Citation Nr: 1601485 Decision Date: 01/13/16 Archive Date: 01/21/16 DOCKET NO. 11-15 152A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for a bilateral foot disorder. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD Marcus J. Colicelli, Associate Counsel INTRODUCTION The Appellant served on active duty for training from May 1985 to August 1985 with the U.S. Army National Guard of California. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Appellant filed a Notice of Disagreement (NOD) in December 2009 and the RO issued a Statement of the Case (SOC) in April 2011. In June 2011, the Appellant perfected a timely appeal of the claim with the filing of a VA Form 9 (substantive appeal). The Board notes that the November 2009 rating decision denied the Appellant's claims on the basis that no new and material evidence had been submitted since the claims for service connection were initially denied in June 1987. Generally, once an issue is finally denied, it may be reopened upon the submission of new and material evidence. However, after the June 1987 rating decision, relevant official service department records that existed but had not been associated with the claims file were received. Specifically, the RO later obtained the Appellant's Report of Separation and also a legible copy of a page from her entrance examination in May 1985 (the previous copy available to the RO at the time of the June 1987 denial was illegible as noted in the February 1987 deferred rating decision). Accordingly, because this information is relevant to her service connection claims, the Board will reconsider the claims for service connection for a low back disorder and for a bilateral foot disorder on the merits. See 38 C.F.R. § 3.156(c)(i) (2015). In December 2013, the Appellant testified at a Board videoconference hearing before the undersigned. A transcript of this hearing is associated with the file. In July 2014, the Board remanded this claim for additional development. That development having been completed, the claim is now ready for appellate review. This appeal was processed using the VBMS paperless claims processing system. Accordingly, any future consideration of this Appellant's case should take into consideration the existence of this electronic record, as well as her Virtual VA paperless claims file. FINDINGS OF FACT 1. The Appellant's low back disorder is not causally or etiologically due to service. 2. The Appellant's bilateral foot disorder is not causally or etiologically due to service. CONCLUSIONS OF LAW 1. Service connection for a low back disorder is not established. 38 U.S.C.A. §§ 101, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.6, 3.303 (2015). 2. Service connection for a bilateral foot disorder is not established. 38 U.S.C.A. §§ 101, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.6, 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Appellant's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Appellant or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). I. Duties to Notify and Assist Under applicable law, VA has a 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, 3.326(a) (2014). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, 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). Proper notice from VA 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. This notice must be provided prior to an initial unfavorable decision on a claim by the AOJ. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). With respect to the Appellant's claim for service connection, the November 2009 rating decision indicates the Appellant received notice regarding what information and evidence is needed to substantiate her claim for service connection, as well as what information and evidence must be submitted by the Appellant and what information and evidence will be obtained by VA in a January 2009 VCAA letter which is not contained in the electronic file. In any event, the record further shows that the Appellant had actual knowledge as to the criteria for entitlement to service connection, as the Appellant has demonstrated actual knowledge of the elements needed to substantiate her claim. Indeed, she has articulated her contentions throughout the course of the appeal, including at a video conference hearing, and she has had a fair opportunity to participate in the appeal. The Appellant has neither alleged nor demonstrated any prejudice and the record does not otherwise show such prejudice. 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, falls upon the party attacking the agency's determination). Moreover, correspondence from the RO dated April 2011 provided the Appellant with information concerning the evaluation and effective date that could be assigned should service connection be granted, pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006). The issue was last readjudicated in a September 2015 supplemental statement of the case (SSOC). Accordingly, VA has no outstanding duty to inform the Appellant that any additional information or evidence is needed. VA also has a duty to assist the Appellant in the development of the claim. This duty includes assisting the Appellant in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the Board finds that all necessary development has been accomplished, the regional office has obtained private medical records. Pursuant to the July 2014 remand instructions, the Appellant was informed that Social Security Administration (SSA) disability records were unavailable. See May 2015 VA notification letter. Therefore, appellate review may proceed without prejudice to the Appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). However, it is important to note that the Appellant's service records, with the exception of her entrance examination and DD214, are unavailable from the National Personnel Records Center (NPRC) in St. Louis, Missouri. The Board recognizes that there is a heightened obligation to assist the Appellant in the development of the case, a heightened obligation to explain findings and conclusions, and a heightened duty to consider carefully the benefit of the doubt rule in cases, such as in this situation, in which records are presumed to have been, or in actuality were, destroyed was in the possession of the government. See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005) ("[W]hen VA is unable to locate a claimant's records, it should advise him to submit alternative forms of evidence to support his claim and should assist him in obtaining sufficient evidence from alternative sources"); Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005) (citing O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). Significantly, the Appellant was advised of the unavailability of these documents and was advised that she may submit evidence from alternative sources to establish her claim for service connection. See October 2009 VA 10 Day Letter; see also October 2009 Formal Finding of Unavailability. She also demonstrated actual knowledge of this fact during the December 2013 Board hearing. Pursuant to the Board's July 2014 remand, she was also provided with an NA Form 13055 to complete so that additional efforts could be made to locate records from other sources in an attempt to reconstruct the lost service data. See M21-MR Part III.iii.2.E.26 (pertaining to records destroyed at the NPRC). The Appellant completed this form in August 2014. Further, in August 2014 a Personnel Information Exchange System (PIES) request for service treatment and military personnel records was also made. The response was negative in August 2014. Prior requests to the Office of the Adjutant General, California National Guard resulted in receipt of partial service treatment records in February 2009. In addition, the Appellant has submitted lay statements and oral testimony during the December 2013 Board hearing in support of her claims. It is acknowledged that there is a duty to fully explain the issues still outstanding that are relevant and material to substantiating the claim and a duty to suggest that a claimant submit evidence on an issue material to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record. Procopio v. Shinseki, 26 Vet. App. 76 (2012) (citing Bryant v. Shinseki, 23 Vet. App. 488, 492, 496 (2010)). In this case, information was solicited regarding the nature and etiology of the Appellant's back and foot conditions. Moreover, to the extent that there may be outstanding evidence material to substantiating the claim, the undersigned remanded the appeal in July 2014 so that the Appellant would have an opportunity to submit a NA Form 13055 for the reconstruction of lost service records. Accordingly, consistent with Procopio and Bryant, the duties set forth in 38 C.F.R. § 3.103(c)(2) have been complied with. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on a claim, as defined by law. The record indicates that the Appellant participated in a VA examination in August 2014, the results of which have been included in the claims file for review. The examination involved a review of the claims file, and a thorough examination of the Appellant, supported by sufficient rationale. Therefore, the Board finds that the VA examination is adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Given the foregoing, the Board finds that the VA has substantially complied with the duty to obtain the requisite medical information necessary to make a decision on the Appellant's claim. The Board is also satisfied as to substantial compliance with its July 2014 remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). In July 2014, the Board remanded this claim, in pertinent part, for the AOJ to send the Appellant an NA Form 13055 as discussed above; request SSA disability records; procure an outstanding 2005 medical record; and provide the Appellant examinations for her back and feet. In compliance with the remand instructions, all outstanding requests were made and additional evidence was added to the record. Id. Also, the medical opinion from August 2014 which conforms to the remand instructions has been added to the record, as well as a readjudication of the claim, which was accomplished in the September 2015 Supplemental Statement of the Case (SSOC). Thus, the Board finds that there has been substantial compliance with its remand directives. Id. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Appellant's claim. Therefore, no further assistance to the Appellant with the development of evidence is required. II. Service Connection Applicable Laws Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999). When a claim for VA benefits is based only on a period of active duty for training, there must be evidence that the appellant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during the period of active duty for training. See 38 U.S.C.A. §§ 101(2), (22), (24); 38 U.S.C.A. § 1110; Acciola v. Peake, 22 Vet. App. 320 324 (2008). In the absence of such evidence, the period of active duty for training would not qualify as "active military, naval, or air service," and the appellant would not qualify as a "veteran" by virtue of the active duty for training alone. 38 U.S.C.A. § 101(2) (24); see Acciola, 22 Vet. App. at 324. Further, the U.S. Court of Appeals for Veterans Claims has held that, without previously established veteran status, the presumptions of service connection, sound condition, and aggravation are inapplicable. See generally Bowers v Shinseki, 26 Vet. App. 201, 204 (2013) (aff'd Bowers v Shinseki, 748 F 3d 1351 (2014); Smith v Shinseki, 24 Vet. App. 40, 45-48 (2010); Acciola, 22 Vet. App. 320. In determining whether service connection is warranted for a disability, 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 the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Facts The Appellant is seeking service connection for lower back and bilateral foot disorders. She asserts that she injured her back "unloading the chow truck, picking up one of the large Kool-Aid containers," and that her feet were injured through ill-fitting army boots that caused her to be "given orthopedic shoes to wear." See March 2011 VA Form 21-4138; see also December 2013 Board Hearing transcript. As discussed above, the majority of the Appellant's service treatment records have unfortunately been determined to be missing. A copy of the Appellant's May 1985 entrance examination and self-report of medical history is of record, as is her DD214. The entrance examination notes a normal clinical evaluation of the Appellant and the DD214 does not provide any pertinent medical information. However, private medical records dated contemporaneous with the Appellant's service and throughout the year following her discharge have been associated with the claims file. See January 1985 - June 1986 Contra Costa Health Center outpatient notes. In September 1985, a month after her August 1985 discharge, the Appellant sought treatment for her "injured back & feet" which she reported as being hurt while in basic training, "lifting a heavy object." See September 1985 Contra Costa health Center. The Appellant was diagnosed with an L-5 strain and Achilles tendonitis. Id. An October 1985 treatment notes that the Appellant's right and left Achilles tendons ached when she walked, and that her lower back pain was a dull, steady ache that began "since 6/10 lifting Kool-Aid tank." Id. Also in October 1985, the Appellant underwent a PAP smear that provided "abnormal" results, demonstrating "extensive carcinoma in situ." Id. Thereafter, in February 1986 the Appellant sought treatment for her "back & neck pain (chronic)" at the West Oakland Health Center. See February 1986 West Oakland Health Center. The treating physician noted that the Appellant's "diffuse chronic spinal aches" had an unclear etiology. Id. However, in discussing the Appellant's "cervical carcinoma in-situ," the physician noted that the "bone pain may represent mets." Id. Following the 1986 medical documentation, the Appellant sought treatment in March 2005 for "left sided radicular pain and paresthesia." See March 2005 Contra Costa Health Center. An x-ray revealed "disc degeneration and spondylosis," noting a "mild narrowing of the L3-4 disc space." A December 2010 private physician opined that this 2005 x-ray, which evidences osteoarthritis, is the Appellant's only medical record since 2000 "of the slightest relevance to any back or foot injury." See December 2010 Contra Costa Health Services correspondence. Following a review of the Appellant's record dated back to the year 2000, the examiner concluded that "nothing in the record can conclusively or compelling link the patient's complaints to any service connected disability." Id. The Appellant underwent a VA examination in August 2014. See August 2014 VA examination. Following a review of the Appellant's file and an in-person examination, the Appellant was diagnosed with degenerative arthritis of the spine and bilateral pes planus. Id. The examiner also noted the Appellant's severe degenerative joint disease (DJD) of the knees, the Appellant's chronic low back pain due to DJD, and history of bilateral feet cramping with bunions. Id. The examiner identified the diagnosis of DJD present in the 2005 x-ray. Regarding her medical history, the examiner noted the lack of STRs, but identified the Appellant's September 1985 private treatment session where she indicated hurting her feet and back while in basic training and was diagnosed with "L-S strain and Achilles tendonitis." Id. Thereafter, the examiner noted the Appellant's continued low back pain in October and subsequent abnormal pap smear that "indicated cervical cancer," leading eventually to a "total hysterectomy." Id. The examiner noted that the Appellant's "cervical cancer was the cause of LBP at that time," and that the medical record does not show a continuation of pain afterwards. Id. In light of these facts, the examiner concluded that the Appellant's current back disorder is less likely than not related to her in-service report of "lifting heavy container during military service." Id. Specifically, the examiner notes that the Appellant's current lower back pain "is due to DJD of LS spine," a condition which did not exist in September 1985. The examiner also identifies that "it appears that cervical cancer was the cause" of the Appellant's September and October lower back pain, noting that "available medical notes" do not demonstrate a continuation. Regarding the Appellant's current bilateral pes planus, the examiner similarly concluded that the disorder was "less likely than not" related to the Appellant's military service as the Appellant's current disorder is not related to the September 1985 diagnosis of Achilles tendonitis or the "use of ill-fitting boots." Id. Analysis The evidence of record demonstrates current diagnoses of DJD of the lumbar spine and bilateral pes planus. See August 2014 VA examination. As such, the first element of service connection under Shedden, a current disability, has been met. As noted, the Appellant has asserted that she injured her back while lifting a heavy container in-service, and her feet through the wearing of ill-fitting military boots. The Board finds the Appellant credible and consistent throughout the claim period with respect to the history she has reported. This is further supported by her statements made to treating physicians contemporaneously to her discharge from service. The Board recognizes that the Appellant's service treatment records are not fully available to provide evidence supporting the claim, and that the Board therefore has a heightened duty to consider the benefit-of-the-doubt rule. Cromer v. Nicholson, 19 Vet App 215 (2005). A lay witness may be competent to testify to the occurrence of an in-service injury or incident where the issue is factual in nature. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); see also McClain v. Nicholson, 21 Vet. App. 319, 320-21 (2007). Here, the Board finds that the Appellant is competent to state that she suffered from an injury during service. As such, Shedden element (2) has been satisfied. See Shedden, supra. Lastly, the record must exhibit evidence of a nexus between the claimed in-service injury and the current disorder. It is not in dispute that the Appellant now has a current diagnosis of DJD of the lumbar spine and bilateral pes planus, as such is shown by the August 2014 VA examination. Further, an in-service injury has been conceded. What remains necessary to substantiate her claims are competent evidence of a nexus between the current disorders of her lower back and feet and the in-service trauma. There is no persuasive evidence that the Appellant's DJD of the lumbar spine manifested in service. The earliest post-service record of this issue is a June 2005 x-ray. As noted by the August 2014 examiner, DJD of the lumbar spine "did not exist during 1985". Moreover, the August 2014 examiner identified that the Appellant's 1985 lower back complaints appeared to be related to her cervical cancer, as likewise opined by the February 1986 physician in that "bone pain may represent mets." The August 2014 examiner supported this rationale further by thereafter noting that the pain did not continue in the medical record after these 1985 incidences. Consequently, service connection for DJD of the lower back on the basis that it became manifest in service or is otherwise etiologically related to service is not warranted. The Board also finds that the preponderance of the evidence is against the Appellant's claim seeking service connection for a bilateral foot disorder, including pes planus/flat foot. The only medical evidence that directly addresses the matter of a nexus between the Appellant's current bilateral foot disorder and her service/injury therein, with adequate supporting rationale, is the report of the August 2014 VA examination, when the examiner opined that the Veteran's bilateral foot complaints are unrelated to her service or any injury therein. The physician noted the history of the claimed and diagnosed disorders and thoroughly explained the rationale for the opinion, noting that the 1985 diagnosis of Achilles tendonitis and the use of "ill-fitting military boots" were unrelated to the current condition of her feet. The Board finds this evidence highly probative in the matter at hand (as the examiner is a medical professional qualified to provide it and supports it with explanation of rationale and citation to supporting factual data). Because there is no medical evidence to the contrary, the Board finds the August 2014 VA examiner's opinion to be persuasive. The Appellant's lay statements in support of her claim have been considered. The Board notes that the Appellant is competent to comment on any symptoms, such as pain. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Board finds that while the Appellant clearly believes that she has back and feet disorders as a result of her time in service, as a layperson without any medical training and expertise, she is not qualified to render a medical opinion regarding the etiology of her current diagnoses, which the Board notes are complex medical questions. See Id. at 1376-77 (noting general competence to testify as to symptoms, but not to speak as to diagnosis or etiology except in limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg). Moreover, the Board notes the December 2010 private physician's review of the medical record since 2000, opining that there was "nothing of the slightest relevance to any back or foot injury" contained therein. The Board does not dispute the fact that the Appellant has current diagnoses of DJD of the lower back and bilateral pes planus, or that the Appellant experienced back and foot pain while in-service. However, the Board finds the August 2014 VA examination to be the most probative evidence of record regarding the etiology of the Appellant's current disorders. In summary, the most probative evidence is against the Appellant's claims for service connection. As the preponderance of the evidence is against her claim, the doctrine of reasonable doubt is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the appeal is denied. ORDER Entitlement to service connection for a low back disorder, is denied. Entitlement to service connection for a bilateral foot disorder, is denied. ____________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs