the residuals of the ganglion cyst removal - i.e., a scar - do not support the contention that the scar adversely interacted with the Veteran's right lower extremity to such an extent that it caused or aggravated a right leg orthopedic disorder. In an August 2010 VA examination report, the Veteran reported intermittent pain at the scar site of 2/10, no skin breakdown, and no limitations on routine daily activities or employment due to the scar. The examiner noted a 2-centimeter by .25-centimeter barely visible, shiny, smooth, hyperpigmented horizontal scar, located 3 centimeters superior to the anterior ankle joint. The scar was not painful on examination, there was no observation of skin breakdown, and the scar was superficial, indicating no underlying soft tissue damage. The examiner noted that the Veteran did not have limitation of motion or other limitation of function caused by the scar, and there was no inflammation, edema, or keloid formation. The diagnosis was mild scar due to benign ganglion cyst excision right ankle. Further, the Board has found no evidence in private or VA treatment records which supports the proposition that the scar tissue near the right ankle has been severe enough to adversely affect function in the lower right extremity. Thirdly, there is no medical commentary of record supporting the Veteran's assertion that his in-service cramping, or his in-service skin problem and its residuals following service, somehow either caused or aggravated a chronic right leg disorder. None of the Veteran's private providers has offered such an opinion. And none of his treating VA providers has offered such an opinion. Rather, the only medical professionals to have commented on the Veteran's assertions to medical nexus have challenged his theories of entitlement. The November 2011 VA compensation examiner, who indicated a review of the claims file and an examination of the Veteran, stated that the Veteran's right leg problems were likely unrelated to the cyst removal and its residuals because the Veteran's chronic problems began not after excision, but rather after his long-term employment working in a warehouse ended. The examiner further stated that ganglion cysts and their excisions "are not known to cause strain" because leg strain and cysts are "separate and unrelated conditions." As indicated in the Board's two remands, VA sought additional medical inquiry following the November 2011 examination to further refine the examiner's findings. In the first of these opinions, dated in April 2013, an examiner tasked by the Appeals Management Center to review the case stated that the Veteran's right leg disorder likely was not incurred in service, or aggravated by the service-connected cyst removal. The examiner indicated a review of the claims file, and detailed relevant findings pertaining to the Veteran's medical history. As stated in the Board's June 2013 remand, however, this opinion is of limited probative value. Nevertheless, at a minimum, the opinion cannot be construed as a favorable one supporting the Veteran's claim. In the second of these opinions, dated in August 2013, a VA physician indicated a review of the claims file, but stated that a personal examination of the Veteran was unnecessary as "the existing medical evidence provided sufficient information on which to prepare the [report] and such an examination will likely provide no additional relevant evidence." The examiner indicated a review of the claims file, and detailed the Veteran's relevant medical history. Moreover, the examiner expressly stated that the Veteran's right leg disorder was likely not related to service or, more specifically, to the ganglion cyst noted during service. The examiner explained that "the cause of the [V]eteran's right leg intermittent strain is a result of wear-and-tear from working in a civilian warehouse after military service." The examiner noted the evidence of record indicating "onset of right leg pain after 1990 with no continuity between onset of right leg pain and military service." The examiner further stated that a "ganglion cyst is not the same condition as right leg intermittent strain and does not cause right leg intermittent strain." See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician's statement is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support the opinion). On the issue of medical nexus, the Board has considered the Veteran's lay assertion that his ganglion cyst relates to his current right leg strain. 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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Hence, the Veteran may be competent to testify regarding pain and limitation he may experience in his right leg because such symptoms would be observable. However, his assertion regarding medical nexus is of limited probative value because he is not competent to render such a determination. The orthopedic disability at issue involves an internal pathology that is beyond the capacity for lay observation. Its etiology and development cannot be determined through observation or by sensation such as feeling. The Veteran is simply not competent to render a medical opinion regarding the way in which the disorder with his right leg developed. He does not have the training and expertise to provide medical evidence connecting service over 50 years ago to the symptoms, or connecting the symptoms to the disorder at issue. The Veteran cannot provide evidence that states that what he experienced during service, or has felt since service, resulted in an orthopedic disorder in a lower extremity. On this essentially medical question, the Veteran's statements are not probative. In sum, the record demonstrates that the Veteran has a current right leg disorder, and that he experienced during service leg cramps and a ganglion cyst on his leg above his right ankle. However, the preponderance of the evidence of record demonstrates that his in-service problems in the early 1950s, and the scar on the right leg since then, do not relate to his current right leg disorder. Indeed, when compared with the other evidence of record, including the lack of evidence indicating the presence of a right leg disorder prior to the early 2000s, the Board is left with no other conclusion but that the Veteran did not experience a chronic right leg disorder during service that led to his current chronic right leg disorder. 38 C.F.R. §§ 3.303, 3.310. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert, supra. ORDER Entitlement to service connection for a right leg disorder is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs