Citation Nr: 0721953 Decision Date: 07/20/07 Archive Date: 08/02/07 DOCKET NO. 05-14 759 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for status post fracture of the left leg. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Anthony Yim, Associate Counsel INTRODUCTION The veteran served on active duty from May 8, 1979 to June 18, 1979. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a July 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the benefits sought on appeal. The veteran appealed that decision to BVA, and the case was referred to the Board for appellate review. In his substantive appeal, the veteran requested a hearing before the Board. However, he withdrew that request in May 2006. FINDINGS OF FACT 1. All relevant evidence necessary for the equitable disposition of the veteran's appeal has been obtained. 2. The veteran's left leg disorder clearly and unmistakably existed prior to service is not the result of disease or injury in service. 3. The veteran's preexisting left leg disorder clearly and unmistakably did not permanently worsen or increase in severity during service. CONCLUSION OF LAW A left leg disorder was not aggravated by active service. 38 U.S.C.A. §§ 1101, 1111, 1131, 1153 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A (West 2002 & Supp. 2006); 38 C.F.R. § 3.159(b) (2006); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2006); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In this case, the RO did provide the appellant with notice in March 2004, prior to the initial decision on the claim in July 2004. Therefore, the timing requirement of the notice as set forth in Pelegrini has been met and to decide the appeal would not be prejudicial to the claimant. Moreover, the requirements with respect to the content of the notice were met in this case. The RO informed the veteran in the notice letter about the information and evidence that is necessary to substantiate his claim for service connection. Specifically, the March 2004 letter stated that in order to establish service connection the evidence must show that he had an injury in military service or a disease that began in, or was made worse during military service, or that there was an event in service that caused injury or disease; that he has a current physical or mental disability; and, that there is a relationship between his current disability and an injury, disease, or event in military service. In addition, the RO notified the veteran in the notice letter about the information and evidence that VA will seek to provide. In particular, the March 2004 letter indicated that reasonable efforts would be made to help him obtain evidence necessary to support his claim and that VA was requesting all records held by Federal agencies, including service medical records, military records, and VA medical records. The veteran was also informed that a medical examination would be provided or that a medical opinion would be obtained if it was determined that such evidence was necessary to make a decision on his claim. The RO also informed the veteran about the information and evidence that he was expected to provide. Specifically, the March 2004 letter notified the veteran that he must provide enough information about his records so that they could be requested from the agency or person that has them. The March 2004 letter also requested that he complete and return the enclosed VA Form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs, if there were any private medical records that he would like VA to obtain on his behalf. In addition, the March 2004 letter stated that it was the veteran's responsibility to ensure that VA receives all requested records that are not in the possession of a Federal department or agency. Although the notice letter that was provided to the veteran did not specifically request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim as per 38 C.F.R. § 3.159(b)(1) (2006), the Board finds that the appellant was otherwise fully notified of the need to give to VA any evidence pertaining to his claim. In this regard, the RO has informed the appellant in the rating decision and SOC of the reasons for the denial of his claim and, in so doing, informed him of the evidence that was needed to substantiate the claim. All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (2006) (harmless error). As noted above, because each of the four notice requirements has been fully satisfied in this case, any error in not providing a single notice to the appellant covering all the requirements is harmless error. Sanders v. Nicholson, No. 06-7001 (Fed. Cir. May 16, 2007); Simmons v. Nicholson, No. 06-7092 (Fed. Cir. May 16, 2007). Further, as no award of service connection will result from this decision, any notice as to the degree of disability to be assigned or the effective date is not needed. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The duty to assist the veteran has also been satisfied in this case. The veteran's service medical records as well as all available VA records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the veteran's claim. The veteran was also afforded a VA examination in June 2004. VA has further assisted the veteran throughout the course of this appeal by providing him with a SOC, which informed him of the laws and regulations relevant to his claim. For these reasons, the Board concludes that VA has fulfilled the duty to assist the veteran in this case. Law and Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1131 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2006). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2006). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002). History provided by the veteran of the pre-service existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a preexisting condition. 38 C.F.R. § 3.304(b)(1) (2006); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995). To rebut the presumption of sound condition under section 1111 of the statute for disorders not noted on the entrance or enlistment examination, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than clear and unmistakable evidence). It is an "onerous" evidentiary standard, requiring that the no-aggravation result be "undebatable". Cotant v. West, 17 Vet. App. 116, 131 (2003) (citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993) (citing Akins v. Derwinski, 1 Vet. App. 228, 232 (1991)) and Vanerson, 12 Vet. App. at 258, 261; id. at 263 (Nebeker, C.J., concurring in part and dissenting in part). Concerning clear and unmistakable evidence that the disease or injury was not aggravated by service, the second step necessary to rebut the presumption of soundness, a lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed.Cir. 2004); 38 U.S.C.A. § 1153 (West 2002). A presumption is an assumption of fact resulting from a rule of law which requires such fact to be assumed from another fact or group of facts found or otherwise established in the action. Black's Law Dictionary 1067 (5th ed. 1979). Therefore, where the presumption of sound condition at entrance to service cannot be rebutted, the fact for which the presumption stands--that is, that the veteran was in sound condition at entry to service as to the disability for which he seeks service connection--must be assumed as a matter of law. Accordingly, service connection may not be granted on the basis of aggravation of a preexisting disease or injury in such a case. Rather, where the government fails to rebut the presumption of soundness under section 1111, the veteran's claim must be considered one for service incurrence or direct service connection. See Wagner, 370 F.3d at 1094, 1096 (indicating that, in cases where the presumption of soundness cannot be rebutted, the effect is that claims for service connection based on aggravation are converted into claims for service connection based on service incurrence). Where a preexisting disease or injury is noted on the entrance examination, section 1153 of the statute provides that "[a] preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease." 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(a) (2006). For veterans who served during a period of war or after December 31, 1946, clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service, and clear and unmistakable evidence includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. 38 C.F.R. § 3.306(b) (2006). Temporary or intermittent flare-ups of symptoms of a preexisting condition, alone, do not constitute sufficient evidence for a non-combat veteran to show increased disability for the purposes of determinations of service connection based on aggravation under section 1153 unless the underlying condition worsened. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306(b) (2006). The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, will not be considered service connected unless the disease or injury is otherwise aggravated by service. 38 C.F.R. § 3.306(b)(1) (2006). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the veteran is not entitled to service connection for a left leg disorder. In this case, the presumption of soundness applies because even though the veteran disclosed a motorcycle accident in his enlistment examination of April 1979 with fracture of the lower left leg, medical examination made no reference to a leg disorder and it was noted there were "no residuals" from the fracture. As an initial matter, the Board still finds that the veteran had a preexisting left leg disorder prior to entering service. Again, to rebut the presumption of sound condition under section 1111 of the statute for disorders not noted on the entrance or enlistment examination, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). The veteran entered onto active duty May 8, 1979. A physical examination conducted one day later showed prominence at the fracture site in the mid shaft of the left leg, but this was not considered disabling. The fact that the leg deformity was shown one day after entry into service without any corresponding evidence of in-service injury is clear proof that the veteran entered service with this condition. The veteran sought treatment for left leg pain on May 30, 1979 - slightly more than three weeks after entering service. During such treatment, he made contemporaneous statements indicating that he had been involved in a motorcycle accident five years prior to enlistment and that it still affected him. The veteran continued to complain of leg and muscle pain. A medical board determined that the veteran had a preexisting left leg disorder. Also, the VA examination of June 2004 opined that the veteran's left leg disorder had preexisted his period of service. Therefore, the Board finds such evidence to indicate that the veteran had a left leg disorder that clearly and unmistakably existed prior to service. The veteran does not, in fact, deny that he injured his left leg before service. Rather, he argues that he fell during boot camp, re-injuring the leg and sustaining muscle herniation. The Board must also determine whether the veteran's preexisting left leg disorder was aggravated during service. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. To make the determination of whether the veteran's left leg was aggravated during service, the Board must consider the veteran's service medical records as well as evidence developed after service. Although the Board notes that the veteran did experience symptomatology during his period of service, the medical board specifically found no aggravation of his injury while in service. A later VA examination of June 2004 also came to the same conclusion, that the veteran's military service did not aggravate the veteran's pre-existing left leg disorder beyond normal progression. These are the only medical opinions of record. Therefore, there is no medical opinion indicating that the left leg condition was aggravated. The medical opinions against the claim are supported by the fact that there is a lack of any treatment immediately following service or for many decades thereafter. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (incurrence of a disorder or disease during service may be rebutted by absence of medical treatment for, or related complaints about, the claimed condition for a prolonged period after service); Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that absence of evidence may be considered as one factor in rebutting the aggravation issue with respect to 38 U.S.C.A. § 1111 presumption of soundness). The lengthy post-service period devoid of evidence of continuity of symptomatology and treatment, while not dispositive, is significantly probative and weighs heavily against the claim. The only evidence contained in the claims file showing otherwise is the veteran's assertions that his left leg disorder was aggravated from his time in the service. However, the veteran is not a medical professional competent to render an opinion on matters of medical etiology or diagnosis and absent a professional medical opinion linking a current disorder to service, service connection cannot be granted. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Based on the foregoing, the Board finds the veteran's left leg disorder clearly and unmistakably existed prior to service and that it clearly and unmistakably was not aggravated by service; thus, the presumption of soundness is rebutted. 38 U.S.C.A. § 1111 (West 2002). See also VAOPGCPREC 03-2003 (July 16, 2003). The Board finds further that a discussion of whether the presumption of aggravation has been rebutted in this case under the provisions of 38 U.S.C.A. § 1153 (West 2002) and 38 C.F.R. § 3.306(b) (2006) is unnecessary as the Board has found by clear and unmistakable evidence that the veteran's left leg disorder was not aggravated by service in order to conclude that there was a preexisting disorder. VA's General Counsel found that such a finding would necessarily be sufficient to rebut the presumption of aggravation under 38 U.S.C.A. § 1153 (West 2002) and 38 C.F.R. § 3.306(b) (2006). Id. Accordingly, the Board finds that the preponderance of the evidence is against the veteran's claim for service connection for a left leg disorder. (CONTINUED ON NEXT PAGE) ORDER Service connection for status post fracture of the left leg is denied. ____________________________________________ MICHELLE KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs