Citation Nr: 1338648 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 12-05 403 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for right ankle disability. 2. Entitlement to service connection for low back disability. 3. Entitlement to service connection for right hip disability. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The appellant had initial active duty for training (IADT) from January 1991 to June 1991, with subsequent service in the Reserves. These matters are before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by the Atlanta, Georgia Regional Office. The appellant filed a notice of disagreement in July 2009 and a statement of the case was issued in January 2012. He filed an untimely substantive appeal in March 2009; however, the RO in essence indicated that he had perfected an appeal on the original denial of service connection in the July 2009 rating decision. See Percy v. Shinseki, 23 Vet. App. 37 (2009) (VA waives its objection to the timeliness of a substantive appeal by taking actions that lead the claimant to believe that an appeal was perfected). Therefore, the Board will review the claims for service connection on a de novo basis. The matter of service connection for a right hip disability is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on his part is required. FINDINGS OF FACT 1. A right ankle disability was not manifested in, and is not shown to be related to the appellant's service. 2. A low back disability was not manifested in, and is not shown to be related to the appellant's service. CONCLUSIONS OF LAW 1. Service connection for right ankle disability is not warranted. 38 U.S.C.A. §§ 101(24), 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, (2013). 2. Service connection for low back disability is not warranted. 38 U.S.C.A. §§ 101(24), 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The record shows that a VCAA letter dated April 2009 informed the appellant of the information and evidence necessary to warrant entitlement to the benefits sought on appeal. The appellant was also advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The United States Court of Appeals for Veterans Claims decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. A VCAA letter to the appellant was provided in April 2009, prior to the initial unfavorable decision in July 2009. Further, the 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 v. Nicholson, 19 Vet. App. 473 (2006). The April 2009 letters gave notice of the types of evidence necessary to establish a disability rating and effective date for the disabilities on appeal. The appellant has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the appellant has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The appellant's service treatment records (STRs) and service personnel records have been secured. The RO arranged for a VA examination in February 2012. The examiner stated that he reviewed the appellant's claims file and a medical history, and provided a thorough examination of the appellant. Thus, the Board finds that the examination report is adequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and that no further action is necessary. See generally 38 C.F.R. § 3.159(c). No additional pertinent evidence has been identified by the claimant. Legal Criteria, Factual Background, and Analysis Applicable law provides that service connection will be granted if it is shown that the appellant suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 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 substantiate a claim of service connection, there must be evidence of the claimed disability; evidence of incurrence or aggravation of a disease or injury in service; and evidence of a nexus between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1166-1167 (Fed. Cir. 2004). 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 (1999); 38 C.F.R. § 3.303(a). The term "active military, naval, or air service" includes active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C.A. § 101(24). In other words, when a claim is based on a period of ACDUTRA, there must be evidence that the individual concerned died or became disabled during the period of ACDUTRA as a result of a disease or injury incurred or aggravated in the line of duty. In the absence of such evidence, the period of ACDUTRA would not qualify as "active military, naval, or air service" and the claimant would not achieve veteran status for purposes of that claim. See 38 U.S.C.A. § 101 (2)-(24). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board has reviewed all evidence in the claims file and in Virtual VA, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board will summarize the relevant evidence as appropriate and the analysis will focus on what the evidence shows, or fails to show, as to the claim. The appellant contends that he injured his back and right ankle during jump training at Fort Benning, Georgia. See March 2009 claim. Service personnel records reveal he had a military occupational specialty of parachute rigger specialist and received a Parachute Badge. STRs show that in May 1991, the appellant presented to the emergency room complaining of right ankle pain following a jump. X-rays of the right ankle revealed no significant abnormalities. The assessment was rule out ankle sprain. Post-IADT records include a July 1994 medical examination which showed a normal evaluation of the lower extremities and the spine. Notably, on associated report of medical history, the appellant reported a right ankle fracture in 1991, with no surgery, but then indicated that he did not have recurrent back pain or foot trouble and no swollen or painful joints. On a June 1995 report of medical history, the appellant similarly indicated no recurrent back pain or foot trouble, and no swollen or painful joints. On February 2012 VA examination of the ankle, it was noted that the appellant injured his right ankle in May 1991 after jumping/parachuting out of an airplane. The appellant reported he went to sick call where his ankle was wrapped and then he was released. It was noted that he completed additional jumps after this time. The appellant reported completing between 40-50 jumps throughout this jump history. He reported intermittent problems with the right ankle since his in-service injury, including popping, swelling on occasion, and pain. Imaging studies of the right ankle were normal and did not reveal evidence of arthritis. Following an examination, the examiner noted a diagnosis of right ankle strain since 1991 and opined that it is less likely than not that any current ankle conditions/complaints are related to service. The examiner noted that there is no evidence of further complaints or treatment for continued ankle pain or ankle conditions throughout the remainder of his STRs. The examiner also pointed to a July 1994 record which indicated the appellant reported a history of a right ankle fracture in 1991, but stated that his ankle is healed and voiced no other complaints. On February 2012 VA examination of the back, the appellant reported back discomfort starting 2-3 years following service. The appellant reported constant daily pain in his back, which he described as "shocking or tingling feelings in his back" that are exacerbated by certain movements. X-rays of the lumbar spine revealed the presence of arthritis and lumbar degenerative disc disease was diagnosed. The examiner opined that the appellant's current back condition is less likely than not related to his service, and explained that there is no evidence in the STRs of any back complaints, back injury, or treatment related to the back. Right ankle It is not in dispute that the appellant sought treatment for his right ankle in service. Further, the Board acknowledges the appellant's statements of an injury in service and of intermittent problems with the ankle since the injury. In this regard, the Board notes that lay persons are competent to report symptomatology as it is perceived through the senses. See Jandreau, supra. The question here is whether any current right ankle disability may somehow be related to the appellant's service. In this regard, the preponderance of the evidence is against the claim. The most probative and persuasive evidence of record, the opinion of the February 2012 VA examiner, shows that his current right ankle disability is "less likely than not" related to service. The Board finds this opinion highly probative and persuasive because the examiner considered all the evidence of record, including a review of the claims folder and the Claimant's lay statements, and cited to the factual record to support his findings. The examiner noted that the appellant's STRs do not contain any evidence of complaints, treatment, or diagnoses related to the ankle, other than the one instance of right ankle sprain in 1991, and, further, that on July 1994 examination, the appellant reported his ankle had healed and expressed no other complaints related to his ankle. Because the examiner expressed familiarity with the record, and cited to supporting factual data, his opinion is highly probative evidence in this matter. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 299-301 (2008) ("The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches.") quoting Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); see also, Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Significantly, the opinion of the VA examiner is the only medical opinion in the record. Given the depth of the examination report and medical opinion, and the fact that the opinion was based on a review of the applicable record, including the lay statements of record, the Board finds such opinion is highly probative and material to the appellant's claim. See Owens v. Brown, 7 Vet. App. 429 (1995). 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 onset and etiology of a right ankle disorder falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (laypersons are not competent to diagnose cancer). Such matters require medical knowledge. In this case, the Board finds that the etiology of a right ankle disability requires medical expertise. The appellant has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that the appellant received any special training or acquired any medical expertise in evaluating orthopedic conditions. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value. In sum, the preponderance of the evidence is against associating the currently diagnosed right ankle disability with service. In making this determination the Board has considered the benefit-of-the-doubt rule. However, the preponderance of the evidence is against the claim, and the rule does not apply. Gilbert, 1 Vet. App. at 55. Therefore, the appeal in this matter must be denied. Low Back It is not in dispute that the appellant has arthritis of the lumbar spine, as such has been diagnosed, including by VA, since 2012. What remains for consideration is whether or not a low back disability may somehow be related to the appellant's service. In this regard, the preponderance of the evidence is against the claim. The most probative and persuasive evidence of record shows that the appellant's current low back disability is "less likely than not" related to service. Indeed, the only medical opinion of record is that of the February 2012 VA examiner. The examiner cited to the factual record, including the appellant's STRs, and noted that the STRs do not contain any evidence of complaints, treatment, or diagnoses related to the back. Because the examiner expressed familiarity with the record, and cited to supporting factual data, his opinion is probative evidence in this matter. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 299-301 (2008) ("The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches.") quoting Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); see also, Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Significantly, the opinion of the VA examiner is the only medical opinion in the record. Given the depth of the examination report and medical opinion, and the fact that the opinion was based on a review of the applicable record, including the lay statements of record, the Board finds such opinion is highly probative and material to the appellant's claim. See Owens v. Brown, 7 Vet. App. 429 (1995). 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 onset and etiology of a back disorder falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (laypersons are not competent to diagnose cancer). Such matters require medical knowledge. The appellant has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that the appellant received any special training or acquired any medical expertise in evaluating orthopedic conditions. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value. In sum, the preponderance of the evidence is against associating the currently diagnosed low back disability with service. In making this determination the Board has considered the benefit-of-the-doubt rule. However, the preponderance of the evidence is against the claim, and the rule does not apply. Gilbert, 1 Vet. App. at 55. Therefore, the appeal in this matter must be denied. ORDER Service connection for a right ankle disability is denied. Service connection for a chronic low back disability is denied. REMAND A July 2009 rating decision denied the appellant service connection for right hip disability. Correspondence from the appellant received in September 2009 and May 2010 expresses disagreement with this denial, and either document can be reasonably interpreted as a (timely) notice of disagreement with all issues, including the right hip, denied in the July 2009 rating decision. The RO has not issued a statement of the case (SOC) in the right hip matter. In such circumstances the Board is required to remand the matter for issuance of a SOC. See Manlicon v. West, 12 Vet. App. 238 (1999). This matter is not before the Board at this time, and will only be before the Board if the appellant timely files a substantive appeal after a SOC is issued. Accordingly, the case is REMANDED for the following: The RO should review their determination regarding the denial for the appellant's claimed right hip disability and issue an appropriate SOC in this matter. He should be advised of the time limit for perfecting his appeal, and be afforded the opportunity to do so. If this occurs, this matter should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ____________________________________________ M.C. GRAHAM Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013). Department of Veterans Affairs