Citation Nr: 1802236 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-20 122A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for degenerative joint disease of the right knee (right knee disability). 2. Entitlement to service connection for residuals, right bunionectomy and arthroplasties with hallux valgus, right foot (right foot disability). 3. Entitlement to an evaluation in excess of 20 percent for right lumbar radiculopathy. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Rescan, Associate Cousel INTRODUCTION The Veteran served on active duty in the United States Navy from May 1977 to June 1979. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In August 2017, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record. The issue of an increased rating for right lumbar radiculopathy is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran does not have a right knee disability that is related to his military service. 2. The Veteran does not have a right foot disability that is related to his military service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disability are not met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309 (2017). 2. The criteria for service connection for a right foot disability are not met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Under 38 U.S.C. § 5102 VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. Second, under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits. The appellant must also be notified of what specific evidence he is to provide and what evidence VA will attempt to obtain. Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations. 38 U.S.C. § 5103A. In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. See 38 U.S.C. § 5103(a). In this appeal, the Board finds the letter dated in March 2011 before the May 2013 rating decision, provided the Veteran with notice that fulfills the provisions of 38 U.S.C.A. § 5103(a) including notice of the laws and regulations governing disability ratings and effective dates as required by the Court in Dingess. The Board also finds that even if VA had an obligation to provide the Veteran with additional 38 U.S.C.A. § 5103(a) notice and failed to do so this notice problem does not constitute prejudicial error in this case because the record reflects that a reasonable person could be expected to understand what was needed to substantiate the claims after reading the above letter, the rating decision, and the statement of the. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009). As to the duty to assist, the Board finds that VA has secured all available and identified pertinent post-service evidence to include his private treatment records, VA treatment records and Social Security Administration (SSA) records. Moreover, VA provided the Veteran with a VA examination in May 2013 and the Board finds that the May 2013 examination is adequate to adjudicate the claims because it was provided after a review of the record on appeal, it referred to a detailed medical history from the claimant, and, after the Veteran was examined, the examiner provided an opinion as to nature and etiology of his current disabilities. Therefore, the record is now sufficient to decide the claim. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet App 303 (2007). Furthermore, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfills two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the August 2017 Board hearing, the Veteran was assisted at the hearing by his representative. The representative and the VLJ asked questions to ascertain the extent of any in-service event or injury and whether the Veteran's current disability is related to his service. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative that was not obtained while the appeal was in remand status. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for service connection. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c) (2). Lastly, neither the Veteran nor his representative has argued that any prejudice results from the assistance provided for this appeal. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015), cert. denied, (U.S. Oct. 3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board ... to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). VA's duty to assist with respect to obtaining relevant records and an examination has been met. 38 C.F.R. § 3.159(c); Barr, supra. In summary, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A or 38 C.F.R. § 3.159. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the appeal. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). In adjudicating the claim below, the Board has reviewed all of the evidence in the VBMS and virtual VA claims files. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all 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 Veteran's claim's folders show, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). II. The Claims The Veteran contends that his right knee and right foot disabilities are due to his military service. In order to establish service connection for the claimed disability, there must be (1) medical 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) medical 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 requirement of a current disability 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." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). 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 the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including arthritis and diseases of the nervous system, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Although lay persons are competent to provide opinions on some medical issues, some medical issues fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale and a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau, supra. Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In order to deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). A. Right Knee Disability. As to a current diagnosis, the Veteran has been diagnosed with degenerative joint disease of the right knee. See May 2013 VA Examination. Turning to Veteran's lay statements, the Veteran testified that he was involved in a car accident while he was on active duty and he attributed his current knee injury to that accident. Moreover, the Veteran reported that he had problems with his knee in service and those problems have continued to this day. Lastly, the Veteran also admitted that he did not seek treatment for his knee while in service. See August 2017 Hearing Transcript. Moving on to the medical evidence at hand, the Board has examined the Veteran's service treatment records and those records are silent for any issues or complaints related to the Veteran's right knee while he was in the military. The service treatment records do show that the Veteran was involved in a car accident but he did not report any issues with his knee following the car accident and no treating physician who examined the Veteran indicated that the Veteran suffered a right knee injury in the car accident. See Service Treatment Records April 21, 1978, July 5, 1978, July 7, 1978, and July 10, 1978. The Board finds that the Veteran is considered competent to report on observable problems, such as pain because this symptom is observable by a lay person. See Kahana, supra. However, the Board also finds that the Veteran is not competent to provide a medical opinion as to the origins of his present disability because such an opinion requires medical expertise which they do not have. As such, the Board places little probative weight on the Veteran's statements because he does not have the medical expertise to provide a diagnosis for his claimed disability. See Davidson, supra; Kahana, supra. Moreover, the Veteran was afforded a VA examination in May 2013. At that examination, the Veteran reported that he hit his knee on the steering wheel and when he awakened in the hospital he had a wrap and ice on the knee. The Veteran also reported that his knee would give out on him, he wears a knee brace, and the pain comes and goes. See May 2013 VA examination. Following the examination, the examiner opined that it is less as likely as not that the Veteran's current condition of degenerative joint disease of the right knee is secondary to the motor vehicle accident of 1978. The examiner added that the "Veteran's service treatment records failed to show a right knee condition in service and a "Social Security Disability examination in 1990 showed that the Veteran reported a three month history of pain in both knees due to construction work." The examiner finished their opinion by stating that "the Veteran was eventually diagnosed with degenerative joint disease in 2007 at which time an X-ray documented only possible early arthritis in the right knee." Lastly, the doctor opined that "it is less likely for a knee injury in 1978 to show only minimal changes on an X-ray in 2007. The Veteran's knee condition is more likely due to natural progression." See May 2013 VA examination. The opinion provided by this examiner is not contradicted by any other medical evidence of record. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). The Board finds this VA examination to be a highly probative piece of evidence in regards to the nature and etiology of the Veteran's claimed disability. The Board has reached this conclusion because the examiner reviewed the Veteran's medical history, interviewed the Veteran, and examined him before he rendered an opinion. Accordingly, the Board has placed significant weight on this evaluation. Davidson, supra. In sum, the Board finds that the preponderance of the evidence shows that the Veteran does not have a right knee disability related to service. In reaching this conclusion, the Board has considered the Veteran's lay statements, the Veteran's medical history, and the medical opinion regarding the nature and etiology of his right knee disability. After a review of the record, the Board finds that the May 2013 VA examination is the most probative evidence of record regarding the Veteran's disability. Accordingly, the Board finds that entitlement to service connection for a right knee disability is not warranted because the weight of the probative evidence is against a finding that the Veteran has a right knee disability related to service. For the above stated reasons, the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim for entitlement to service connection for connection for degenerative joint disease of the right knee, must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. B. Right Foot Disability As to a current diagnosis, the Veteran was diagnosed with mild hallux valgus and residuals of a right bunionectomy and arthroplasties of the right second and fifth toes. See July 7, 2010 VA Progress Note and May 2013 VA Examination. Turning to Veteran's lay statements, the Veteran testified that he was involved in a car accident while he was on active duty and he stated that he felt soreness on the right side of his right foot following the accident. Moreover, the Veteran also stated that the boots in service bothered his feet and he reported that to his senior chief in boot camp but never saw a doctor to ensure that he graduated from basic training. Lastly, the Veteran attributed his right foot disability to the injury he suffered when he was involved in the car accident. See August 2017 Hearing Transcript. Moving on to the medical evidence at hand, the Board has examined the Veteran's service treatment records and those records are silent for any issues or complaints related to the Veteran's right foot while he was in the military. The service treatment records do show that the Veteran was involved in a car accident but he did not report any issues with his foot following the car accident and no treating physician who examined the Veteran indicated that the Veteran suffered a right foot injury in the car accident. See Service Treatment Records April 21, 1978, July 5, 1978, July 7, 1978, and July 10, 1978. The Board finds that the Veteran is considered competent to report on observable problems, such as pain because this symptom is observable by a lay person. See Kahana, supra. However, the Board also finds that the Veteran is not competent to provide a medical opinion as to the origins of his present disability because such an opinion requires medical expertise which they do not have. As such, the Board places little probative weight on the Veteran's statements because he does not have the medical expertise to provide a diagnosis for his claimed disability. See Davidson, supra; Kahana, supra. Moreover, the Veteran had a VA examination in May 2013. At that examination, the Veteran reported that he was wearing an orthopedic shoe for two weeks for swelling his foot after the accident. The Veteran also stated that he had residual pain in the front of his foot but he did not get it treated. The Veteran added that he was seen at an out-patient clinic in Fort Myers and he was offered an operation on the foot in 1979-1980 but he refused at the time. Lastly, the Veteran stated that he had surgery to the fracture site at the Tampa VA in 1997 and he still has occasional pain. See May 2013 VA examination. Following the examination, the examiner opined that "it is less likely as not that the Veteran's current right foot condition is secondary to the motor vehicle accident in 1978." The examiner stated that the Veteran's service treatment records are "silent for a foot condition" and the Veteran's VA records "do not document a right big toe fx or injury." The doctor added that "per medical literature, many theories have been proposed but the precise etiology of hallux valgus deformity is unknown." The doctor went on to state that "most likely hallux valgus deformity is multifactorial in origin and includes such factors as abnormal foot mechanics affecting the first ray, abnormal first metatarsophalangeal anatomy, joint hypermobility, and genetic influences." The doctor continued by stating that "hallux valgus is also associated with conditions such as inflammatory joint disease. The Veteran has a similar deformity of the left big toe and hence inflammatory or degenerative joint disease is the likely etiology." See May 2013 VA examination. The opinion provided by this examiner is not contradicted by any other medical evidence of record. See Colvin v. Derwinski, supra. (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). The Board finds this VA examination to be a highly probative piece of evidence in regards to the nature and etiology of the Veteran's claimed disability. The Board has reached this conclusion because the examiner reviewed the Veteran's medical history, interviewed the Veteran, cited to the available medical literature, and examined him before he rendered an opinion. Accordingly, the Board has placed significant weight on this evaluation. Davidson, supra. In sum, the Board finds that the preponderance of the evidence shows that the Veteran does not have a right foot disability related to service. In reaching this conclusion, the Board has considered the Veteran's lay statements, the Veteran's medical history, and the medical opinion regarding the nature and etiology of his right foot disability. After a review of the record, the Board finds that the May 2013 VA examination is the most probative evidence of record regarding the Veteran's disability. Accordingly, the Board finds that entitlement to service connection for a right foot disability is not warranted because the weight of the probative evidence is against finding that the Veteran has a right foot disability related to service. For the above stated reasons, the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim for entitlement to service connection for connection for residuals, right bunionectomy and arthroplasties with hallux valgus of the right foot, must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for degenerative joint disease of the right knee, is denied. Entitlement to service connection for residuals, right bunionectomy and arthroplasties with hallux valgus, right foot, is denied. REMAND Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. As to the Veteran's claim for right lumbar radiculopathy, the record reflects that the Veteran attended a VA examination in February 2016 to determine the severity of this disability. Following the examination, the RO did not prepare a supplemental statement of the case that considered this newly received evidence. Accordingly, when the AOJ receives pertinent evidence relevant to a claim properly before it that is not duplicative of evidence already discussed in the statement of the case (SOC) or a supplemental statement of the case (SSOC), it must prepare an SSOC addressing that evidence. 38 C.F.R. § 19.31 (2017). In this case, the Veteran was not informed of the material changes in his case and was not afforded the opportunity to respond or submit new evidence before his case was before the Board. Thus, a remand is necessary to afford the Veteran every possible consideration. While the appeal is in remand status, the AOJ should also obtain and associate with the record any outstanding VA treatment records. See 38 U.S.C. § 5103A(d) (2012). Accordingly, the case is REMANDED for the following action: 1. Associate with the claims file the Veteran's contemporaneous VA treatment records from February 9, 2016, to the present. 2. The RO should take any additional steps as necessary in order to properly develop the claim. 3. Then readjudicate the Veteran's claim. If the benefit sought on appeal is not granted to the Veteran's satisfaction, a supplemental statement of the case should be issued to the Veteran and his representative and they should be afforded the requisite opportunity to respond before the case is returned to the Board for further appellate action 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 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. §§ 5109B, 7112 (2012). ______________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs