Citation Nr: 1620527 Decision Date: 05/19/16 Archive Date: 05/27/16 DOCKET NO. 09-18 468 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service-connection for arthritis of the spine and bilateral arms. 2. Entitlement to service connection for a right ankle disability. 3. Entitlement to service connection for a right foot disability. 4. Entitlement to service connection for a left ankle disability. 5. Entitlement to service connection for a left foot disability. 6. Entitlement to service connection for a urinary disability, to include enlarged prostate and benign prostate hypertrophy (BPH), to include as secondary to service-connected testalgia, left, status-post varicocelectomy. 7. Entitlement to service connection for an involuntary muscle movement disability, to include of the bilateral hands, and to include as due to an acquired psychiatric disability. 8. Entitlement to service connection for an acquired psychiatric disability, to include one manifested by memory loss. 9. Entitlement to a total disability based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. M. Donahue Boushehri, Counsel INTRODUCTION The Veteran had active military service from June 1993 to July 1998. These matters come before the Board of Veterans' Appeals (Board) from a November 2007 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in San Diego, California. The Veteran initially filed claims for entitlement to service connection for bilateral foot and ankle disorders. The November 2007 rating decision denied the issues of issues of entitlement to service connection bilateral foot and ankle disorders, and the Veteran adequately appealed the issues. However, the statement of the case (SOC) limited the issues to entitlement to service connection for right foot and ankles. As the issues of entitlement to service connection for left foot and ankle disorders have been appealed, but have not been subject of an SOC, the issues remain on appeal and are discussed in the remand below. In October 2014, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In January 2015, the issues were remanded for additional development. The issues of entitlement to service connection for arthritis, a urinary problem, a psychiatric disorder, involuntary muscle movement, and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The evidence does not demonstrate that the Veteran has been diagnosed with a right foot or ankle disorder at any time during the period on appeal. CONCLUSIONS OF LAW 1. The criteria for service connection for right ankle disorder have not been met. 38 U.S.C.A. § 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2015). 2. The criteria for service connection for right foot disorder have not been met. 38 U.S.C.A. § 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSIONS I. Veterans Claims Assistance Act (VCAA) Duties to Notify and Assist VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 C.F.R. §§ 5103, 5103A; 38 C.F.R. § 3.159(b). The required notice letter was mailed in February 2007, prior to the initial adjudication of the claims in November 2007. VA also has a duty to assist the Veteran in the development of the claims. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's service treatment records, post-service VA and private treatment records, records from the Social Security Administration, and statements from the Veteran have been obtained. The Board notes that no VA examination was requested in relation to the issue of service connection for right foot and ankle disorders. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). The third factor, in particular, has a low threshold. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds no reasonable possibility that a VA examination would aid in substantiating the service connection claim for right ankle and foot disorders. See 38 U.S.C. § 5103A(a). The record does not show any evidence establishing that the Veteran has a current right ankle or foot disorder or that a right ankle or foot disorder was occurred in active service or within one year of separation from active service. As such, elements (1) and (2) are absent. Therefore, as discussed in detail below, VA has no duty to provide a VA examination or obtain an opinion in this case. Moreover, the U.S. Court of Appeals for the Federal Circuit has recognized that there is not a duty to provide an examination in every case. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Rather, the Secretary's obligation under 38 U.S.C. § 5103A(d) to provide the Veteran with a medical examination or to obtain a medical opinion is not triggered unless there is an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability. See McLendon, 20 Vet. App. at 81. This standard has not been met in this case, and there is sufficient competent medical evidence of record to make a decision on the claims. Essentially, beyond the Veteran's statements, no evidence is of record to suggest that he has a current right ankle or foot disorder or that any right ankle or foot disorder began during or was otherwise caused by his naval service. His statements alone are insufficient to trigger VA's duty to provide an examination. As noted above, the claims were remanded to the AOJ in January 2015 for additional evidentiary development including obtaining outstanding private treatment records. In April 2015, the AOJ mailed the Veteran a letter asking he either provide a signed medical authorization or obtain and submit the requested private treatment records. The Veteran failed to respond. Accordingly, the remand instructions issued by the Board have been substantially complied with and this matter is once again before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). Finally, the Veteran testified at a Board hearing in October 2014. The hearing was adequate as the Veterans Law Judge who conducted the hearing explained the issues and identified possible sources of evidence that may have been overlooked. 38 C.F.R. 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. II. Service Connection A. Laws and Regulations Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if pre-existing such service, was aggravated therein. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). 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). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that '[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board'). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2014). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. B. Right Foot and Ankle Disorders Regarding his claim for right and left foot disorders, the Veteran reported that he was born with "club feet" and his ankle were broken and he wore braces as a baby. He asserts has right foot and ankles problems due to aggravation of this condition by marching and running required in the military. STRs show that the Veteran did not have a right ankle or foot disorder during his active service. In a January 1992 enlistment medical history, the Veteran reported a history of cramps in legs, history of painful joints, and stated "don't know" as to whether he had foot trouble. The joint problems were noted as knee complaints. A January 1992 enlistment examination showed lower extremities were normal. In a November 1995 medical history report, the Veteran denied foot trouble. In a May 1997 medical history report, the Veteran complained of foot trouble. Physical examination of the lower extremities was normal. In an April 1998 separation medical history report, the Veteran denied foot trouble. He complained of joint pain, but this as noted as due to service-connected knee disabilities. An April 1998 separation examination showed lower extremities as normal. After the Veteran's separation from service, medical records do not document any complaints, symptoms, treatment, or diagnosis of a right ankle or foot disorder. As such, the record does not show any current right ankle and foot disorders. In the absence of proof of a current disability, there can be no valid claim for service connection. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Giplin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (indicating service connection presupposes a current diagnosis of the condition claimed). The requirement that a current disability be present is satisfied 'when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim...even though the disability resolves prior to the Secretary's adjudication of the claim.' McClain v. Nicholson, 21 Vet. App. 319 (2007); see also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Accordingly, the Board finds that the evidence is against the claims and entitlement to service connection for right ankle and foot disorders is denied. ORDER Entitlement to service connection for a right ankle disability is denied. Entitlement to service connection for a right foot disability is denied. REMAND As noted above, the Veteran initially filed claims for entitlement to service connection for bilateral foot and ankle disorders. The November 2007 rating decision denied the issues of entitlement to service connection for bilateral foot and ankle disorders, and the Veteran adequately appealed the issues. A March 2009 DRO decision granted service connection for a left in-grown toe nail. The March 2009 statement of the case (SOC) limited the issues to entitlement to service connection for right foot and ankles. Therefore, the issues of entitlement to service connection for left foot and ankle disorders are remanded to the RO for issuance of a statement of the case and to provide the Veteran an opportunity to perfect an appeal of such issue. See Manlicon v. West, 12 Vet. App. 238 (1999). The Veteran asserts he has an acquired psychiatric disability, to include one manifested by memory loss, caused by, incurred in, or aggravated by active service. In a January 2007 private treatment record, the Veteran asserted his psychiatric condition is worsened by his chronic pain. The Board notes the Veteran is service-connected for bilateral patellofemoral syndrome and a left foot disability. As the Veteran has not undergone a VA examination for his psychiatric disorder, the Board finds a VA examination is necessary. The Veteran asserts he has arthritis of the bilateral arms and spine due to activity in service. VA treatment records include treatment and diagnoses of chronic back pain and arthralgias. The Board notes that in an April 1998 health assessment, the Veteran complained of sore spine and joints. The Veteran has not been afforded a VA examination to determine if he has a diagnosis of arm and spine disabilities, and, if so, whether those disabilities were incurred in or caused by active service. A remand for this claim is necessary. As the Veteran has asserted TDIU and entitlement to service connection for an involuntary muscle movement disability as due to an acquired psychiatric disability, these claims will also be remanded. Finally, the Veteran asserts he has a urinary disorder, to include BPH, as incurred in or due to service-connected testalgia. In a June 1999 fee-based examination report, the examiner included an impression of left testicular pain, associated with obstructive and irritative voiding symptoms, and noted a diagnosis of enlarged prostate, but gave no opinion as to whether the Veteran had a separate, diagnosable urinary problem. The June 2015 fee-based examiner noted that the Veteran has a urinary disorder that is less likely than not a symptom of his testalgia found in service, but gave no rationale for this opinion. As the examination opinions are inadequate, the Board finds an additional VA opinion is necessary. Accordingly, the case is REMANDED for the following action: 1. The RO must issue a statement of the case and notification of the Veteran's appellate rights with respect to the issue of entitlement service connection for left foot and ankle disorders. The Veteran and his representative are reminded that to vest the Board with jurisdiction over this issue, a timely substantive appeal must be filed. 38 C.F.R. § 20.202 (2015). If the Veteran perfects an appeal of this issue, it must be returned to the Board for appellate review. 2. Obtain all outstanding VA treatment and private records related to the Veteran's claimed disabilities, dated since February 2012. Any negative response(s) must be in writing and associated with the claims folder. 3. After completing directive #1, schedule the Veteran for a VA psychiatric examination to determine the nature and etiology of any currently-diagnosed psychiatric disorder. After mental status examination, and review of the claims folder, the examiner should be requested to offer an opinion as to whether: A. it is as least as likely as not (a 50 percent or greater probability) that the Veteran has a diagnosis psychiatric disorder that is caused by or aggravated by active service. B. it is as least as likely as not (a 50 percent or greater probability) that the Veteran has a psychiatric disorder that is caused by or aggravated by service-connected testalgia and right and left patellofemoral syndrome. The term 'aggravation' means a permanent increase in diabetes mellitus, that is, an irreversible worsening of diabetes beyond the natural clinical course and character of the condition due to service-connected posttraumatic stress disorder as contrasted to a temporary worsening of symptoms. A complete rationale for the opinion should be provided. 4. After completing directive #1, schedule the Veteran for a VA orthopedic examination to determine the nature and etiology of any currently-diagnosed back or spine disorder. After physical examination, and review of the claims folder, the examiner should be requested to offer an opinion as to whether the Veteran has a diagnosis of arthritis of the spine or bilateral arms. If so, the examiner should opinion whether it is as least as likely as not (a 50 percent or greater probability) that any diagnosed spine or arm disorder was caused by or aggravated by active service. A complete rationale for the opinion should be provided 5. After completing directive #1, return the claims file to the June 2015 fee-based examiner for an addendum opinion. The examiner should specifically address whether: A. it is as least as likely as not (a 50 percent or greater probability) that the Veteran has a diagnosis urinary problem, and, if so, whether the urinary disorder that is caused by or aggravated by service-connected testalgia. B. it is as least as likely as not (a 50 percent or greater probability) that the Veteran has a prostate disorder that is caused by or aggravated by service-connected testalgia. The term 'aggravation' means a permanent increase in diabetes mellitus, that is, an irreversible worsening of diabetes beyond the natural clinical course and character of the condition due to service-connected posttraumatic stress disorder as contrasted to a temporary worsening of symptoms. A complete rationale for the opinion should be provided. 6. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence, including considering if referral for extraschedular consideration is warranted. If any claim remains denied, the Veteran and his representative should be issued a Supplemental Statement of the Case, and the appeal returned for appellate review. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or matters 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). ______________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs