judge_norm: MARK D HINDIN

text:
Citation Nr: 1327000
Decision Date: 08/22/13    Archive Date: 08/29/13

DOCKET NO.  12-09 994	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado

THE ISSUE

Entitlement to service connection for lower urinary tract symptoms (LUTS), claimed as urethritis.

REPRESENTATION

Appellant represented by:	Colorado Division of Veterans Affairs

ATTORNEY FOR THE BOARD

K. Fitch, Counsel

INTRODUCTION

The Veteran served on active duty from July 1953 to June 1957.

This matter comes before the Board of Veterans'' Appeals (Board) from an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado that denied entitlement to service connection for lower urinary tract symptoms, claimed as urethritis.

In January 2013, the Board remanded this matter for additional development.

The Board notes that, in addition to the Veteran's claims file, the Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process.  The Board has reviewed the contents of the paperless file as well as the Veteran's claims file and will proceed with review of the claim based upon all relevant evidence.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. � 20.900(c) (2012).  38 U.S.C.A. � 7107(a)(2) (West 2002).

FINDING OF FACT

A urinary tract disorder, to include LUTS, recurrent urinary tract infections, or urethritis, has not been shown to have had its onset in service, within one year of service, nor is such disability otherwise a result of active military service.

CONCLUSION OF LAW

A urinary tract disorder, to include LUTS, recurrent urinary tract infections, and urethritis, was not incurred in or aggravated by the Veteran's active military service, nor is such disability presumed to have been incurred in service.  38 U.S.C.A. �� 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. �� 3.6, 3.159, 3.303, 3.307, 3.309, 3.310 (2012).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  VCAA.

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. �� 3.102, 3.156(a), 3.159 and 3.326(a).

Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 C.F.R. � 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.

VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

Here, the Veteran was sent a letter dated in March 2011 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal.  The letter also explained what type of information and evidence was needed to establish a disability rating and effective date.  Accordingly, no further development is required with respect to the duty to notify.

Next, VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. � 5103A; 38 C.F.R. � 3.159.

The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination.  Moreover, his statements in support of the claim are of record.  The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified.  The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim.

The Board remand included instructions to (i) obtain VA hospitalization records dated in September 2006, (ii) attempting to obtain any remaining outstanding records of relevant treatment by Dr. Haley and any other private treatment provider, and (iii) obtain an addendum VA opinion.  Letters dated in February and March 2013 requested the Veteran's assistance in obtaining his private and VA treatment records.  Subsequently, these records were obtained and associated with the Veteran's claims file.  The examiner who had provided the prior VA examination provided an addendum in June 2013 that complied with the January 2013 remand request.

There is no further notice or assistance that would be reasonably likely to assist the Veteran in substantiating the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

The United States Court of Appeals for Veterans Claims has interpreted the provisions of 38 C.F.R. � 3.103(c)(2) as imposing two distinct duties on VA employees, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam).  The Veteran had a January 2012 hearing before a Decision Review Officer at the RO.  At the hearing, the DRO identified the elements of the claim that had not been substantiated and suggested evidence that could substantiate those elements.

II.  Analysis

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. �� 1110, 1131; 38 C.F.R. �� 3.303, 3.304.

Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disease or injury.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995); 38 C.F.R. � 3.303(a).

Lay persons may provide evidence of diagnosis and nexus under 38 U.S.C.A. � 1154(a).  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (vacating a decision that stated categorically that a valid medical opinion was required to establish nexus and that a lay person was not competent to provide testimony); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay evidence can be competent and sufficient to establish a diagnosis of the lay person is reporting a contemporaneous medical diagnosis); see also Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection).

When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, reasonable doubt will be resolved in each such issue in favor of the claimant.  38 U.S.C.A. � 5107(b); 38 C.F.R. � 3.102.  An appellant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail.  To deny a claim on its merits, the evidence must preponderate against the claim.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Alemany v. Brown, 9 Vet. App. 518 (1996).

The Veteran's service treatment records indicate that in December 1954, the Veteran was seen aboard the U.S.S. Walker with complaints of abdominal.  On further evaluation at a Navy Dispensary, the pain was noted to be in the area of the umbilicus. The impression was irritable colon.  In August 1956 he was seen aboard the U.S.S. Franklin D. Roosevelt for a sore on his penis.  The treatment notes indicated no ulceration, maceration, last sexual exposure 4 weeks prior, and a note that stated that the treatment provider did not believe that lesion was "anything significant."  There was no mention of or treatment for urinary tract infections or urethritis.  The Veteran's separation examination was normal.

The Veteran is status post left nephrectomy.

The Veteran underwent VA hospitalization in September 2006 after reporting a two to three day history of urinary symptoms and fever.  It was noted that he had experienced four or five urinary tract infections (UTIs) in the past 20 years.  The discharge diagnosis was UTI.

Records from Dr. Haley show treatment from July 1997, when he was evaluated for a possible obstruction of the right kidney, to June 2007, when a history of recurrent UTIs was noted.

The Veteran's claim for service connection was received in March 2011.  In his claim he reported that he had urethritis that had begun in January 1957 aboard the U.S.S. Walker.

VA treatment records dated from 2005 to 20011 show treatment for UTIs, hyperplasia of the prostate, and unrelated conditions.

In order to determine whether the Veteran had a urinary tract disability related to military service, the Veteran was afforded a VA examination in October 2011.  The examiner indicated that the Veteran's claims file had been reviewed in connection with the examination and report.  The Veteran was diagnosed with LUTS.  The date of the diagnosis was uncertain but was indicated to be first documented by VA in 2006.  The Veteran's service treatment for sore penis was noted as well as his post military history of urinary tract infections and GU infections.  After examination, the examiner found that the claimed condition was less likely as not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness.  The examiner explained that there was no mention in the medical records of the urethritis to which the Veteran claims etiologic relationship to present complaints.  The examiner also noted that there was no mention of burning, stinging, or usual symptoms of urethritis in the two navy entries.  Rather maceration was identified.  The examiner indicated that urethritis appeared to have come on later.

At the DRO hearing in January 2012, the Veteran testified that during service he was seen by a corpsman after experiencing a discharge from his penis.  The corpsman told him that he had urethritis due to straining from lifting things.  He said that after service he received treatment from doctors, who he believed were dead.  He was to provide releases for additional treatment records after the hearing; but appears to have provided releases only for the records of treatment by Dr. Healey.

The VA examiner provided an addendum opinion in June 2013.  The examiner indicated that the Veteran's claims file and virtual VA file had been reviewed in connection with the report.  Additional significant medical entries were also noted in the report.  After reviewing the additional material, the examiner stated that the Veteran had been treated for urinary tract infection which was, by its very nature, an internal infection.  A maceration or sore on the penis was external and would not normally be anticipated to have any effect on the internal structures of the genitourinary tract.  The examiner concluded by finding that, based on a review of all hospitalizations at VA and in particular clinic visits since 2011, there was no evidence to support the contention that the Veteran's sore or maceration of the penis (documented in the service treatment records) was etiologically related to his more recent urinary tract infections.  Therefore, it was not as likely as not that the recent history of urinary tract infections was related to his sore/maceration of the penis in service.

Analysis

The record shows a current disability, as documented on the VA examination and treatment records.  The service treatment record documents treatment for a sore on the penis.  The appeal turns on whether a link can be established between the in-service event and the current disability.

The VA examiner provided negative opinions in October 2011 and June 2013.  In determining the probative value to be assigned to a medical opinion, the Board must consider three factors.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case.  A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran.  Nieves-Rodriguez, 22 Vet. App. at 303-04.

The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion.  See Id.  A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis.  The most probative value of a medical opinion comes from its reasoning.  Therefore, a medical opinion containing only data and conclusions is not entitled to any weight.  In fact, a review of the claims file does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions").

The VA examiner noted an accurate history and provided an unequivocal opinion.  The examiner did not consider the Veteran's testimony that he had been told he had urethritis in service.  While the Veteran would be competent to testify to being told of this diagnosis; Jandreau; his recollections are not deemed credible.  The Veteran reported in his claim that this treatment took place on the Walker, while the service treatment record shows that it occurred on the Roosevelt.  He reported that the treatment took place in January 1957, but the service treatment record shows it took place in December 1954.  His testimony did not report the sore that was documented in the service treatment records.  It also does not seem credible that the corpsman would have told the Veteran of his diagnosis but not put it in the treatment record.

It is understandable that the Veteran would have difficulty recalling the details of events that occurred nearly 60 years ago; but these difficulties render his testimony as to the reported diagnosis of urethritis incredible.  The examiner otherwise provided reasons for the opinions that were based on the record.  The examiner's opinions are; therefore, of significant probative value.

There is no other medical opinion linking the Veteran's current disabilities to service.  The Veteran has not clearly reported a continuity of symptoms since service, but because his claimed disabilities are not listed as chronic diseases, a continuity of symptomatology would not be sufficient to establish service connection.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (38 C.F.R. � 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. � 3.309(a)).

In addition, the Veteran has contended that his claimed disability is related to the findings in service.  Although lay persons are competent to provide a diagnosis of a simple or observable conditions such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions.  Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).

It would require medical expertise to say that the Veteran's currently diagnosed genitourinary conditions are the same as, or related to, the symptoms reported in service.  As such, these are  medical question, beyond the competency of a layperson.  Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); 38 C.F.R. � 3.159(a).

The competent and credible evidence is against a link between the current urinary tract disabilities and service.  Because the preponderance of the evidence is against the claim, reasonable doubt does not arise, and the claim must be denied.  38 U.S.C.A. � 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

ORDER

Service connection for a urinary tract disorder, to include LUTS, recurrent urinary tract infections, or urethritis,  is denied.

____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


series: legacy

judge_norm: KATHLEEN K GALLAGHER

disposition: granted

condition: knee

text:
Citation Nr: 1328000
Decision Date: 09/03/13    Archive Date: 09/10/13

DOCKET NO.  11-31 048	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas

THE ISSUES

1.  Whether new and material evidence has been received sufficient to reopen a claim for service connection for arthritis of the left knee.

2.  Entitlement to service connection for arthritis of the left knee, to include as secondary to a service-connected right knee disability.

REPRESENTATION

Appellant represented by:	Texas Veterans Commission

WITNESSES AT HEARING ON APPEAL

Appellant, his wife, and his Representative

ATTORNEY FOR THE BOARD

C. Boyd, Associate Counsel

INTRODUCTION

The Veteran served on active duty from November 1961 to February 1985.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a October 2010 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.

In June 2013, the Veteran appeared before the undersigned Veteran's Law Judge via videoconference and gave testimony in support of his claim.  A complete transcript is of record.

In addition to a paper claims file, there is a Virtual VA electronic file.  The Board has reviewed both files prior to reaching this decision.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. � 20.900(c) (2012).  38 U.S.C.A. � 7107(a)(2) (West 2002).

FINDINGS OF FACT

1.  In a March 2002 rating decision, the RO denied entitlement to service connection for arthritis of the left knee; the decision became final in March 2003.

2.  Evidence received since the March 2002 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for arthritis of the left knee, and raises a reasonable possibility of substantiating the claim.

3.  The evidence reflects that the Veteran has a current diagnosis of osteoarthritis of the left knee and that it is at least as likely as not that his currently diagnosed disease had its onset in service or, in the alternative, that it is etiologically related to his service-connected right knee disability.

CONCLUSIONS OF LAW

1.  The March 2002 rating decision is final; new and material evidence has been received and the claim seeking service connection for arthritis of the left knee is reopened.  38 U.S.C.A. �� 5108, 7105 (West 2002); 38 C.F.R. � 3.156(a) (2012).

2.  Resolving all doubt in the Veteran's favor, service connection for arthritis of the left knee is warranted.  38 U.S.C.A. � 1110 (West 2002), 38 C.F.R. �� 3.303, 3.310 (2012).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  VA's Duties to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002
& Supp. 2012); 38 C.F.R. �� 3.102 , 3.156(a), 3.159, 3.326(a) (2012). The Board finds that VA compliance is sufficient to permit review of the petition to reopen for entitlement to service connection for arthritis of the left knee.  As the determination below represents a grant of the petition to reopen and a grant of the underlying claim for service connection, a detailed discussion of VA's duty is not necessary. In view of the outcome, any deficiencies in such notice or assistance have not prejudiced the Veteran.  See 38 U.S.C.A. �� 5103, 5103A; 38 C.F.R. � 3.159 ; Kent v. Nicholson, 20 Vet. App. 1 (2006).

II.  New and Material Evidence

Generally, a claim which has been denied in an unappealed or final RO decision or an unappealed Board decision may not thereafter be reopened and allowed.  38 U.S.C.A. �� 7104(b), 7105(c) (West 2002).  The exception to this rule is 38 U.S.C.A. � 5108 , which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim.

New evidence means existing evidence not previously submitted to agency decision makers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. � 3.156(a).

For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).  New and material evidence need not address each previously unproven element of a claim to be sufficient to reopen the claim.  Shade v. Shinseki, 24 Vet. App. 110, 120 (2010).

In 2010, since the final March 2002 decision, the Veteran submitted a private treatment record indicating he is receiving treatment for osteoarthritis in his left knee and underwent a left knee replacement.  The medical provider opined that it is at likely as not that the left knee condition was caused and accelerated by the Veteran's service-connected right knee disability.  This statement is neither cumulative nor redundant of the evidence of record in March 2002, and it raises a reasonable possibility of substantiating the claim by addressing an alternate theory of entitlement to service connection and addressing a causal relationship between the Veteran's service-connected right knee disability and his non-service connected left knee disability.

Accordingly, the Board determines that there is new and material evidence sufficient to reopen the Veteran's service connection claim.  Therefore, the claim to reopen is granted.

III.  Service Connection for Arthritis of the Left Knee

Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service.  38 U.S.C.A. �� 1110.  Service connection may also 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).

To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service.  Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)).  In many cases, medical evidence is required to meet the requirement that the evidence be "competent".  However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).

Service connection for certain chronic diseases, including arthritis, may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculous disease and Hansen's disease; seven years for multiple sclerosis) from the date of separation from service.  38 U.S.C.A. �� 1101, 1112; 38 C.F.R. �� 3.307(a)(3), 3.309(a).  In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service.  38 C.F.R. � 3.307(a).  The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations.  38 U.S.C.A. � 1101(3); 38 C.F.R. � 3.309(a); Walker v. Shinseki 708 F.3d 1331 (Fed. Cir. 2013)

Where a chronic disease under section 3.309(a) is shown as such in service or in the presumptive period 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.  38 C.F.R. � 3.303(b).  In cases where a chronic disease is "shown as such in service", the Veteran is "relieved of the requirement to show a causal relationship between the condition in service and the condition for which service connected disability compensation is sought."  Walker v. Shinseki 708 F.3d 1331, 1336 (Fed. Cir. 2013).  Instead, service connection may be granted for subsequent manifestations of the same chronic disease without any evidence of a link or connection between the chronic disease shown in service and manifestations of the same disease at a later time.  In other words, "there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease."  Id.

If evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not "shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned," i.e., "when the fact of chronicity in service is not adequately supported," then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease.  Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed."  Id.

Under section 3.310(a) of VA regulations, service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. � 3.310(a).  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability.  Allen v. Brown , 7 Vet. App. 439, 448 (1995) (en banc).  Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation.  Allen, 7 Vet. App. at 448.  Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened.  Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991).

The provisions of 38 C.F.R. � 3.310 were amended, effective from October 10, 2006; however, the new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 7 1 Fed. Reg. 52744 -47 (Sept. 7, 2006).  Although the stated intent of the change was merely to implement the requirements of Allen, the new provisions amount to substantive changes to the manner in which 38 C.F.R. � 3.310 has been applied by VA in Allen-type cases since 1995.

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that 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).  Competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994).
Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  In evaluating the probative value of competent medical evidence, the Court has stated in pertinent part:

"The 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 adjudicator..."

See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993).  The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).

It is uncontroverted that the Veteran has a diagnosis of osteoarthritis of the left knee and was granted service connection for a right knee disability, specifically degenerative joint disease, in March 1985.  See December 2012 VA Examination and April 1985 rating decision.  There are no service treatment records related to a left knee disability and the Veteran did not seek treatment for a disability in the left knee until 1999, 14 years after his retirement from the military.

In terms of his symptoms, at the June 2013 hearing before the Board, the Veteran stated that began wearing a brace on his right knee in 1983 and at that time, his primary problem was his right knee, however, intermittently his left knee "would flare up also."  He stated that after service he began limping due to his right knee condition and had to quit playing basketball and handball because of issues in both knees.  He stated that prior to his right knee replacement in 2007 he would periodically limp so badly that he "couldn't walk more than a couple hundred feet in some cases."  He stated that he had injections in his left knee beginning in 2003 or 2004 that helped with his pain prior to a left knee replacement in 2010.  The Veteran is competent to testify as to matters he has personally experienced.  See 38 C.F.R. � 3.159(a)(2).

As noted, the Veteran has a current diagnosis and thus satisfies the first required element for direct and secondary service connection.  As to whether the Veteran's left knee disability was incurred in service, there is sparse evidence in the record.  Although arthritis is a disease encompassed by 38 C.F.R. � 303(b), no manifestations were shown in service, no diagnosis was made during service, and there was no finding of chronicity during service.  Therefore, a medical nexus must be shown between the currently diagnosed disease and service; continuity of symptomatology is not an available argument.  In the absence of a direct nexus, in order for the Veteran's service connection claim to succeed, he must show that his left knee arthritis was at least as likely caused or aggravated by his right-knee disability as opposed to some other factor or factors.

Here, there are three nexus opinions of record related to the Veteran's left knee condition provided by competent practitioners: (1) a July 2010 opinion from Dr. A.M., which is favorable to the Veteran's claim; (2) an opinion from the December 2011 VA examiner, which is against the Veteran's claim, , and (3) a June 2013 opinion from Dr. P.K., provided following the Veteran's hearing before the Board, which is also favorable to his claim.  The Board will discuss these nexus opinions in turn.

Dr. A. M. at the University of Texas Health Science Center performed the Veteran's right knee replacement in 2007 and left knee replacement in 2010.  She submitted a June 2010 statement opining that it is "as likely as not that the left knee degeneration was caused and accelerated by the altered gait and posture from the right knee disease and deformity," however, she did not provide any further explanation for her statement.

At the Veteran's December 2011 VA examination, the examiner concluded that Dr. A.M was "not in a position to comment" on the length or severity of any alteration of gait because she was not the Veteran's treating physician prior to his knee replacements.  The Board finds this a weak rationale.  The evidence reflects that by the time the Veteran saw Dr. A.M. he had severe problems in both knees which he related to her and she considered such evidence in determining that the Veteran needed the knee replacements.  The VA examiner did not consider Dr. A.M.'s theory of altered gait, but rather concluded that medical literature "does not indicate that the problems in one joint can be related to problems in another joint in the absence of a generalized inflammatory condition."  The Board finds the VA examination inadequate as it does not provide sufficient consideration of the Veteran's theory of secondary service connection.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that a medical opinion is adequate only if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim).  However, as instructed by the Board at the hearing, the Veteran subsequently provided an opinion adequate to allow the Board to grant his claim rather than remand to the RO for further development.

In his 2013 opinion, Dr. P.K. opined that the Veteran injured both of his knees in service and the right knee was worse than the left.  He related that in the early 1990s he treated both the Veteran's knees with anti-inflammatories and injections.  The doctor addressed the question of whether the severe arthritis in the right knee would affect the left knee.  He found that gait patterns and activities that favor the right knee would affect the left knee and based on that conclusion opined that "to some degree, arthritic changes of the left knee are a result of the right knee arthritic changes."  He emphasized his belief that the degenerative changes to the left knee began prior to the Veteran's retirement from service.  This opinion is adequate as it addresses all the evidence and provides an opinion as to each possible theory of entitlement to service connection.

Resolving all doubt in the Veteran's favor, the opinion from Dr. P.K. provides the necessary medical nexus needed to grant service connection.  Not only does Dr. P.K. opine that it is at least as likely as not that the Veteran's left knee disability began during service, he also concluded that the Veteran's left knee arthritis is as likely the result of or associated with his service-connected right knee disability as it is the result of some other cause or factor.

The Board concludes that evidence for and against the claim for service connection for arthritis of the left knee is at least in approximate balance.  Accordingly, the Board will resolve the benefit of the doubt in favor of the Veteran as the law requires and grant service connection for arthritis of the left knee.  38 U.S.C.A. � 5107; 38 C.F.R. � 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

ORDER

New and material evidence having been received, the previously denied claim for service connection for arthritis of the left knee is reopened.

Service connection for arthritis of the left knee is granted.

____________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


judge_norm: JESSICA J WILLS

disposition: remanded

text:
Citation Nr: 1329000
Decision Date: 09/10/13    Archive Date: 09/17/13

DOCKET NO.  06-37 608	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon

THE ISSUES

1.  Entitlement to service connection for residuals of a left hand injury.

2.  Entitlement to an initial compensable disability rating for bilateral hearing loss prior to July 12, 2011.

3.  Entitlement to an initial disability rating in excess of 10 percent for bilateral hearing loss on or after July 12, 2011.

4.  Entitlement to an initial disability rating in excess of 10 percent for tinnitus.

5.  Entitlement to an increased disability rating for a scar of the left thumb, currently evaluated as 10 percent disabling.

6.  Entitlement to an initial disability rating in excess of 10 percent for left thumb digital nerve damage.

7.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).
REPRESENTATION

Appellant represented by:	Oregon Department of Veterans' Affairs

ATTORNEY FOR THE BOARD

Rebecca Feinberg, Counsel

INTRODUCTION

The Veteran had active service from June 1983 to May 1987.

These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon.

In pertinent part, the RO denied entitlement to a compensable evaluation for a scar of the left thumb in a December 2003 rating decision.  Subsequently, in a January 2005 rating decision, the RO granted service connection for bilateral hearing loss and tinnitus and assigned a noncompensable evaluation for hearing loss effective from July 30, 2004, and a 10 percent evaluation for tinnitus effective from November 12, 2004.  The Veteran's left thumb evaluation was recharacterized to include numbness, but a compensable evaluation was denied.

In November 2007, the Veteran was assigned a compensable 10 percent evaluation for his left thumb scar effective from August 26, 2003.  In a May 2009 rating decision, the RO continued to deny the Veteran increased disability evaluations for the Veteran's bilateral hearing loss and tinnitus and also denied his claim of entitlement to TDIU.  In another May 2009 rating decision, the RO denied a separate 10 percent disability rating for left thumb digital nerve damage effective from August 26, 2003.  The Veteran was also denied entitlement to service connection for residuals of a left hand injury in an October 2009 rating decision.  In an August 2011 rating decision, the RO granted entitlement to service connection for a low back disorder, which constituted a full grant of that appeal, and assigned a 10 percent rating for the Veteran's service-connected bilateral hearing loss effective July 12, 2011.

The Veteran has continued his appeal for higher disability ratings for his left thumb and bilateral hearing loss.  See AB v. Brown, 6 Vet. App. 35 (1993).

The Veteran's claims were previously before the Board and remanded in May 2011.

The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the appellant if further action is required.

REMAND

Documents dated in May 2009 and June 2009 show that the Veteran applied for disability benefits from the Social Security Administration (SSA).  Specifically, the correspondence requested that VA provide the Veteran's medical records to SSA in conjunction with his disability claim.  There is no indication as to which disability or disabilities upon which the Veteran sought these benefits.  However, no attempt has been made to obtain these federal records, and such attempts must be accomplished on remand.

The Board also finds that additional VA examinations are necessary for the claims involving the Veteran's left hand and thumb as well as entitlement to TDIU.

Accordingly, the case is REMANDED for the following action:

1.  The RO/AMC should obtain a copy of any decision to grant or deny SSA disability benefits to the Veteran and the records upon which that decision was based and associate them with the claims file.  If the search for such records has negative results, the claims file must be properly documented as to the unavailability of those records.

2.  The Veteran should be afforded a VA examination to ascertain the severity and manifestations of his service- connected left thumb scar and digital nerve damage and to determine whether there are any other residuals of a left hand injury.  Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file.

The examiner should comment on the severity of the Veteran's service-connected left thumb scar and report all signs and symptoms necessary for rating the disability under the rating criteria.  In particular, the examiner should provide a description of the Veteran's left thumb scar, including the size and location, and indicate whether it is unstable or painful; deep or superficial; and linear or nonlinear.  The examiner should also state whether the scar causes any functional loss other than the nerve damage that is already service-connected.

The examiner should also comment on the severity of the Veteran's service-connected left thumb digital nerve damage and report all signs and symptoms necessary for rating the disability under the rating criteria.  In particular, the examiner should identify any functional effects and comment as to whether the Veteran has mild, moderate, or severe incomplete paralysis, or complete paralysis.

In addition, the examiner should indicate whether there are any residuals of a left hand injury other than a left thumb scar and left thumb digital nerve damage.  If there any separate residuals, he or she state whether it is at least as likely as not that such a disorder is related to the Veteran's military service, including his symptomatology therein.

(The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.)

A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.  Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. � 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review.

3.  The Veteran should also be afforded a VA examination to determine the effect of his service-connected disabilities on his employability.  Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed.  The examiner is requested to review all pertinent records associated with the claims file and to comment on the combined effect of the Veteran's service-connected disabilities on his ability to engage in any type of full-time employment and whether, in the examiner's opinion, the service-connected disabilities are of such severity to result in unemployability.

The Veteran is currently service-connected for a chronic lower back muscular strain with degenerative disc disease, a left thumb scar, left thumb digital nerve damage, tinnitus, and bilateral hearing loss.

It should be noted that consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities.

A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.  Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. � 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review.

4.  After completing these actions, the RO/AMC should conduct any other development as may be indicated by a response received as a consequence of the actions taken in this remand.

5.  When the development requested has been completed, the case should be reviewed by the RO/AMC on the basis of additional evidence.  If the benefit sought is not granted, the appellant and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

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. 2012).

_________________________________________________
JESSICA J. WILLS
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. � 20.1100(b) (2012).


judge_norm: MICHAEL MARTIN

disposition: denied

text:
Citation Nr: 1330000
Decision Date: 09/19/13    Archive Date: 09/25/13

DOCKET NO.  10-09 701	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in
St. Louis, Missouri

THE ISSUES

1.  Entitlement to service connection for bilateral ankle hypermobility, claimed as left and right ankle condition.

2.  Entitlement to service connection for left heel disability.

3.  Entitlement to service connection for right heel disability.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

Jonathan Tracy, Associate Counsel

INTRODUCTION

The Veteran served on active duty from January 1967 to November 1970.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, MO.

The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim.  A review of the documents in such file reveals that most of the documents are either duplicative of the evidence in the paper claims file or irrelevant to the issues on appeal.  The only document in the Virtual VA file that is relevant and not included in the paper claims file is a written brief presented by the Veteran's representative dated in August 2013.

FINDINGS OF FACT

1.  All notification and development action needed to fairly adjudicate the claim herein decided has been accomplished.

2.  The Veteran had preexisting asymptomatic bilateral pes planus noted upon entrance into service.

3.  The most probative clinical evidence of record is against a finding that the Veteran's preexisting bilateral pes planus caused or aggravated his current bilateral ankle, left heel, or right heel problems during service

4.  The most probative clinical evidence of record is against a finding that the Veteran has bilateral ankle, left heel, or right heel problems caused or aggravated by service.

CONCLUSIONS OF LAW

1.  Service connection for bilateral ankle hypermobility is not warranted.  38 U.S.C.A. �� 1101, 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. �� 3.102, 3.159, 3.303, 3.304 (2013).

2.  Service connection for left heel disability is not warranted.  38 U.S.C.A. �� 1101, 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. �� 3.102, 3.159, 3.303, 3.304 (2013).

3.  Service connection for right heel disability is not warranted.  38 U.S.C.A. �� 1101, 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. �� 3.102, 3.159, 3.303, 3.304 (2013).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. �� 3.102, 3.156(a), 3.159 and 3.326(a) (2013).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. � 5103(a); 38 C.F.R. � 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  The notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  Notice should be provided to the claimant before the initial unfavorable adjudication of the claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).

In addition, the notice requirement applies to all five elements of a service-connection claim, including: (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 of the disability.  See Dingess v. Nicholson, 19 Vet. App. 473 (2006).

In the instant case, notice was provided to the Veteran in December 2008, prior to the initial adjudication of the claim in July 2009.  The content of the notice letter complied with the requirements of 38 U.S.C.A. � 5103(a) and 38 C.F.R. � 3.159(b).  With respect to the Dingess requirements, the December 2008 letter included notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date.  Accordingly, the duty to notify has been fulfilled.

VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim.  38 U.S.C.A. � 5103A; 38 C.F.R. � 3.159(c).  This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim.  38 C.F.R. � 3.159(c)(4).

In this instance, the claims file contains the Veteran's service treatment records, private treatment records, and the Veteran's own assertions in support of his claim.  The Board has reviewed the file for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim for which VA has a duty to obtain; therefore appellate review may proceed without prejudicing him.  See Bernard v. Brown, 4 Vet. App. 384 (1993).

In addition, the RO arranged for a VA examination in July 2009.  The Board finds that the findings and medical opinion obtained in this case are more than adequate, as the examination report provides medical conclusions relevant to determining service connection.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The claims file, including the medical records, was reviewed and the examiner considered the full history of the disabilities.  The Board finds that the examination was adequate to allow proper adjudication of the issues on appeal.
The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required.  VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision at this time.

II.  Legal Criteria, Factual Background, and Analysis

A.  Service Connection Criteria

The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. � 1110.  Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury.  Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995).

In relevant part, 38 U.S.C.A. � 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits.  Medical evidence of a current disability and nexus is not always required to establish service connection.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  The Board acknowledges that lay testimony is competent regarding features or symptoms of injury or disease when the features or symptoms are within the personal knowledge and observations of the witness.  Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006).  Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. � 3.159(a)(2).

Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises.  It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses.  38 C.F.R. � 3.159(a)(1).

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that 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).  Competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  See Rucker v. Brown, 10 Vet. App. 67, 74 (1997).

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 claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. � 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.  38 U.S.C.A. � 5107(b).

B.  Background and Evidence

The Veteran is seeking service connections for bilateral ankle hypermobility, a left heel disability, and a right heel disability.  In deciding this case, the Board reviewed service treatment records, a VA examination, private treatment records, the Veteran's assertions in support of his claim, and the Veteran's representative's arguments.  Each piece of evidence will be discussed in turn.

The Veteran's entrance examination, dated in November 1966, noted that he had preexisting asymptomatic bilateral pes planus.  The next relevant entry in the Veteran's service treatment records is a treatment note dated in March 1967.  The report indicates that the Veteran twisted his right foot in a rut.  The provisional diagnosis was a right heel contusion.

An X-ray was ordered.  The findings indicated: "There is a line of sclerosis in the superior mid portion of the left calcaneus indicating a healing stress fracture in this area.  No other abnormalities are noted.  Impression: Healing stress fracture mid calcaneus, left foot."

There were no further entries in the service treatment records regarding the March 1967 injury or regarding any other feet or ankle problems.  At his VA examination, the Veteran asserted that he saw a private doctor while on leave due to a possible right hip problem.  Efforts to obtain those records have failed.

The exit examination report dated in November 1970 is not fully completed.  There are dental results, laboratory findings, audiometer test results, and some other findings, but the clinical evaluation section is blank.  The Veteran claims he was not given an exit examination and was told he could get one if he agreed to delay his discharge by two weeks.  However, he did sign a statement indicating that he certified that he was informed of and understood the provisions of BUMED (U.S. Navy Bureau of Medicine and Surgery) Instruction 6120.6D.  That instruction required that the Veteran be told "You have been examined and found to be physically fit for separation from active duty.  If you feel you have a serious defect or condition that is unfitting, tell the doctor who examined you.  The doctor will evaluate your defect or condition and, if necessary, refer you to a hospital for further study and, if warranted by the further study, appearance before a medical board."  See United States Navy Medical News Letter, Vol. 54 No. 5, November 1969, at 52 found at http://archive.org/details/NavyMedicalNewsletter196911.

The Veteran was afforded a VA examination in July 2009.  He again reported that he twisted his right foot during basic training in March 1967.  On the day following the twist, he reported that both ankles appeared swollen.  However, he was forced to complete a 5-mile march in full gear.  He had increasing pain and finished the march nearly last in his platoon.  The Veteran claims he was harassed by his drill instructors and kicked in the ankles.  It was only then, reported the Veteran, that he was sent to sick call.

The Veteran told the examiner that he commonly experienced heel pain after his discharge from service.  He reported having to walk on his toes in the morning due to the pain in his heels.  He also experienced cramps in his legs and feet.

The Veteran also reported ankle pain and swelling in both feet.  At such times, he reports not being able to put on his dress shoes.  He has also had a history of gout of the left podagra beginning 8 years before the examination.  It has occurred in both great toes about one time per year.  He has taken indomethacin or colchicines for these events but not regularly.  The Veteran reported that he uses inserts for foot pain with benefit and takes Tramadol for muscle cramps.

Flare-ups of the ankles were reported to be severe and occur every 2 to 3 weeks and last 1 to 2 days.  Incapacitating episodes of arthritis were reported to occur once a year and last for 1 day.  The Veteran also reported to be able to stand for 15 to 30 minutes and being able to only walk between a quarter of a mile to a mile.

The examiner reported swelling and tenderness of the ankles.  The ankles were shown to have instability and abnormal motion.  The instability is described as "increased excursion with inversion stress."  There was no objective evidence of pain with active motion.  The left dorsiflexion was measured as 0 to 20 degrees and left plantar flexion was measured as 0 to 24 degrees.  The right dorsiflexion was measured as 0 to 20 degrees and right plantar flexion was measured as 0 to 26 degrees.  There was no objective evidence of pain following repetitive motion and no additional limitations after three repetitions.  There was no evidence of joint ankylosis.  The examiner diagnosed the Veteran with bilateral ankle hypermobility.

The reported left foot symptoms included pain (while standing, while walking, and at rest), swelling (while standing, while walking, and at rest), fatigability (while standing and walking), lack of endurance (while standing and walking), and other symptoms.  The location of the pain was reported to be in the sole of the foot, the swelling to be in the whole foot, and the fatigability to be in the arch and metatarsals.

The reported right foot symptoms included pain (while standing, while walking, and at rest), swelling (while standing, while walking, and at rest), fatigability (while standing and walking), lack of endurance (while standing and walking), and other symptoms.  The location of the pain was reported to be in the sole of the foot, the swelling to be in the whole foot, and the fatigability to be in the arch and metatarsal pad area.  The Veteran reported flare-ups in his feet of 1 to 3 times a month that last between 2 to 7 days.

The left foot exam showed no evidence of painful motion, swelling, instability, weakness, or abnormal weight bearing.  There was evidence of tenderness.  The Veteran winced with pressure over the "second metatarsal and medial malleolous plantar fascia from heel to midfoot."

The right foot exam showed no evidence of painful motion, instability, weakness, or abnormal weight bearing.  There was evidence of swelling and tenderness.  The Veteran winced with palpitation between the 3rd and 4th interspace.

The Veteran was diagnosed with plantar fasciitis; minor hammer toe deformity (left greater than right); degenerative arthritis of the great toe (1st metatarsophalangeal (MTP) joint); probable bilateral Mortons Neuroma (right 3rd and 4th interspace); and bilateral great toe degenerative joint disease.

The examiner opined that the bilateral ankle condition is less likely as not (less than 50/50 probability) caused by or a result of the twisting injury to the right ankle in March 1967.  The examiner noted that the instability is bilateral and his documented twisting injury was unilateral.  Further, in regards to the fracture found in the 1967 X-ray, the examiner concluded that this fracture "would not come about by a twisting mechanism but rather repetitive impact loading."  Also, the questioned stress fracture (left) was on the side opposite the twisting injury (right).

The examiner opined that the Veteran's bilateral foot condition is less likely as not (less than 50/50 probability) caused by or a result of the twisting injury to the right ankle and questionable stress fracture of the left heel (calcaneus).  In regards to the X-ray conducted in March 1967, the examiner explained that the line is still visible on the films of December 2008.  However, given the nature of stress fractures and radiographic healing, the examiner doubts this line was really a stress fracture.  He reported that the "line likely represents another benign process."

The examiner provided detailed analysis of why the current conditions were not the result of the March 1967 injury or the Veteran's preexisting pes planus.  He reported that the "podiatric evaluation and current clinical examination suggests chronic plantar fasciitis which is known to become more symptomatic with aging and would not be caused by the twisting injury he sustained in boot camp.  The pes planus that he entered the service with might over time be a factor in aggravation but as he did not pronate on examination that makes the stress from pes planus on the plantar fascia somewhat less."

Further, the examiner explained that the "great toe arthritis and [the Veteran's] hammer toe changes at the second MTPs are definitely not connected to his twisting injury of the ankle.  The Morton's neuroma likely causing the weight bearing burning sensation between the 3rd and 4th toes of the right foot is likely aggravated by the greater degree of arthritis of the right great toe joint compared to the minor change on the left.  This greater degree of deformity on the right would cause greater intermetatarsal pressure on the right than the left."

In conclusion, the examiner found that with respect to all the foot diagnoses, there is less likely as not a causal connection to the twisting injury.  Rather, other factors as outlined in the report are more likely to provide explanations of the Veteran's current foot complaints.

The Board also reviewed VA treatment records and private treatment records.  Beginning in 2008, the Veteran complained of various feet and ankle problems at the VAMC Kansas City.  The records show treatment for a number of problems related to the Veteran's feet and ankles.  The Veteran was also treated by several private health care providers.  The relevant private records in the claims file are dated as early as June 2007.

He has been diagnosed with heel spurs, pain in his feet, limited range of motion in his ankles, plantar faciitis, among other problems.  However, none of the private treatment records or VA treatment records provides an opinion on the etiology of the Veteran's conditions.  The Veteran claims that he was treated for various feet and ankle problems right after he was discharged from service.  VA attempted to help the Veteran obtain those records, but those efforts have failed.

The Board also considered the Veteran's assertions.  As discussed above, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses.  Layno, 6 Vet. App. at 470.  However, the Veteran is not competent to provide a medical diagnosis and medical nexus opinion.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).

The Veteran claims that his feet and ankle problems started in service and continued since that time.  In his claim, he reported that he went to sick call in March 1967 due to pain and swollenness.  In later statements, he asserted that his drill instructors kicked his ankles and made him go on a 5-mile march when his feet were swollen.  The Veteran also submitted a statement from his brother who was in the same unit at basic training.  The brother corroborates the Veteran's story that the drill instructors abused the Veteran and that it was not until after the march that the Veteran was allowed to report to sick call.

The Veteran also asserts in his VA Form 9, dated in March 2010, that he received treatment in the 1970s and that he complained of feet pain at a 1988 Agent Orange examination.

The Board also considered arguments presented by the Veteran's representative.  Those arguments do not offer any additional evidence not discussed above.

C.  Analysis

The Veteran claims that his feet and ankle problems began in service and have continued since that time.  The Board notes that the Veteran was treated for a right foot and right ankle problem in March 1967.  In his recent statements, the Veteran claims that both of his ankles were swollen when he reported to sick call in March 1967.  However, the service treatment record is clear that only his right foot and ankle were injured in the sprain.  Regardless, the Veteran was not treated for any other feet or ankle problems while in service.  The evidence does not indicate that he had any problems at the time he was discharged from service.  Also, there are no treatment records until over 35 years after he was discharged from service.

The Veteran claims that he complained of feet problems in 1988, but that is still 18 years after service.  While the treatment records show an extensive recent history of treatment for feet and ankle problems, there is nothing in the records that are in contravention of the VA examination or provide any more relevant information not found in the VA examination report.  Importantly, there is no medical opinion in the treatment records that support the Veteran's contention that he suffered from continuous ankle and feet problems.

In weighing the competent medical evidence, only the VA examination offers an opinion on the etiology of the Veteran's feet and ankle conditions.  The opinion from the VA examiner is clear that the current problems are not related to the Veteran's time in service or pes planus.  While he had a documented injury in service and has current feet and ankle problems, there is no medical evidence establishing a nexus between the current problems and the 1967 injury.

The Board gives greater probative weight to the competent medical opinion over the Veteran's assertions.  The Veteran's current problems were not caused by or aggravated by his time in service.  Therefore, the Board finds that service connection cannot be granted.

ORDER

1.  Entitlement to service connection for bilateral ankle hypermobility is denied.

2.  Entitlement to service connection for left heel disability is denied.

3.  Entitlement to service connection for right heel disability is denied.

____________________________________________
MICHAEL MARTIN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs