Citation Nr: 1512072	
Decision Date: 03/20/15    Archive Date: 04/01/15

DOCKET NO. 10-17 414	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Honolulu, Hawaii


THE ISSUES

1. Entitlement to service connection for a left knee disability, to include arthritis, chondromalacia and residuals of pigmented villonodular synovitis (PVNS). 

2. Entitlement to service connection for a left ankle disability, to include tendinosis.

3. Entitlement to service connection for chronic fatigue syndrome


REPRESENTATION

Veteran represented by:	Hawaii Office of Veterans Services


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

C. Wendell, Associate Counsel


INTRODUCTION

The Veteran served on active duty from October 1981 to July 1990.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii.

The Veteran testified at a videoconference hearing before the undersigned Acting Veterans Law Judge (AVLJ) in June 2012. A transcript of the hearing is associated with the Veteran's electronic claims file.

As the Board reopened the Veteran's claims for service connection for left knee and ankle disabilities in it June 2014 remand, the issue of reopening as to those claims will not be addressed in this decision. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 239-40 (1995).

The Board remanded all three issues for additional development in June 2014. The identified records and requested examinations having been obtained, the Board finds the directives have been substantially complied with and the matter is again before the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998).

The Board has reviewed the electronic records maintained in both Virtual VA and the Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence.

The issue of service connection for a left knee is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDINGS OF FACT

1. A left ankle disability was not shown in service or within the first post-service year, and has not been shown to be causally or etiologically related to an in-service event, injury or disease.

2. Chronic fatigue syndrome has not been diagnosed at any time during the pendency of this claim.


CONCLUSIONS OF LAW

1. The criteria for service connection for a left ankle disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2014).

2. The criteria for service connection for chronic fatigue syndrome have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2014).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Veterans Claims Assistance Act of 2000 (VCAA)

VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claims. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014).

A. Duty to Notify

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, the evidence VA will obtain on the Veteran's behalf, and the evidence the Veteran 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). 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, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

VA issued a VCAA letter in June 2008, prior to the initial unfavorable adjudication in November 2008. This letter advised the Veteran of what evidence was necessary to substantiate his claims, the evidence VA would obtain, the evidence the Veteran must provide, and how disability rating and effective date are determined. As the letter contained all of the information listed above, VA has met its duty to notify.

With respect to the Board hearing, the United States Court of Appeals for Veterans Claims held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. § 3.103(c)(2) requires that the RO official or AVLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the AVLJ noted the current appellate issues at the beginning of the hearing, and asked questions to clarify the Veteran's contentions and treatment history. The Veteran demonstrated through his testimony that he had actual knowledge concerning what is required to substantiate his claim. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing.

B. Duty to Assist

The duty to assist includes assisting the claimant in the procurement of relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The RO associated the Veteran's service and VA treatment records with the claims file. The Veteran's Social Security records, as well as all identified or submitted private treatment records, have been associated with the claims file. No other relevant records have been identified and are outstanding. As such, the Board finds VA has satisfied its duty to assist with the procurement of relevant records. 

The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. See 38 C.F.R. § 3.159(c)(4). In this case, the Veteran was provided with VA examinations in August 2014. The examinations were adequate because the examiner considered and addressed the Veteran's contentions, reviewed the claims file in conjunction with the examinations, conducted thorough medical examinations of the Veteran, and provided sufficient supporting rationales for the opinions. Based on the foregoing, the Board finds the examination reports to be thorough, complete, and sufficient bases upon which to reach a decision on the Veteran's claims for service connection for a left knee disability, a left ankle disability, and chronic fatigue syndrome. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-05 (2008); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 

Since VA has obtained all relevant identified records and provided an adequate medical examination, its duty to assist in this case is satisfied.

II. Service Connection

Generally, to establish service connection a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(d). In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). Generally, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3).

If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (2013). Continuity of symptomatology requires that the chronic disease have manifested in service. 38 C.F.R. § 3.303(b). In-service manifestation means a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id.

VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C.A. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. 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).

The Veteran contends he is entitled to service connection for a left ankle disability and chronic fatigue syndrome. The Board will address each claim in turn, applying the legal framework outlined above.

A. Left Ankle Disability

The Veteran has a current diagnosis of left ankle tendinosis, and therefore a current disability has been established. Further, a September 1987 service treatment records indicates that the Veteran sprained his left ankle during physical training, and therefore the evidence shows an in-service event, injury or disease. Thus, the crucial issue in this claim is the presence of a causal nexus between the in-service injury and the current disability.

Initially, the Veteran has been diagnosed with left ankle tendinosis, which is not a listed chronic disease for VA purposes, nor is it encompassed by a broader listed term such as arthritis. 38 C.F.R. § 3.309(a). Therefore, service connection based on the presumption in favor or chronic diseases or continuity of symptomatology is not warranted in this particular case. See Walker, 708 F.3d 1331; 38 C.F.R. §§ 3.303(b), 3.307(a), 3.309.

Turning to direct service connection, the Veteran has indicated that he has experienced left ankle pain since service, where he was diagnosed with an ankle sprain, which he is competent to report. The Veteran's girlfriend also provided a statement concerning the current severity of the Veteran's disabilities, and linking them to his active duty service. However, neither the Veteran nor his girlfriend are not competent to opine as to the presence of a causal relationship between his in-service injury and his current disability, as to do so requires medical expertise in the field of orthopedic medicine. Jandreau, supra. 

Further, the Veteran's statements concerning consistent pain since service are in conflict with the medical evidence of record. The Veteran's May 1990 separation examination noted no complaints of left ankle pain and did not diagnose any left ankle disabilities. In addition, the corresponding report of medical history is silent for any complaints of left ankle pain or disabilities. While the Veteran indicated that he has a history of various disabilities, including swollen and painful joints, in the explanation section there was no mention of a left ankle injury. Such inconsistencies undermine the credibility of the Veteran's statements concerning persistent symptoms since service, and render them of little probative value.

Following service, treatment records are silent for any complaints of a left ankle injury or pain from until at least August 1999, despite numerous visits to VA medical centers for complaints of back pain and other issues. While not dispositive of the issue of nexus, such gaps in time without complaint of or treatment for a left ankle disability, in this case a span of at least 10 years following service, weigh heavily against the Veteran's already inconsistent statements concerning persistent symptoms since service. Maxson, 230 F.3d at 1333.

Turning to the medical evidence, the Veteran was provided with a VA examination in August 2014. The examiner indicated that it was less likely than not that the Veteran's left ankle condition is causally related to his active duty service, and specifically his September 1987 injury. The examiner based this opinion on the fact that there was no medical evidence indicating that the Veteran's left ankle sprain in-service had resulted in any sort of chronic ankle condition. As the opinion is based on accurate facts and supported by a rationale, it is entitled to significant probative weight. Nieves-Rodriguez, 22 Vet. App. 295.

The Veteran has also submitted a June 2009 private medical opinion from a chiropractor. The chiropractor opined that the Veteran's left ankle disability was likely, more than not, service-connected. The examiner based this on the fact that the Veteran continued to complain of left ankle pain after the September 1987 event, which the examiner indicated was documented in the Veteran's medical records. However, as noted above there is no medical evidence of complaints of a left ankle disability until at least 1999, and an ankle disability was not formally diagnosed until approximately June 2010, when the Veteran was diagnosed with tendinosis. Prior to that date, VA images from July 2009 and June 2010 indicate that the Veteran's left ankle was normal. 

To the extent that the opinion relies on medical records from around 1999 reflecting the Veteran's statements concerning ankle pain for the past 10 years, mere repetition of the allegations in a medical record does not transform them into competent medical evidence. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Thus, the notation that the Veteran indicated he experienced pain for ten years prior does not constitute medical evidence that there was left ankle pain for 10 years. As there is no medical evidence documenting complaints of pain until at least 1999, the private medical opinion appears to be based on inaccurate facts, and is therefore entitled to no probative weight. Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993).

As indicated above, VA and private treatment records are silent for any complaints of a left ankle disability or any symptoms thereof, despite repeated hospital visits concerning low back pain and other disabilities. A left ankle disability was not diagnosed until approximately June 2010, when a private MRI showed tendinosis of the left ankle. Based on the competent and credible lay and medical evidence of record, the Board finds the preponderance of the evidence is against a finding that the Veteran's current left ankle disability is causally related to his active duty service. As the third element is not met, service connection on a direct basis for a left ankle disability is not warranted in this case.

While the evidence shows that the Veteran has a current disability and an in-service event, injury or disease, the preponderance of the competent evidence weighs against a finding of a nexus. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Ortiz, 274 F.3d at 1364; Gilbert, 1 Vet. App. at 55-57; 38 C.F.R. § 3.102. For these reasons, the claim is denied.

B. Chronic Fatigue Syndrome

The Veteran has in numerous statements indicated that he suffers from chronic fatigue syndrome, and has indicated that his chronic fatigue has been persistent since his active duty service. While the Veteran is competent to relate lay observable symptoms, he is not competent to diagnose himself with chronic fatigue syndrome as that requires medical expertise. Jandreau, 492 F.3d at 1377. 

VA treatment records at no point reflect a diagnosis of chronic fatigue syndrome. While some notations concerning fatigue are present, these relate to side effects from medications and at no point are accompanied by a diagnosis of or attributed to chronic fatigue syndrome. A notation of a complaint of chronic fatigue is present in an April 1983 service treatment record, but this was not accompanied by a diagnosis. The August 2014 VA examiner determined the Veteran had at no point been diagnosed with chronic fatigue syndrome and that there was otherwise insufficient evidence to support a diagnosis of chronic fatigue syndrome, as fatigue is a common symptom of numerous diseases. As there is no competent evidence reflecting a diagnosis of chronic fatigue syndrome, the preponderance of the evidence is against a finding of a current diagnosis, and therefore service connection for chronic fatigue syndrome is not warranted on any basis. Brammer, 3 Vet. App. 223; 38 C.F.R. §§ 3.303, 3.307, 3.309. 

As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Ortiz, 274 F.3d at 1364; Gilbert, 1 Vet. App. at 55-57; 38 C.F.R. § 3.102. For these reasons, the claim is denied.


ORDER

Entitlement to service connection for a left ankle disability is denied.

Entitlement to service connection for chronic fatigue syndrome is denied.


REMAND

VA's duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim. See 38 C.F.R. 
§ 3.159(c)(4). The August 2014 VA examiner indicated that the left knee disability was less likely than not related to service due to the fact that there is no medical consensus concerning the etiology of PVNS and no literature supporting a connection. The June 2009 private opinion indicated that medical literature suggests a link between "twisting injuries," such as the Veteran's, and the development of PVNS. As there is no reason to favor one opinion over the other and the opinions rely on directly contradictory supporting assertions, the Board finds it must remand the claim for an addendum opinion.

Accordingly, the case is REMANDED for the following action:

1. Obtain an addendum opinion from the examiner who provided the August 2014 VA knee examination, or another appropriate medical professional if the examiner is unavailable. The claims file must be reviewed by the examiner and a note that it was reviewed should be included in the report. If the reviewer determines that additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled. After reviewing the claims file, the reviewer should answer the following question:

Is it at least as likely as not (a fifty percent probability or greater) that the left knee disability is related to the Veteran's active duty service, specifically the September 1987 in-service accident?

In the response, the reviewer should address the June 2009 chiropractor opinion indicating that there is medical literature supporting a link between PVNS and "twisting injuries" as well as the June 2009 speculative opinion by Dr. C indicating the knee injury may be related to service. 

A detailed rationale supporting the examiner's opinion should be provided, including citations to supporting literature if possible. 
2. Thereafter, readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period in which to respond.

The Veteran 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 of Veterans' Appeals 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).



____________________________________________
A. C. MACKENZIE
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs