Citation Nr: 1511688	
Decision Date: 03/19/15    Archive Date: 04/01/15

DOCKET NO.  13-06 445	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Entitlement to service connection for a right hip disability.

2.  Entitlement to service connection for a left hip disability.

3.  Entitlement to service connection for degenerative joint disease of the knees.

4.  Entitlement to service connection for right distal tibia fracture residuals.

5.  Entitlement to service connection for degenerative disc disease of the lumbosacral spine.

6.  Entitlement to service connection for degenerative disc disease of the cervical spine.

7.  Entitlement to service connection for a leg disability.


REPRESENTATION

Appellant represented by:	North Carolina Division of Veterans Affairs


ATTORNEY FOR THE BOARD

R.N. Poulson, Counsel


INTRODUCTION

The Veteran served on active duty from July 1965 to June 1967.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.  

The decision below addresses the claim of service connection for a leg disability.  Because the Veteran is also pursuing claims of service connection for hip, knee, and ankle disabilities (and presumably any radiculopathy due to low back disc disease), the references to leg disability in the decision below should be taken to mean any leg disability other than hip, knee, or ankle (tibia) disability or any radiculopathy.  (With exception of the issue of entitlement to service connection for a leg disability, the issues on appeal are addressed in the remand that follows the decision below.)


FINDING OF FACT

The Veteran does not have a diagnosed leg disability.



CONCLUSION OF LAW

The Veteran does not have a right or left leg disability that is the result of disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110,  5103A (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2014).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2014). 

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  The 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.  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

Here, pre-decisional letters dated in September 2009 and October 2009 complied with VA's duty to notify the Veteran with regards to the service connection issue addressed herein.  Specifically, this correspondence apprised the Veteran of what the evidence must show to establish entitlement to the benefit, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf.  The letter also notified the Veteran of the criteria for assigning a disability rating and an effective date.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 

Moreover, VA has complied with its duty to assist the Veteran in the development of his claim.  VA has obtained service treatment records (STRs), private treatment records, and VA treatment records.  The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration.  See 38 C.F.R. § 3.159 (c) (2).  All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claim file and he has not contended otherwise. 

The June 2010 VA examination (with September and October 2010 addenda) is adequate for adjudication purposes.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The VA examiners considered the pertinent evidence of record, fully examined the Veteran, and thoroughly reviewed the claims file.  

II.  Analysis

The Veteran contends that he has a bilateral leg disability manifested by pain secondary to his back and hip disabilities.

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).

The medical evidence of record shows that the Veteran has not been diagnosed with a leg condition.  A September VA examiner reviewed the claims file and noted that the Veteran was asymptomatic with respect to the femurs, tibiae, and fibulae.  He also noted "no frank leg complaints" aside from complaints relative to the specific joint problems that have also been appealed.

The existence of a current disability is the cornerstone of a claim for VA disability compensation.  38 U.S.C.A. §§ 1110, 1131; see also Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary).  In other words, the evidence must show that, at some point during the appeal period, the veteran has the disability for which benefits are being claimed.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (in which the Court held that, in the absence of proof of a present disability, there can be no valid claim).  Here, there is no competent evidence showing a diagnosis of a leg disability during the appeal period.  While the Veteran is competent to describe his leg pain, he is not competent to diagnose a disability where such requires specialized medical training or knowledge.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

The preponderance of the evidence is against the claim; there is no doubt to be resolved; service connection for a leg condition is not warranted.  (As noted in the introduction, supra, because the Veteran is also pursuing claims of service connection for hip, knee, and ankle disabilities (and presumably any radiculopathy due to low back disc disease), which claims are considered separate from the leg disability claim, this denial of service connection extends only to leg disability other than hip, knee, or ankle (tibia) disability or any radiculopathy.)  


ORDER

Entitlement to service connection for a right or left leg disability is denied.



REMAND

The Veteran attributes his right hip, knee, right ankle, back, and neck disabilities to repeated parachute jumps during service.  Specifically, he maintains that he sustained various injuries during a six-week period of airborne training jumps at Travis Air Force Base (AFB), California. 

An August 2009 letter from D.C., a nurse practitioner, notes that the Veteran was treated for severe pain in his hips, right ankle, knees, back, and neck.  She stated that the Veteran was treated in service for injuries to these joints, and that the pain was progressing.  She opined:  "The pain is more than likely due to his service in the military when he was jumping from aircraft."  No rationale was provided.  (A medical opinion that includes only data and conclusions is accorded no weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).)

The Veteran submitted to a June 2010 VA examination.  The examiner opined that the Veteran's currently diagnosed lumbar spine, cervical spine, right hip, bilateral knee, and right ankle disabilities were not caused by military service.  He noted that the STRs and separation examination included no evidence of any jump-related injuries during service.  He also noted that there was "nothing in the claims file" that supports an assertion that parachute jumping caused or aggravated the Veteran's currently diagnosed problems.  The examiner also referenced the Veteran's "physically demanding occupation" for 20 years following service.  He reviewed the nurse practitioner's opinion, but concluded that "it is not medically plausible that parachute jumping in service caused the veteran's current complaints."  

The Board notes that the RO received the Veteran's service personnel records in January 2013.  Those records contain a DA Form 1307, "Individual Jump Record," which confirms that the Veteran performed tactical/combat equipment jumps at Travis AFB from May 4, 1966 to June 16, 1966.  The Board notes that the Veteran reportedly made one or two jumps each day during this period.  See September 2009 and November 2010 VA Form 21-4138.  

An opinion based on incorrect facts has little probative value.  Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative).  Thus, on remand another examination that takes into account this evidence regarding the Veteran's in-service jump history is required.

There are also outstanding records.  The Veteran reportedly received medical treatment, to include chiropractic care, for his back, neck, knees, hips, and right ankle in the 1970s.  See June 2010 VA Examination; September 2009 VA Form 21-4138.  These records should be obtained.

The Board finds that the issue of entitlement to service connection for a left hip disability is inextricably intertwined with the issue of entitlement to service connection for a right hip disability.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated).  Therefore, this claim must be readjudicated after the AOJ considers entitlement to service connection for a right hip disability.

Accordingly, the case is REMANDED for the following action:

1. Contact the Veteran and ask him to identify the names and addresses for any non-VA health care providers who provided medical or chiropractic treatment for his back, neck, hips, knees, and right ankle in the 1970s.  Obtain copies of pertinent treatment records identified by the Veteran that have not been previously secured.

2. Thereafter, schedule a VA examination.  The claims file, to include a copy of this remand and any evidence obtained pursuant to the development directed herein, must be made available to the examiner for review.  The examiner is asked to provide the following opinions:

(a)  Is it at least as likely as not, i.e., 50 percent probability or greater, that any currently diagnosed lumbar spine, cervical spine, left or right knee, right ankle, or left or right hip disability began during military service or is otherwise related to military service, to include repeated parachute jumps (regardless of whether there were complaints or findings of any acute injury at that time)?  In answering this question, the examiner should consider the DA Form 1307 (located in the personnel records) and the Veteran's post-service employment.  The examiner should also address the Veteran's competent lay statements regarding chronic pain since discharge from active duty.  The examiner should set forth the medical reasons for accepting or rejecting the Veteran's statements that he has had pain since service. 

(b)  Is it at least as likely as not, i.e., a 50 percent probability or greater, that any currently diagnosed left hip disability has been caused or aggravated (permanently worsened beyond normal progression) by a right hip disability or any other diagnosed disability? 

A full and complete explanation for all opinions expressed must be provided.  If the examiner determines that she/he cannot provide an opinion on the issue at hand without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined.  In particular, she/he should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. See Jones v. Shinseki, 23 Vet. App. 382, 389 (2010).  (The AOJ should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.)

3. If any of the benefits sought remains denied, issue a supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond.  The case should then be returned to the Board for further appellate review, if otherwise in order.  No action is required of the appellant until he is notified.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This case must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board 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 2014).



________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs