Citation Nr: 0735732 Decision Date: 11/13/07 Archive Date: 11/26/07 DOCKET NO. 04-28 558 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for a right ankle disability. 2. Entitlement to service connection for a low back disability. 3. Entitlement to service connection for a left ankle disability. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Connolly Jevtich, Counsel INTRODUCTION The veteran served on active duty from June 1975 to May 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. In August 2005 the appellant testified at a personal hearing before a Veterans Law Judge. Since this Veterans Law Judge left employment with the Board, the veteran was offered an additional hearing, but he did not indicate that another hearing was sought. The issue of service connection for a left ankle disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The record does not reflect that the veteran has a current right ankle disability. 2. A low back disability to include degenerative disc disease is not attributable to service. CONCLUSIONS OF LAW 1. A right ankle disability was not incurred or aggravated in active service. 38 U.S.C.A. §§ 1101, 1131 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.303, 3.304 (2007). 2. A low back disability was not incurred or aggravated in active service. 38 U.S.C.A. §§ 1101, 1131 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.303, 3.304 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) With respect to the claimant's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Prior to the initial adjudication of the claimant's claim, a letter dated in June 2003 sent to the veteran. Thereafter, an additional VCAA letter was sent in August 2006. The VCAA letters satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The claimant was aware that it was ultimately the claimant's responsibility to give VA any evidence pertaining to the claim. The VCAA letters told the claimant to provide any relevant evidence in the claimant's possession. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). ). In particular, the VCAA notification: (1) informed the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) informed the claimant about the information and evidence that VA will seek to provide; (3) informed the claimant about the information and evidence that the claimant is expected to provide; and (4) requested that the claimant provide any evidence in his possession that pertains to the claims, or something to the effect that the claimant should "give us everything you've got pertaining to your claim." See Pelegrini II. The United States Court of Appeals for the Federal Circuit (Federal Circuit) recently held that a statement of the case (SOC) or supplemental statement of the case (SSOC) can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC. See Mayfield v. Nicholson, No. 2007-7130 WL 2694606 (Fed. Cir. Sept 17, 2007) (Mayfield III). As a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. See Mayfield III, (citing Mayfield v. Nicholson, 444 F.3d at 1328, 1333-34). In any event, the Board finds that any deficiency in the notice to the claimant or the timing of these notices is harmless error. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that the Board erred by relying on various post-decisional documents to conclude that adequate 38 U.S.C.A. § 5103(a) notice had been provided to the claimant, the United States Court of Appeals for Veterans Claims (Court) found that the evidence established that the claimant was afforded a meaningful opportunity to participate in the adjudication of the claim, and found that the error was harmless, as the Board has done in this case.) If any notice deficiency is present, the Board finds that the presumption of prejudice on VA's part has been rebutted in this case by the following: (1) based on the communications sent to the veteran over the course of this appeal, the claimant clearly has actual knowledge of the evidence he is required to submit in this case; and (2) based on the claimant's contentions as well as the communications provided to the claimant by VA, it is reasonable to expect that the claimant understands what is needed to prevail. See also Simmons v. Nicholson, 487 F. 3d 892 (2007); see also Sanders v. Nicholson, 487 F. 3d 881 (2007). VA also fulfilled its duty to obtain all relevant evidence with respect to the issues on appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The claimant's service medical records, VA medical treatment records, Social Security Administration (SSA) records, and identified private medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. The claimant was also afforded VA examinations in October 2003. 38 C.F.R. § 3.159(c)(4). The records satisfy 38 C.F.R. § 3.326. The veteran was also sent notification regarding the appropriate disability rating or effective date to be assigned in March 2007. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. §§ 3.303, 3.304. Further, VA regulation provides that, with chronic disease shown as such in service (or within an applicable presumptive period under section 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of an evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). In addition, 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). A claim for service connection generally requires competent evidence of a current disability; proof as to incurrence or aggravation of a disease or injury in service, as provided by either lay or medical evidence, as the situation dictates; and competent evidence as to a nexus between the inservice injury or disease and the current disability. Cohen v. Brown, 10 Vet. App. 128, 137 (1997); Layno v. Brown, 6 Vet. App. 465 (1994). The Court has consistently held that, under the law cited above, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). This principle has been repeatedly reaffirmed by the Federal Circuit, which has stated, "a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability." Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Right Ankle The service medical records revealed that in November 1975, the veteran incurred a moderate sprain to his right ankle. Within a few days, the right ankle was noted to be much better with a reduction in edema and pain only on standing for long periods of time. X-rays revealed a soft tissue injury with no limitation of motion. The veteran was treated with pain medication, an ace wrap, and light duty. In April 1977, the veteran was afforded a separation examination. The veteran's feet and lower extremities were normal. In October 2003, the veteran was afforded a VA examination. At that time, the veteran reported that following service, his right ankle was weak from the inservice strain. A review of the claims file was conducted. In addition, physical examination was performed. The veteran's right ankle was found to be essentially normal. The diagnosis was that the veteran's inservice right ankle sprain was resolved without any residual disability. In August 2005, the veteran presented sworn testimony at a hearing before a Veterans Law Judge. He testified that he had experienced ankle pain ever since service. He also stated that he had previously filed a claim for service connection and that he had been treated for ankle pain at VA medical facilities ever since service and that VA has lost these records. However, a review of the record shows no prior claim. In addition, all relevant VA records have been obtained. There is no right ankle treatment or diagnosis contained in those records. The veteran can attest to factual matters of which he had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the veteran as a lay person has not been shown to be capable of making medical conclusions, thus, his statements regarding causation are not competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Thus, while the veteran is competent to report what comes to him through his senses, he does not have medical expertise. See Layno. Therefore, he cannot provide a competent opinion regarding diagnosis and causation. However, the Federal Circuit has held that lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. In Barr v. Nicholson, 21 Vet App 303 (2007), the Court indicated that varicose veins was a condition involving "veins that are unnaturally distended or abnormally swollen and tortuous." Such symptomatology, the Court concluded, was observable and identifiable by lay people. Because varicose veins "may be diagnosed by their unique and readily identifiable features, the presence of varicose veins was not a determination 'medical in nature' and was capable of lay observation." Thus, the veteran's lay testimony regarding varicose vein symptomatology in service represented competent evidence. In Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the Federal Circuit determined that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (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. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). See Barr. The issue does not involve a simple diagnosis. While the veteran is competent to report right ankle pain, he does not have the medical expertise to diagnose a current medical disability of the right ankle. Thus, the veteran's lay assertions alone are not competent or sufficient. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that the VA's and the Court's interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In this case, the veteran injured his right ankle during service; however, the record indicates that the injury resolved with treatment and without sequelae. At separation, the veteran's right ankle was normal. Currently, there is no right ankle disability. The VA examiner noted that the prior right ankle injury had resolved during service. In the absence of proof of a present disability, there can be no valid claim. Rabideau v. Derwinski, 2 Vet. App. 141, 143- 44 (1992). Accordingly, service connection for a right ankle disability is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The preponderance of the evidence is against the veteran's claim, and it must be denied. Low Back The service medical records reveal that in November 1975, the veteran suffered trauma to his low back. Physical examination revealed complaints of pain, right sided muscle spasm, tenderness, and poor range of motion of the low back. Disc herniation of the intervertebral disc at L3-4 was considered a possible diagnosis along with a simple sprain of the low back muscles. X-rays and follow-up examination was conducted with a final diagnosis of back strain made in November 1975. In April 1977, the veteran was afforded a separation examination which revealed a normal spine. Post-service, private hospitalization records dated August 1978 reveal that the veteran was admitted for emergency treatment following a motorcycle accident. These records reveal that the veteran sustained injuries to both legs and knees, abrasions to his hands, and had left deltoid complaints. Sciatic nerve injury to the left leg was also noted along with complaints of low back pain, especially on the left. August 1978 x-rays of the lumbar spine revealed irregularity on the superior anterior aspect of the 3rd lumbar vertebral bodies which was noted to possibly be a fracture of an accessory ossification. The veteran required hospitalization as well as follow-up treatment as a result of the injuries sustained in the accident. The veteran was subsequently transferred to VA for additional inpatient treatment. Private medical records dated in July 2000 reveal that the veteran sought emergency room treatment for severe low back pain and spasms. He reported having a history of back spasms for the past 20 years, which would date back to 1980. X-rays revealed loss of intervertebral disc space, and degenerative changes, at L5-S1. In October 2000, a myelogram confirmed that the veteran had degenerative disc disease at L5-S1. In October 2003, the veteran was afforded a VA examination. The claims file was reviewed and the inservice findings were noted. A physical examination and x-rays revealed degenerative disc disease at L5- S1 as well as slight scoliosis. The examiner's opinion was that current back disability was unrelated to the veteran's low back strain at L3-4 during service. At his August 2005 personal hearing, the testified that he had symptoms of back pain ever since service. As noted, although he claimed that he previously filed a claim of service connection, this is not supported in the record. Also, as noted, all pertinent medical records have been obtained. The veteran is competent to report back pain. However, he is not competent to present an opinion regarding a complex medical diagnosis regarding the back. See Jandreau. There is no competent medical evidence of any link between his current diagnosis and service. As noted, the veteran is not competent to make this causal link or to state the etiology of his currently diagnosed degenerative disc disease at L5- S1 as well as slight scoliosis. The competent medical evidence shows that current low back disability is not related to service. The Board attaches significant probative value to this opinion, as it is well reasoned, detailed, consistent with other evidence of record, and included review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion.). The VA examiner reviewed the claims file, addressed the pertinent inservice and post-service findings, examined the veteran, and then rendered an opinion. As such, this medical opinion is the most probative evidence of record. The Board may not base a decision on its own unsubstantiated medical conclusions but, rather, may reach a medical conclusion only on the basis of independent medical evidence in the record. Hensley v. Brown, 5 Vet. App. 155 (1993). Neither the Board nor the veteran is competent to supplement the record with unsubstantiated medical conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Conversely, health professionals are experts and are presumed to know the requirements applicable to their practice and to have taken them into account in providing a diagnosis. Cohen v. Brown, 10 Vet. App. 128 (1997). Thus, the most probative evidence of record establishes that current low back disability is not attributable to service. Accordingly, service connection is not warranted. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The preponderance is against the veteran's claim, and it must be denied. ORDER Service connection for a right ankle disability is denied. Service connection for a low back disability is denied. REMAND Left Ankle The service medical records that in August 1976, the veteran fell from a truck and had pain to the lateral side of the left ankle. There were no further comments regarding the left ankle. Rather, references were made to the right ankle and right foot. However, the veteran did initially report left ankle pain. In October 2003, the veteran was afforded a VA examination. Physical examination revealed degenerative changes as the residuals of a fracture of the left ankle. X-rays revealed abnormalities which were noted to be possibly secondary to old trauma. The examiner opined that the veteran's left ankle disorder was not secondary to the in-service right ankle sprain. The examiner did not reference the positive inservice finding regarding the left ankle or provide any opinion regarding current left ankle disability and the inservice left ankle complaints. The Board finds that the VA examiner should be contacted to provide an addendum. If this examiner is unavailable, the veteran should be afforded another VA examination to determine if any current left ankle disability is related to the inservice finding in August 1976 regarding the left ankle or otherwise related to service. Accordingly, this matter is REMANDED for the following actions: 1. Contact the VA examiner who conducted the October 2003 VA ankle examination to provide an addendum. If this examiner is unavailable, the veteran should be afforded another VA examination to determine the nature and etiology of any current left ankle disability. The examiner should review the claims folder. The examiner should opine as to whether it is more likely than not, less likely than not, or at least as likely as not, that any current left ankle is related to service to include to the August 1976 inservice finding regarding left ankle, or if current disability is otherwise related to service. The examiner should provide a rationale for his/her opinion. 2. The AMC should then readjudicate the claim on appeal in light of all of the evidence of record. If the issue remains denied, the veteran should be provided with a supplemental statement of the case as to the issue on appeal, and afforded a reasonable period of time within which to respond thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. 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 Supp. 2006). ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs