Citation Nr: 1512753 Decision Date: 03/25/15 Archive Date: 04/01/15 DOCKET NO. 11-17 948 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a right leg disability, to include as secondary to the service-connected left leg stress fracture. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. J. Tang, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1990 to September 1994. This case is before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA) that denied reopening the previously denied claim of service connection for a right leg disability. In April 2014, the Board reopened and remanded the case. In October 2014, the Board again remanded the case for further evidentiary development. The claim was denied in a January 2015 supplemental statement of the case, and the case is again before the Board for further appellate proceedings. All documents on the Virtual VA paperless claims processing system and the Veterans Benefits Management System have been reviewed, to include a transcript of the November 2012 Board hearing presided over by the undersigned Veterans Law Judge. FINDING OF FACT A chronic right leg disability was not shown in service, and a current right leg disability is not related to an injury or disease of service origin, nor shown to be proximately due to or aggravated by a service-connected disability. CONCLUSION OF LAW A chronic right leg disability was not incurred in or aggravated by service, and service connection on a secondary basis is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION Compliance with Prior Remand In October 2014, the Board remanded the claim and directed the AOJ to request the Veteran to provide information as to outstanding treatment records, to obtain outstanding VA treatment records, and to afford the Veteran a VA examination to determine the nature and etiology of a right leg disability. In November 2014, the AOJ sent the Veteran a letter requesting that he provide information and releases as to any outstanding treatment records, but the Veteran has not responded to this date. Therefore, the AOJ was not able to obtain any potentially relevant outstanding private treatment records. The AOJ obtained outstanding VA treatment records, and the Veteran was afforded a VA examination in November 2014. The VA examiner provided the requested opinion and supported the opinion with adequate rationale. The Veteran's claim was readjudicated in a January 2015 supplemental statement of the case. Therefore, the Board's prior remand instructions have been substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that where the remand orders of the Board are not substantially complied with, the Board errs as a matter of law when it fails to ensure compliance). Duties to Notify and Assist VA has met all the duty to notify and duty to assist provisions under the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.326 (2014). Duty to Notify When VA receives a complete or substantially complete application for benefits, it will notify the Veteran of (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA must also provide the Veteran with information regarding how VA determines effective dates and disability ratings. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre-adjudication VCAA notice by letter in April 2010, in which the Veteran was notified of how to substantiate his claim for service connection, information regarding the allocation of responsibility between the Veteran and VA, and information on how VA determines effective dates and disability ratings. The Board finds that VA has fulfilled its duty to notify. Duty to Assist VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claim. Service treatment records, post-service treatment records, and lay statements have been associated with the record. Further, during the appeal period the Veteran was afforded VA medical examinations in in May 2014 and in November 2014. The examiners each conducted an examination, performed the necessary testing, and together provided sufficient information such that the Board can render an informed decision. The Board finds that the VA examinations together and in conjunction with the other lay and medical evidence of record are adequate for purposes of determining service connection. The Board notes that the Veteran's service treatment records from Reynolds Army Community Hospital from January 1991 to March 1991 are unavailable. See e.g., September 2011 Memorandum of Formal Finding on the Unavailability of Service Treatment Records; October 2014 Veteran statement. The Board acknowledges that because the Veteran's complete service treatment records are unavailable, VA has a heightened duty to assist. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). However, because the Board is denying the claim based on the determination that the Veteran has no present right leg disability, as discussed below, the Board concludes that the Veteran's complete service treatment records would not include evidence dating during the current appeal period for the claim for service connection for a right leg disability. Thus, the Board concludes that remand for further efforts to obtain the Veteran's complete service treatment records is not warranted as such records would not possibly provide new information to substantiate the claim for service connection for a right leg disability. 38 C.F.R. § 3.159. Because is no indication in the record that any additional evidence pertinent to the claim is available and unassociated with the file, the Board concludes VA has satisfied its duty to assist. Service Connection A veteran is entitled to VA disability compensation for service connection if the facts establish that a disability resulted 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; 38 C.F.R. § 3.303. Generally, to establish a right to compensation for a present disability, a veteran must show (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). Analysis The Veteran contends that he has a right leg disability, to include residuals of a reported in-service right leg fracture, that is related to service. The Veteran also contends that he has a right leg disability that is secondary to his service-connected left leg stress fracture. The Board notes that the Veteran is certainly competent to report his symptoms and observations. Barr v. Nicholson, 21 Vet. App. 303 (2007). However, the Board considers the diagnosis of and determination as to etiology of a right leg disability beyond its own competence to evaluate based upon its own knowledge and expertise. It follows that the Veteran's lay opinions as to the diagnosis and cause of a right leg disability are also not competent evidence, although the Veteran's observed symptoms described may be useful to an expert in evaluating whether the Veteran has a right leg disability and in determining the etiology thereof. See Jandreau v. Nicholson, 492 F.3d 1372 (2007); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). Because the record does not indicate that the Veteran has medical expertise, the Veteran's lay opinion that he has residuals of a right leg fracture or other right leg disability and that such disability is related to service or secondary to his left leg disability is of no probative value. Here, the Board finds that the competent and probative evidence does not support a finding of a current right leg disability. The Board acknowledges the June 2011 private treatment record and opinion by Dr. R. W., who conducted an orthopedic evaluation and reviewed the Veteran's medical and social history. The Veteran complained of pain over the area of the right fibula. Dr. R. W. stated that x-rays of his right tibia and fibula reveal "evidence of an old stress fracture located 4 in. below the knee with periosteal elevation on both AP and lateral views." The impression was "status post right fibula fracture." Dr. R. W. stated that the Veteran's fracture appears to be well-healed, but he may have produced some scar tissue accounting for his symptoms. The notation that the Veteran "may have produced some scar tissue accounting for his symptoms" is of no probative value, as the use of terms like "possibly" and "maybe" is too indefinite and speculative to be probative in nature. See Bostain v. West, 11 Vet. App. 124, 127-28, quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (a medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a causal relationship); see also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (a doctor's statement framed in terms such as "could have been" is not probative). The Board also acknowledges that the May 2014 VA examiner noted that the Veteran now has or had a diagnosed stress fracture of the right leg in 1991. The examiner noted that the Veteran's history of right leg stress fracture is pursuant to his subjective reports. The May 2014 VA examiner stated that the x-ray report was negative, and diagnosed the Veteran with right old fibular stress fracture. Because these notations are unclear as to whether the Veteran currently has a right leg disability, to include residuals of the diagnosed right old fibular stress fracture, the May 2014 VA examination of no probative value in determining whether the Veteran has a right leg disability during the appeal period. On the other hand, the Board finds that the November 2014 VA examination and opinion is of significant probative value, as the VA examiner has the requisite medical expertise to render a diagnosis of a right leg disability and to render a determination as to etiology of a right leg disability. Further, the VA examiner provided rationale for his opinion and based the opinion on the Veteran's history, lay statements, a review of the claims file, and examination of the Veteran. On examination, the Veteran reported that he continues to experience bilateral mid tibial shaft pain, and that he wears a simple neoprene compression sleeve on his right mid tibial area for comfort and support. The Board acknowledges that the November 2014 VA examiner also noted that the Veteran now has or had a diagnosed stress fracture of the right tibia in 1991. However, this notation was apparently based on the Veteran's subjective reports, as ultimately the same examiner expressly diagnosed the Veteran with "chronic right leg mid tibial pain, etiology undetermined." The examiner acknowledged that the 2011 x-rays apparently revealed evidence of an old stress fracture, but he noted that repeat x-rays in 2014 were normal. The examiner also stated that current x-rays revealed no abnormalities, to include residuals of remote stress fractures or any osteoarthritis. The examiner stated that MRIs were ordered and are pending, and that he will review them and add any additional comments as indicated; however, the examiner did not add any additional comments or submit an addendum opinion regarding the MRIs. The Board concludes that the examiner's opinion was unchanged after review of the MRIs. The Board acknowledges that the Veteran has complained of pain that shoots down the lower leg to the foot or ankle, and there is objective tenderness of the right knee. See e.g., May 2014 and November 2014 VA examinations. The Board also acknowledges that on VA examination in May 2014, there was some right knee loss of range of motion with pain on motion. However, on VA examination in November 2014, right knee range of motion was normal. Further, the Veteran denied knee problems on VA examination in November 2014. Thus, the Board finds that the Veteran's limited range of motion of the right knee in May 2014 was temporary. The Board has considered the Veteran's reports of his right leg symptom of pain. However, pain by itself is not a disability. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). Here, though Dr. R. W. diagnosed the Veteran with right leg old stress fracture, he did not render a probative diagnosis of any residuals of stress fracture, and he stated that the fracture was well-healed. The November 2014 VA examiner diagnosed the Veteran with chronic right leg mid tibial pain. In sum, there is no competent diagnosis of record of a current right leg disability. Accordingly, service connection is not warranted for the right leg pain alone. Because there is no competent and probative evidence of a current right leg disability, to include residuals of right leg fracture, the preponderance of the evidence is against a finding that the Veteran has a current right leg disability. The Board acknowledges that the Veteran has submitted lay statements that tend to show that he was diagnosed and treated for a right leg stress fracture in service from December 1990 to March 1991. See October 2010 Form 21-4142; June 2011 Form 9 Appeal; August 2011 Veteran statement; September 2011 lay statement from C. B. For the purpose of completeness, the Board will assume for the sake of argument that the Veteran has a current right leg disability, diagnosed as chronic right leg mid tibial pain, and the Board will also assume arguendo that a right leg injury or disease, to include right leg stress fracture, happened during service. However, the Board finds that the competent and probative evidence does not show a relationship between the Veteran's current chronic right leg disability and the in-service right leg injury or disease. Further, the Board finds that the competent and probative evidence does not show that the Veteran's right leg disability is secondary to the left leg disability. The most probative competent opinion on the subject, that of the November 2014 VA examiner, stated that the diagnosed chronic right leg mid tibial pain has an undetermined etiology. The November 2014 VA examiner opined that it is less likely than not that the diagnosed right leg disability is etiologically related to service, including the reported right leg injury in service. He also opined that it is less likely than not that the right leg disability was caused by or aggravated beyond the natural progress by the service-connected left leg stress fracture. The November 2014 VA examiner noted that there is no documentation of the right leg injury in the service treatment records, and therefore there is no documented proof of a right leg injury in service. He further stated that current x-rays reveal no abnormalities of either leg, to include residuals of remote stress fractures or any osteoarthritis. The November 2014 VA examiner stated that thus it is unlikely that the remote left leg stress fracture in 1990 is causing any right leg disability at the present time, or that it has aggravated the current right leg condition. Given the November 2014 VA examination and Dr. R. W.'s opinion that the right leg old stress fracture is well-healed, the Board finds that the preponderance of the evidence does not support a finding that the Veteran has a chronic right leg disability that is related to an in-service disease or injury. Further, given the November 2014 VA examination, the Board finds that the preponderance of the evidence does not support a finding that the Veteran has a chronic right leg disability that was proximately due to or aggravated by the service-connected left leg disability. Therefore, service connection for a right leg disability is not warranted. 38 C.F.R. §§ 3.303, 3.310; see Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). As the preponderance of the evidence is against the Veteran's claim for service connection for a right leg disability, the claim must be denied. 38 U.S.C.A. § 5107. ORDER Entitlement to service connection for a right leg disability is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs