Citation Nr: 1752317 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 11-30 600 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for headaches. 2. Entitlement to service connection for a left leg disability. 3. Entitlement to service connection for a left ankle disability. 4. Entitlement to service connection for rectal fissures. REPRESENTATION Veteran represented by: American Legion ATTORNEY FOR THE BOARD N.Yeh, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from February 1985 to September 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office in Pittsburg, Pennsylvania. The matter was remanded in August 2016 for further development. It is now back before the Board for appellate consideration. FINDINGS OF FACTS 1. The Veteran does not have headaches that are etiologically related to service. 2. The preponderance of the probative evidence is against a finding that the Veteran's left leg pain is related to his military service or any injury sustained therein. 3. The competent and probative evidence of record is against finding a left ankle disability is related to military service. 4. The evidence of record does not show a current diagnosis of rectal fissures. CONCLUSIONS OF LAW 1. The criteria for service connection for headaches have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for a left leg pain have not been met. 38 U.S.C.A. §§ 1110 , 1131 (West 2014); 38 C.F.R. §§ 3.303 (2017). 3. The criteria for service connection for left ankle disability have not been met. 38 C.F.R. §§ 1110, 1111, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 4. The criteria for service connection for rectal fissures have not been met. 38 U.S.C.A. §§ 1110 , 1131, 5103 (West 2014); 38 C.F.R. §§ 3.303 , 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, including apprising him of the information and evidence he is expected to provide versus that VA will obtain for him. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran was provided this required notice and information regarding his claim for service connection for his headaches, left leg, left ankle, and rectum fissures in a letter dated February 2010. He has not alleged any notice deficiency during the processing and adjudication of his claims. Next, VA has a duty to assist the claimant in the development of the claim. This duty includes assisting him in the procurement of service treatment records, private treatment records, providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The record reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein. The Veteran was afforded a VA examination in November 2016. The Board finds that the VA examination reports are adequate to decide the case because it is predicated on a review of the claims file, as well as on an examination during which a history was solicited from the Veteran. Moreover, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disabilities since he was last examined in November 2016. See 38 C.F.R. § 3.327(a) (2016). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (noting that the passage of time alone, without an allegation of worsening, does not warrant a new examination); VAOPGCPREC 11-95 (April 7, 1995). II. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38. U.S.C.A. § 1110; 38 C.F.R. § 3.303 (a)(2016). "To establish a right to compensation for a present disability, 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, i.e. a nexus, between the present disability and the disease or injury incurred or aggravated during service." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of service-connected disease or injury, or that service-connected disease or injury has aggravated the nonservice-connected disability for which service connection is sought. See 38 C.F.R. § 3.310 (2016). Service connection for certain chronic diseases, such as arthritis, will be rebuttably presumed if manifest to a compensable degree within one year after separation from active service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Moreover, for such diseases, an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Lay evidence may be competent and sufficient to establish a diagnosis of a condition in the following circumstances: (1) when the condition is simple, such as a broken leg, as opposed to when the condition is more complex, such as a form of cancer; (2) when the layperson is reporting a contemporaneous medical diagnosis, or; (3) when 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 persons can also provide an eye-witness account of an individual's visible symptoms. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. a. Headaches The Veteran's Service Treatment Records (STRs) reflect a complaint of tension headaches in August 1989. Then in August 1991 and October 1991, the Veteran reported headaches caused by neck pain. However, upon separation from service, the Veteran did not report continued complaints of headaches or migraines. In April 1992, the Veteran marked "no" in reporting severe and frequent headaches. The Veteran's VA treatment record dated December 2009 showed that the Veteran's neurology examination revealed no reports of headaches, dizziness, blurred vision, or weakness. In June 2011, the Veteran's VA treatment record also showed that the Veteran once again denied the occurrences of headaches. His treatment records in February 2012, however, reported a headache that related to a pinched nerve in his neck. Later in October 2012, he reported "spinning headaches." In November 2016, the Veteran was afforded a VA examination to assess the etiology of his headaches. There, the Veteran told the examiner that he has suffered from headaches since his military service. He also told the examiner that he sustained a head injury when he was four years old. He was hit by a large rock in the head and after that incident, the Veteran reported that he felt "weird in the head." The Veteran specifically believes that the headaches manifested as a result of service when he was working on a security site in 1988 to 1991. During that time, he was required to wear a helmet throughout the day, and that the job was very stressful. It is his contention that the stress of the work contributed to his headaches. The Veteran also reported that that during service, he sustained a pinched neck in 1987. After seeing a chiropractor, he reported that his headaches improved. He describes the headache as pressure pain that starts at the base of his skull and that it has been there for the past 20 years. He also stated that it would occur about 2 to 3 times a week and that it would last several hours until he can apply ice or heat to the areas. To alleviate the pain, he uses ice packs, massages, and Tylenol. Upon examination, the VA examiner found that the Veteran's neck had full range of motion, with no masses, no jugular venous distension, and no bruits. The examiner however noted pain to palpation at the base of the skull and cervical neck, and pain in bilateral long muscles of the neck to deep palpation. It was also noted that the Veteran works as an electrician and often tilts his head back, which is a common practice as part of his job. This motion exacerbates his pain, thus affecting his employment. In reviewing the collective medical evidence, the VA examiner found that the Veteran did not report any headaches until approximately 17 years after his separation from service, since the report was not made until 2012. Thus, the examiner could not find a clinical nexus between the Veteran's "sporadic" complaints of headaches during his active military service and the Veteran's current complaint of headaches. Therefore, it is less likely than not that the Veteran's headache incurred or caused by service. The Board finds that the probative medical evidence of record does not support a conclusion of a nexus relationship between the Veteran's headaches and his service. While there were reports of headaches during his service, in 1989 and 1991, later treatments do not support a claim of continuous headaches. The Board may reasonably infer that whatever headaches the Veteran experienced in service had resolved in service. The absence of findings and reports of headaches until approximately 17 years after service weights against finding that the headaches are related to service. While the Veteran is competent to report headaches, he lacks the requisite medical expertise to link his headaches to his military service. While a layperson is competent to report observable symptomology and diagnose a simple medical condition, the specific issue in this case falls outside the realm of a layperson's knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Accordingly, the Board assigns them no weight. Based on the foregoing discussion, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection. b. Left Leg Disability (Residuals of a broken leg) In June 1992, during service, the Veteran reported a fractured fibular. Other than a complaint about his ankle in 1991, there were no other reports or complaints relating to his leg during service. In his November 2016 VA examination, the Veteran was found to have left lower leg pain and a meniscal tear in both knees. The Veteran stated to the examiner that his left lower leg pain slows him down after standing for a long period of time and while he is working. Because of the pain, the Veteran reported taking longer breaks during work. The examiner found that the meniscal tear however, was not related to service as it occurred and was treated in 2010. Therefore, the VA examiner concluded that there was no clinical medical nexus between the Veteran's bilateral meniscal tears and his military service. Upon examination of the left leg, the examiner found that the Veteran demonstrated normal muscle strength in both flexion and extension. There was no evidence of ankylosis or joint instability. The examiner also conducted an x-ray of the Veteran's left tibia and fibula. Results revealed no evidence of a fracture, no lytic, blastic, or erosive boney changes. There were also no significant arthritic changes. While were vascular calcifications, everything else was within normal limits. In conclusion, the examiner found that the Veteran's left leg symptoms were less likely than not related to his military service. Aside from the reported lower leg pain and bilateral meniscal tear, the examiner could find no reports or complaints of persistent leg pain relating to the fracture in service. Overall, the Board finds that the most probative evidence is against the claim for service connection for a left leg disability. There is no evidence that the left leg pain arose prior to 2010 (at the time of the meniscal tear), or that it is related to his military service. Because the preponderance of the evidence is against the claims, the benefit of the doubt doctrine does not apply, and the claims for service connection for left leg condition must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990) c. Left Ankle Disability The Veteran's Service Treatment Record dated October 1991 showed that the Veteran complained of pain in his left ankle after physical activity. However, there was no diagnosis or record of treatment other than a complaint of pain. In his April 1992 examination, he did not report continued issues with his left ankle. He suffered a fracture to his distal fibular in June 1992 while in service. However, it is unclear whether the fracture occurred on the left or right foot. The Veteran was diagnosed with left foot plantar fasciitis and peroneal brevis tendonitis in September 2016 by a podiatrist after complaints of left heel pain. The November 2016 VA examiner found that the Veteran suffered from tendonitis of the left ankle. Upon examination, the left ankle showed abnormal range of motion, with dorsiflexion of 0 to 20 degrees and a plantar flexion of 0 to 45 degrees. There was no pain on passive range of motion for pain on weight bearing. The Veteran however demonstrated localized tenderness or pain on palpation of the joint or associated soft tissue. He also reported subjective mild pain on the bilateral joint line of the left ankle. Upon a muscle strength test, the Veteran's left ankle showed normal strength in both plantar flexion and dorsiflexion. There is, however, evidence of left ankle instability. A November 2016 x-rays of the tibia, fibula, and ankle joint showed normal results. Another x-ray of the left foot also showed normal results. The VA examiner found not clinical residuals from the 1992 distal fibular fracture. In sum, the November 2016 examiner opined that the Veteran's left ankle diagnosis is less likely incurred in or caused by the Veteran's military service. In his rationale, the VA examiner explained that while the Veteran had a fibular fracture, his recent x-rays do not show any clinical residue that would affect his ankle now. The fracture that occurred in service had resolved years prior and is unrelated to his current diagnosis of left foot planar fasciitis and left peroneal brevis tendonitis. Since service, the examiner could not find continuous complaints of persistent ankle issues since 1992. The Board finds that the probative evidence of record does not support a grant of service connection for the Veteran's left ankle condition. Even with reports of ankle pain during service, the Board finds no evidence of continuity of symptomatology after service. The evidence suggests that the reported fractured fibular was resolved in service. Consideration has been given to the Veteran's lay assertion that he currently has a left ankle disability as a result of his service. However, there is no indication that the Veteran is competent to render an opinion as to the medical causation. Thus, the Board finds that the preponderance of the competent and credible evidence of record is against an etiological relationship between the left ankle condition and his military service. d. Rectal Fissures The Veteran's Service Treatment Record dated September 1989 noted a small posterior rectal fissure. Since then, there has been no further notation or complaint relating to the condition in his treatment records. In his November 2016 VA examination, the Veteran told the examiner that he no longer has a rectal fissure, since it has long healed. Thus, an examination was not conducted. The Veteran stated to the examiner that a physical examination of his rectal area was not necessary since he no longer has symptoms or a diagnosis of a rectal fissure. Congress specifically limited entitlement to service connection for a disease or injury to cases where the disease or injury has resulted in a disability. In the absence of a proof of present disability there can be no claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Veteran's VA treatment records show no report or treatment of this condition since his separation of service. While the Veteran is claiming service connection for rectal fissures, the Board finds that the evidence of record does not show that he suffered from this condition during the period of this appeal. Thus, service connection for rectal fissures cannot be established if there is no current diagnosis and the claim must be denied. See Brammer, 3 Vet. App. at 225. ORDER Entitlement to service connection for headaches is denied. Entitlement to service connection for leg left disability is denied. Entitlement to service connection for left ankle disability is denied. Entitlement to service connection for rectal fissure is denied. ______________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs