Citation Nr: 18154775 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 16-58 091 DATE: November 30, 2018 ORDER Entitlement to service connection for a right front upper thigh injury is denied. Entitlement to service connection for a left front leg injury is denied. Whether a timely notice of disagreement was received in response to the July 21, 2014 denial of service connection for a psychiatric disability is granted. REMANDED Entitlement to service connection for a psychiatric disability, claimed as posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. A current disability of the right leg was not incurred in service, did not manifest to a compensable degree within a year of service separation, and has not been chronic or continuous since service. 2. A current disability of the left leg was not incurred in service, did not manifest to a compensable degree within a year of service separation, and has not been chronic or continuous since service. 3. A timely notice of disagreement was received in September 2014 following a July 2014 rating decision which denied service connection for a psychiatric disability, claimed as posttraumatic stress disorder (PTSD). CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right leg disability have not been met. 38 U.S.C. §§ 1110, 1112, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. 2. The criteria for entitlement to service connection for a left leg disability have not been met. 38 U.S.C. §§ 1110, 1112, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. 3. A timely notice of disagreement was received in response to the July 21, 2014 rating decision denying of service connection for a psychiatric disability. 38 U.S.C. §§ 5107, 7104, 7105; 38 C.F.R. §§ 20.200, 20.201, 20.302. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from January 1952 to January 1954. Service Connection 1. Entitlement to service connection for a right front upper thigh injury 2. Entitlement to service connection for a left front leg injury The Veteran seeks service connection for disabilities of the bilateral legs. He has asserted he initially injured his legs due to a fall off a tank while in combat in Korea, and service connection is therefore warranted for these disabilities. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Pursuant to 38 U.S.C. § 1154(b), with respect to combat veterans, “[VA] shall accept as sufficient proof of service- connection . . . satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions and hardships of such service . . . Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary.” See also 38 C.F.R. § 3.304(d). 38 U.S.C. § 1154(b), however, can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to the current disorder. See Libertine v. Brown, 9 Vet. App. 521, 522- 23 (1996). 38 U.S.C. § 1154(b) does not establish service connection for a combat veteran; it aids him or her by relaxing the adjudicative evidentiary requirements for determining what happened in service. See Wade v. West, 11 Vet. App. 302, 305 (1998) (holding that “a combat veteran who has successfully established the in-service occurrence or aggravation of an injury pursuant to § 1154(b), must still submit sufficient evidence of a causal nexus between that in-service event and his or her current disability”). A veteran (or in this case, the appellant) must still generally establish the claim by competent medical evidence tending to show a current disability and a nexus between that disability and those service events. See Gregory v. Brown, 8 Vet. App. 563, 567 (1996). Considering first the service treatment records, the Veteran was without any noted abnormalities of either lower extremity on examination for service entrance in November 1951, and he was found fit for acceptance into service at that time. In October 1953, the Veteran was hospitalized for painful legs. On admission, he was noted to be ambulatory. He reported pain across both posterior tibial areas, especially following physical exertion and when cold. On physical examination, he had some tibial shaft tenderness in the mid leg region bilaterally. Shin splints were suspected. X-rays of the legs were negative. According to the service treatment records, no disease was found at that time, and the Veteran was much improved with rest. “Strain, peroneal muscles, both legs” was written as the final diagnosis, but appears to have been crossed out. He was returned to duty. On examination for service separation in January 1954, the Veteran was without any noted abnormalities of either lower extremity. A history of an injury to the left leg in October 1953 was noted, but no current abnormality was found, according to the examination report. Based on these findings at service separation, the Board must conclude that while the Veteran was treated for bilateral leg pain in service, the absence of similar complaints at service separation suggests any such injuries were acute and transitory in nature, and did not result in chronic or continuous disability. Thereafter, the Veteran was not treated for or diagnosed with a disability of either leg until approximately 2015 for the left knee, when he was seen for an arthroscopy and meniscal resection surgery, and 2014 for the right knee, when osteoarthritis was diagnosed. This gap between the claimed in-service injuries and current diagnoses represents a period of over 50 years. This lengthy period without complaint or treatment is one piece of evidence that there has not been ongoing symptomatology, and weighs heavily against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Thus, service connection on a direct basis is not warranted, as such a disability was not incurred in service, did not manifest to a compensable degree within a year thereafter, and has not been chronic and continuous since service separation. The Veteran was afforded an October 2016 VA medical examination. His claims file was reviewed in conjunction with the examination. The examiner, a VA physician, noted the Veteran’s in-service treatment for painful legs. The examiner opined, however, that any current disabilities of the bilateral legs were less likely than not related to any in-service disease or injury, as in-service x-rays were negative for any bony abnormalities or other clinical findings, and the remainder of the service treatment records did not contain evidence to suggest continuity or chronicity of the Veteran’s symptoms. The examiner also noted the absence of post-service treatment of either leg for many years after service. As such, the examiner concluded the Veteran’s in-service leg disabilities were acute and transitory in nature, and were fully-resolved after a few days’ rest, per the service treatment records. Any current disabilities of the legs likely had their onset many years after service and were unrelated to any in-service disease or injury, according to the VA examiner. In support of his claim, the Veteran submitted an August 2018 statement from F.G., a private physician and orthopedic surgeon. Dr. G. reviewed the claims file, but does not appear to have personally examined the Veteran. After reviewing the record, Dr. G. opined that there was “more likely than not a direct causal relationship to an injury occurring in military service with the right leg injury above and below the right knee followed by development of tricompartmental degenerative joint disease of the right knee.” Dr. G. did not discuss the Veteran’s left leg. “It is the responsibility of the BVA . . . to assess the credibility and weight to be given to evidence.” Hayes v. Brown, 5 Vet. App. 60, 69 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). With regard to the weight to assign to these medical opinions, the Court has held that “[t]he probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches . . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [BVA as] adjudicators.” Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). In the present case, the Board finds the October 2016 VA medical opinion to carry greater probative weight. The VA examiner both personally examined the Veteran and reviewed the claims file, whereas the private physician, Dr. G., only reviewed the claims file. Furthermore, Dr. G. only provided a medical opinion regarding the right leg, but did not mention the left leg. Dr. G. also failed to provide any form of rationale for the opinion and specifically, Dr. G. also failed to address specific findings within the record which contradicted his conclusion, such as the in-service bilateral x-rays which were within normal limits and the absence of any abnormalities of either leg at service separation. Dr. G. also did not address the 50-plus year gap between the reported in-service injuries and the Veteran’s current diagnoses of the bilateral legs. As such, the Board affords little probative weight to the August 2018 private medical opinion. By contrast, the October 2016 VA medical opinion cited to specific findings within the record in support of the examiner’s conclusion, and is thus found to be more probative by the Board. Based on this competent evidence, the Board finds the preponderance of the evidence to be against the award of service connection on any basis for disabilities of either lower extremity. The Veteran himself asserts his bilateral leg disabilities are due to service. As a layperson, however, the Veteran is not capable of making medical conclusions; thus, his statements regarding causation are not competent evidence. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay statements may be competent 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. Id; see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, orthopedic disorders are complex disorders which require specialized training for a determination as to diagnosis and causation, and they are therefore not susceptible of lay opinions on etiology, and the Veteran’s statements therein cannot be accepted as competent medical evidence. The Veteran is also not reporting an expert opinion as told to him, and his lay contentions have not later been confirmed by a competent expert. The Board acknowledges that the Veteran was awarded the Combat Infantryman’s Badge, and thus 38 U.S.C. § 1154 applies. Nevertheless, while this law aids him in establishing an in-service injury, it does not establish a nexus between any in-service disease or injury and the claimed current disability. See Libertine, 9 Vet. App. at 522- 23. In the present case, service connection must be denied based on the absence of a nexus between the in-service injuries and any current disabilities. In conclusion, the preponderance of the evidence is against the claim of service connection for disabilities of the bilateral legs, as such disabilities were not incurred in service, did not manifest to a compensable degree within a year of service, and have not been chronic since service separation. As a preponderance of the evidence is against the award of service connection for either lower extremity, the benefit of the doubt doctrine is not applicable in the instant appeal. 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). 3. Whether a timely notice of disagreement was received in response to the July 21, 2014 denial of service connection for a psychiatric disability As an initial matter, the Board notes that the regulations pertaining to Standard Claims and Appeals Forms were amended during the pendency of this appeal. However, as those amendments are effective March 24, 2015, and this claim was pending prior to that date, the Board will give consideration to the regulations in effect prior to March 24, 2015. The Veteran appeals the RO’s September 2016 finding that a timely notice of disagreement was not received regarding the denial of service connection for a psychiatric disability, claimed as posttraumatic stress disorder (PTSD), in a July 21, 2014 rating decision. Rating decisions from which an appeal is not perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. An appeal consists of a timely filed notice of disagreement in writing, and after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. A written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the AOJ and a desire to contest the result will constitute a notice of disagreement. While special wording is not required, the notice of disagreement must be in terms which can be reasonably construed as disagreement with that determination and a desire for appellate review. If the agency of original jurisdiction (AOJ) gave notice that adjudicative determinations were made on several issues at the same time, the specific determinations with which the claimant disagrees must be identified. 38 C.F.R. § 20.201. The notice of disagreement must be filed with the VA office that entered the determination with which disagreement has been expressed. 38 U.S.C. § 7105(b)(1); 38 C.F.R. § 20.300. A notice of disagreement may be filed by a claimant personally, or by his or her representative if a proper Power of Attorney or declaration of representation, as applicable, is on record or accompanies such notice of disagreement. 38 C.F.R. § 20.301(a). If an appeal is not filed by a claimant personally, or by his or her representative, and the claimant is rated incompetent by VA or has a physical, mental, or legal disability which prevents the filing of an appeal on his or her own behalf, a notice of disagreement and a substantive appeal may be filed by a fiduciary appointed to manage the claimant’s affairs by VA or a court, or by a person acting as next friend if the appointed fiduciary fails to take needed action or no fiduciary has been appointed. 38 C.F.R. § 20.301(b). To be considered timely, a NOD with a determination by the AOJ must be filed within one year from the date that the agency mails notice of the determination to him or her. Otherwise, that determination will become final. The date of mailing the letter of notification of the determination will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed. 38 C.F.R. § 20.302(a). A response postmarked prior to expiration of the applicable time limit will be accepted as having been timely filed. If the postmark is not of record, the postmark date will be presumed to be five days prior to the day of receipt of the document by VA. In calculating this 5-day period, Saturdays, Sundays and legal holidays will be excluded. In computing the time limit for filing a written document, the first day of the specified period will be excluded and the last day included. Where the time limit would expire on a Saturday, Sunday or legal holiday, the next succeeding workday will be included in the computation. 38 C.F.R. § 20.305(a), (b). The filing of additional evidence after receipt of notice of an adverse determination does not extend the time limit for initiating an appeal from that determination. 38 C.F.R. § 20.304. In the present case, two documents were received by the RO on September 23, 2014, according to the date stamp. The first was a VA Form 21-22a, Appointment of Individual as Claimant’s Representative. This form was received from P.G., J.D., and was signed by both the Veteran and P.G. The second was a letter, also from P.G., indicating the Veteran wished to appeal the July 2014 denial of service connection for a psychiatric disability. In its September 2016 letter, the RO stated the initial September 2014 notice of disagreement letter received from P.G. was not accompanied by a valid VA Form 21-22a, and therefore the September 2014 notice of disagreement could not be accepted, as it was not from the Veteran himself or an authorized representative. Review of the record indicates, however, that this finding by the RO was incorrect, as a valid VA Form 21-22a was received on the same date as the initial September 2014. As such, the Board finds the September 2014 notice of disagreement was indeed timely. To that extent only, the appeal is granted. REASONS FOR REMAND Entitlement to service connection for a psychiatric disability, claimed as PTSD, is remanded. The Board, having determined that the Veteran filed a timely notice of disagreement in response to the July 2014 denial of service connection for a psychiatric disability, concludes that issue is within the Board’s jurisdiction. The RO has, however, yet to issue the Veteran a statement of the case regarding this issue. Under these circumstances, the Board is obliged to remand this issue to the RO for the issuance of a statement of the case. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The matters are REMANDED for the following action: 1. Issue the Veteran a statement of the case on the issue of entitlement to service connection for a psychiatric disability. He must also be provided notice of the need to file a timely VA Form 9 in order to perfect his appeal of this issue. Only if this issue is perfected for appellate review should it then be returned to the Board. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel