Citation Nr: 1752324 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 14-02 097 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a left lower extremity disability (excluding the service-connected left knee residuals of partial ACL tear with arthropathy). 2. Entitlement to service connection for a left foot condition (excluding the service-connected plantar fasciitis). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD R.M.K., Counsel INTRODUCTION The Veteran had active duty service from August 2004 to December 2005 and from April 2007 to July 2011. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in in Seattle, Washington. The Board notes that the Veteran's claims were processed under the Disability Evaluation Systems (DES) Pilot Program, a joint initiative between the Department of Defense and VA. The Veteran testified at a September 2015 Board hearing before the undersigned Veterans Law Judge (VLJ) in Waco, Texas. A transcript of the hearing is of record. When this case was previously before the Board in January 2016, it was remanded for additional evidentiary development. It has since returned to the Board for further appellate action. In January 2016 the issues of entitlement to service connection for a bilateral shoulder disability and entitlement to service connection for a bilateral upper extremity disability characterized by numbness and tingling, to include carpal tunnel syndrome, were also before the Board. In a subsequent August 2016 decision, service connection for left shoulder strain, right shoulder strain, left carpal tunnel, and right carpal tunnel were granted. Therefore, these issues of entitlement to service connection are not before the Board because the benefits sought (service connection) were granted in full during the pendency of the appeal. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. These systems were reviewed to ensure thorough analysis of the evidence of record. FINDINGS OF FACT 1. A left lower extremity disability, diagnosed as iliotibial band syndrome (ITBS) and mild degenerative joint disease (DJD), is etiologically related to service. 2. The Veteran does not currently have a left foot condition, other than the service-connected plantar fasciitis. CONCLUSIONS OF LAW 1. The criteria for service connection for a left lower extremity disability have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. § 3.303 (2017). 2. The criteria for service connection for a left foot condition, other than the service-connected plantar fasciitis, have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA) in a September 2010 letter. 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), 4.2 (2017). Concerning the duty to assist, the record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including his service treatment records, post-service treatment records, and VA examination reports. The Veteran was provided a hearing as outlined above. As there is no allegation that the hearing provided to the Veteran was deficient in any way, further discussion of the adequacy of the hearing is not necessary. Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). As noted above, this case was remanded in January 2016 in pertinent part to afford the Veteran VA examinations and obtain outstanding VA treatment records and his vocational rehabilitation file. In response to the remand, the Veteran was afforded VA examinations in June 2016, additional VA treatment records were added to VBMS, and efforts to obtain the vocational rehabilitation file were made but were unsuccessful; the Veteran was informed as to this fact in May 2016. The Board finds that there has been substantial compliance with its Remand directives and the matter is now properly before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Legal Criteria and Analysis Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2017). In order to establish service connection for the claimed disorder, there must be (1) competent evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Some chronic diseases, including arthritis, may be presumed to have been incurred in service if they become manifest to a degree of ten percent or more within one year of the date of separation from service. 38 U.S.C.A. § 1101 (3), 1112(a); 38 C.F.R. § 3.307 (a), 3.309(a). Left Lower Extremity In this case, the VA examination in June 2016 showed left leg ITBS and mild DJD. Therefore, Hickson element (1) is met. With respect to Hickson element (2), in-service disease or injury, the Veteran testified before the undersigned that his leg was injured when an engine was lowered onto his legs while in service and that he reinjured his leg in 2009. The engine incident was referenced in the Veteran's service treatment records, to include in the May 2011 DA Form 199, which noted a "palletized engine was inadvertently lowered onto soldier's bent knee in Iraq in 2007." Accordingly, Hickson element (2) is at least arguably met. The June 2016 VA examiner stated that the Veteran did not have a current diagnosis of any ligament or meniscus injury (e.g. no ACL or MCL tear) as the most recent knee MRIs were normal; however, there was mild DJD on the most recent plain X-rays. Additionally, the ITBS was demonstrated on examination. In pertinent part, the examiner was asked in the January 2016 remand "does the Veteran have a diagnosis of (a) Left Lower Extremity Disability (excluding a previously service-connected left knee disability; left knee residuals of partial ACL tear with arthropathy) ..., to include Left Leg Peroneus Brevis Strain that is at least as likely as not (50 percent or greater probability) incurred in or caused by (the) during service?" The examiner opined that the condition claimed was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated "yes, the left knee condition as well as right knee condition are well documented in [the service treatment records]...however, current diagnoses are not as above but rather as per the knee [examination] diagnoses done today." The Board finds that the June 2016 VA examiner provided a positive etiological opinion, connecting left leg ITBS and mild DJD to service. Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole, and the Board is permitted to draw inferences based on the overall report so long as the inference does not result in a medical determination). Thus, the Board finds that the Veteran has met all three elements of entitlement for service connection for a left lower extremity disability, diagnosed as ITBS and mild DJD, and service connection is warranted for that additional disability. Left Foot As to the claim for a left foot condition, other than the service-connected plantar fasciitis, the Board finds that the claim fails as Hickson element (1) is not met. Given the medical evidence of record, to include the June 2016 VA examination, the Board finds that the Veteran does not have a left foot condition, other than the service-connected plantar fasciitis. To this point, the Veteran was afforded a VA examination in June 2016 in which plantar fasciitis was noted but another left foot condition was not diagnosed. The examiner stated that there was no sequelae and/or current condition and/or diagnosis from a possible fracture and/or injury given by a history of occurring in the left foot during service. The Board acknowledges that the Veteran is competent to testify as to his beliefs that he has a left foot condition, other than the service-connected plantar fasciitis, that is related to service. However, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical diagnosis or opinion regarding etiology. See 38 C.F.R. § 3.159 (a)(1) (2017) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the Veteran is competent to report what he has experienced, he is not competent to ascertain the diagnosis or etiology of any current condition, as such are not readily subject to lay observation. Therefore, the Veteran's claims are outweighed by the competent and probative medical opinion. Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). The Board also notes that the record does not contain any evidence of a left foot condition, other than the service-connected plantar fasciitis, at any point during the appeal. As such, the Veteran does not have a current disability under the law, and as a result, service connection for a left foot condition, other than the service-connected plantar fasciitis, cannot be granted. In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Further, as there is no current a left foot condition, other than the service-connected plantar fasciitis, service connection on a presumptive basis or based on continuity of symptomatology is also not warranted. See 38 C.F.R. §§ 3.307, 3.309. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim for a left foot condition, other than the service-connected plantar fasciitis. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b) (West 2014). ORDER Service connection for a left lower extremity disability, diagnosed as ITBS and mild DJD, is granted. Service connection for a left foot condition, other than the service-connected plantar fasciitis, is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs