Citation Nr: 1339203 Decision Date: 11/27/13 Archive Date: 12/13/13 DOCKET NO. 08-16 214 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for a lumbar spine disability. 2. Entitlement to service connection for a hip disability 3. Entitlement to service connection for a left knee disability. 4. Entitlement to service connection for a cervical spine disability. 5. Entitlement to service connection for a left foot disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. B. Mays, Counsel INTRODUCTION The Veteran served on active military duty with the U.S. Marine Corps from January 1, 1974 to April 25, 1974. According to a September 1974 Administrative Decision, the Veteran's discharge was considered to have been issued under honorable conditions. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The Veteran testified at a personal hearing before the undersigned Veterans Law Judge sitting at the RO in June 2010, and a transcript of the hearing is of record. The Board remanded the claim in October 2010. In November 2012, the Board reopened previously denied service connection claims for back, left knee, left ankle, and hip disabilities; granted service connection for a left ankle disability, residuals of a head injury, and posttraumatic stress disorder (PTSD); and remanded for further development the reopened claims, as well as the service connection claims for cervical spine disability and left foot disabilities. The Veteran is now in receipt of a 100 percent schedular evaluation for PTSD, effective December 2006. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's current lumbar spine disability is related to active military service, or that arthritis of the lumbar spine was manifested to a compensable degree within one year following discharge from service 2. The probative medical evidence does not relate the Veteran's hip contusion to his active service. 3. The probative medical evidence does not relate the Veteran's left knee contusion to his active service. 4. The probative medical evidence does not relate the Veteran's sprain and degenerative disc disease of the cervical spine to his active service. 5. The preponderance of the evidence is against finding that the Veteran's current left foot disability is related to active military service, or that arthritis of the left foot was manifested to a compensable degree within one year following discharge from service. CONCLUSIONS OF LAW 1. The criteria are not met to establish service connection for a lumbar spine disability. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2013). 2 The criteria are not met to establish service connection for a hip disability. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2013). 3. The criteria are not met to establish service connection for a left knee disability. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2013). 4. The criteria are not met to establish service connection for a cervical spine disability. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2013). 5. The criteria are not met to establish service connection for a left foot disability. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts. Duties to Notify and Assist As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim: 1) Veteran status, 2) existence of a disability, 3) relationship between the disability and military service, but also concerning the "downstream" 4) disability rating and 5) effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). This notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). However, if notice was not provided prior to initially adjudicating the claim or, if provided, was inadequate or incomplete, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is preserved, so not frustrated, in that the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on a case-by-case basis. Moreover, as the pleading party attacking the agency's decision, the Veteran has this burden of proof of not only establishing error but also, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of the claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Veteran was provided a pre-adjudicatory VCAA notice letter in April 2007. Throughout the appeal, additional notice letters were sent to the Veteran in June 2007, October 2010, and December 2012. Collectively, these letters notified the Veteran of what information and evidence must be submitted to substantiate his claims, as well as what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. He has also been advised as to how disability ratings and effective dates are assigned. See Dingess, supra. After all notice was provided to him, his claim was readjudicated by way of a March 2013 SSOC. He has therefore received all required notice concerning his claims, and it has been reconsidered since providing all required notice. VA's duty to assist includes assisting him in obtaining his service treatment records (STRs) and pertinent post-service treatment records (VA) and providing an examination when needed to assist in deciding the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All necessary development has been accomplished to the extent possible and, therefore, appellate review of this claim may proceed without unduly prejudicing the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's VA and private medical evidence, records from the Social Security Administration (SSA), a hearing transcript, and the Veteran's contentions. The Veteran has not identified, and the record does not otherwise suggest, any additional existing evidence that is necessary for a fair adjudication of this claim that has not been obtained and that is obtainable. He has received all essential notice, has had a meaningful opportunity to participate effectively in the development of this claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004). V A's duties to notify and assist him with this claim have been satisfied. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U.S. Court of Appeals for Veterans Claims held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or VLJ who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issue(s) and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the Board hearing, the undersigned VLJ identified the issues which at that time included whether new and material evidence had been received to reopen service connection claims for back, hip, left knee disabilities, in pertinent part, as well as the issues of service connection for cervical spine and left foot disabilities. The VLJ obtained information to clarify the Veteran's arguments. Based on the evidence of record and the hearing testimony, the VLJ subsequently reopened the new and material evidence claims, and then requested that VA examinations be conducted to further assist in substantiating the reopened claims as well as the remaining service connection claims. The hearing officer's two-fold duty to inform the Veteran of the outstanding issues relevant and material to the claim, and to suggest the submission of evidence when such evidence is missing or has been overlooked, has been satisfied. See id. at 496-97. The Veteran has not alleged that there were any deficiencies in the Board hearing under section 3.103(c)(2). See Bryant, 23 Vet. App. at 497-98. The Board has not identified any hearing deficiency. In Bryant, 23 Vet. App. at 498-99, the Court held that although the hearing officer did not explicitly explain the material issues of medical nexus and current disability, the purpose of 38 C.F.R. § 3.103(c)(2) had been fulfilled because the record reflected that these issues were developed by VA, and there was no indication that the Veteran had any additional information to submit. In this case, given the development of the Veteran's claim discussed above, the Board finds no deficiency in the Board hearing or in development of the claim. See id. Legal Criteria - Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2013). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disorder on a direct basis, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of the 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). Certain chronic disabilities, to include arthritis (ie., degenerative joint disease), are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease; such diseases are listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As noted, arthritis is among the chronic disabilities listed in 38 C.F.R. § 3.309(a), and may be established as a chronic disease diagnosed in service or on the basis of continuity of symptomatology. Id. A service connection claim must be accompanied by evidence which establishes that the claimant currently has the claimed disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the Veteran. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). In doing so, equal weight is not accorded to each piece of evidence in the record as every item of evidence does not have the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert, 1 Vet. App. at 53; see also 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. The Veteran is currently diagnosed with a low back contusion, degenerative joint and disc disease of the lumbar spine, a hip contusion, a left knee strain, a sprain and degenerative disc disease of the cervical spine, a left foot contusion, and left hallux valgus. He has consistently reported a history of being physically assaulted during boot camp which resulted in his claimed disabilities. The Veteran's STRs do not reflect any treatment for injuries stemming from an assault. However, his service personnel records show that he was a member of a medical rehabilitation platoon, apparently due to a knee injury. Additionally, in its November 2012 decision, the Board accepted the Veteran's reports of these in-service assaults. Therefore, there is evidence of an in-service event. The dispositive issue therefore is whether there is a nexus between the claimed disabilities and the reported assaults during service, or any other event during service. A November 2010 VA examiner was unable to provide an etiology opinion as to the left knee strain without resorting to speculation. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010) (holding that an examiner's conclusion that a diagnosis or etiology opinion is not possible without resort to speculation is a medical conclusion just as much as a firm diagnosis or conclusive opinion, but a bald statement that it would be speculative to render an opinion on etiology or diagnosis is fraught with ambiguity). In December 2010, the Veteran was afforded an additional VA compensation examination. The examiner concluded that it is less likely that the Veteran's degenerative diseases in the lumbar and cervical spine are due to, or exacerbated by, the events during his four months of recruit service. The examiner stated that it is difficult to place the etiology of the Veteran's spinal degenerative disease to the events in 1974. The examiner explained that while spinal degenerative problems are not unique to former recruits, they plague the vast majority of citizens just by reason of the normal aging process. He noted that x-rays do not document any fractures and stated that chronic degenerative problems mainly spring up without any causative event. In an effort to ensure that the Veteran received all consideration due him under the law, he was afforded additional VA compensations taking into consideration that his claimed personal assault did occur in service, as determined by the Board in November 2012. After examining the Veteran and reviewing the claims file, the VA examiner determined that there is no objective evidence to relate the Veteran's current medical complaints to service, even considering the in-service assault. The VA examiner concluded that the Veteran's lumbar spine, hip, left knee, cervical spine, and left foot disabilities were less likely than not incurred in or caused by service. The examiner observed that although the Veteran had complaints of pain in the ensuing years, he had no documented structural abnormalities. It was noted that recent x-rays of the Veteran's left hip and left knee are normal, and that x-rays of the lumbar and cervical spine show only minor degenerative changes, which the examiner stated are not unusual in a person of the Veteran's age and are not indicative of a debilitating injury. The examiner stated further the recent x-ray evidence of a bunion formation on the Veteran's great toe is not indicative of an injury. The January 2013 VA opinions are highly probative evidence. The examiner relied on sufficient facts and data, provided a rationale and sound reasoning for the opinions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The examiner also had the opportunity to review the claims file and examine the Veteran. The Veteran, as a layperson, is competent to report his observable symptoms of his low back, hip, left knee, cervical spine, and left foot, such as pain. However, the question of whether his current disabilities are related to his service is a complex medical question, not capable of lay observation. See Jandreau, 492 F.3d at 1376 (noting that lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 308 -09 (2007) (finding that lay testimony is competent to establish the presence of varicose veins). Because the evidence does not indicate that the Veteran has the appropriate training, experience, or expertise to provide a medical opinion concerning an orthopedic or spine disability, he is not competent to comment on the etiology of his claimed disabilities. The competent medical evidence outweighs the Veteran's unsubstantiated lay reports regarding etiology. There is also no evidence of arthritis of the lumbar spine or left foot within the first post-service year. The first evidence of back pain is shown on a 1983 disability examination report. However, pain, alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). The lumbar spine x-rays taken in 1983 showed no underlying disability. Arthritis of the lumbar spine was not diagnosed until the December 2010 VA examination. Moreover, although the Veteran referenced problems with his left leg during the 1983 examination, he made no specific complaints regarding his left foot per se. The first x-ray evidence of arthritis in the left foot (navicular-cuneiform joint) is not shown until March 1994, approximately 20 years after service separation. Although not dispositive by itself, the absence of any indication of a relevant medical complaint until many years after service is relevant in determining whether a disease or an injury in service resulted in chronic or persistent residual disability. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Service connection for arthritis of the lumbar spine and left foot based on continuity of symptomatology is also for consideration, as arthritis is a chronic disease listed in 38 C.F.R. § 3.309(a). However, as indicated, arthritis of the lumbar spine and left foot is not shown in the record until decades after service. The medical records are more probative than any lay assertions of continuity of symptomatology, and weigh against a finding of continuity of symptomatology of lumbar spine and left foot arthritis since service. Thus, service connection based on continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) is not warranted. The Veteran's current diagnoses of contusions of the back, hip, and left knee, as well as degenerative disc disease of the cervical spine based on continuity of symptomatology are not for application as those disabilities are not listed as chronic diseases under 38 C.F.R. § 3.309(a). See also, Walker, supra. The preponderance of the evidence is against the Veteran's claims, and the benefit-of-the doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b) 2013). Thus, the claims will be denied. (ORDER ON NEXT PAGE) ORDER Entitlement to service connection for a lumbar spine disability is denied. Entitlement to service connection for a hip disability is denied. Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for a cervical spine disability is denied. Entitlement to service connection for a left foot disability is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs