Citation Nr: 0811243 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 03-22 818 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a bilateral leg disability. 2. Entitlement to service connection for a bilateral foot disability. ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The veteran served on active duty for more than 20 years prior to his discharge in March 1987. These matters initially came to the Board of Veterans' Appeals (Board) on appeal from a March 2002 rating decision that denied service connection for a bilateral leg disability and for a bilateral foot disability. The veteran timely appealed. The Board observes that, in September 2002, the veteran submitted written notice of his decision to withdraw his power of attorney in favor of the American Legion, and has elected to pursue his claim pro se. Records show that the veteran failed to appear for a hearing before a Veterans Law Judge at the RO that was scheduled for July 2004. In February 2005, the Board remanded the matters for additional development. The issue of service connection for a bilateral foot 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. FINDING OF FACT There is no competent evidence establishing that the veteran currently has any leg disability. CONCLUSION OF LAW The criteria for service connection for a bilateral leg disability are not met. 38 U.S.C.A. §§ 1110, 1131, 1112, 1113, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. 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. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held that proper VCAA notice should notify the veteran of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; (3) the evidence, if any, to be provided by the claimant; and (4) a request by VA that the claimant provide any evidence in the claimant's possession that pertains to the claim(s). Through October 2001, May 2003, February 2005, and August 2005, the RO or AMC notified the veteran of elements of service connection, and the evidence needed to establish each element. These documents served to provide notice of the information and evidence needed to substantiate the claim. VA's letters notified the veteran of what evidence he was responsible for obtaining, and what evidence VA would undertake to obtain. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA informed him that it would make reasonable efforts to help him get evidence necessary to support his claim, particularly, medical records, if he gave VA enough information about such records so that VA could request them from the person or agency that had them. The letters asked him if he had any additional evidence to submit, and thereby put him on notice to submit information or evidence in his possession. The veteran was not provided with notice of the type of evidence necessary to establish a disability rating or to assign an effective date for each disability on appeal. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced thereby). The Board finds no prejudice to the veteran in proceeding with a denial of service connection for a bilateral leg disability, as concluded below, because any question as to the appropriate disability rating and effective date to be assigned is rendered moot. He had previously received all required notice regarding service connection. The claim denied obviously does not entail the setting of a new disability rating or an effective date. Accordingly, the veteran is not harmed by any defect with regard to these elements of the notice. There is no indication that any additional action is needed to comply with the duty to assist the veteran. The RO or AMC has obtained copies of available service medical records and outpatient treatment records, and has arranged for a VA examination in connection with the claim decided on appeal, a report of which is of record. The veteran has not identified, and the record does not otherwise indicate, any existing pertinent evidence that has not been obtained. Given these facts, it appears that all available records have been obtained. There is no further assistance that would be reasonably likely to assist the veteran in substantiating the claim. 38 U.S.C.A. § 5103A(a)(2). II. Analysis Service connection is awarded for disability that is the result of a disease or injury in active service. 38 U.S.C.A. §§ 1110, 1131. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may be presumed, for certain chronic diseases, such as arthritis, which develop to a compensable degree within one year after discharge from service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1110, 1112, 1113 (West 2002); 38 C.F.R. 3.307, 3.309 (2007). 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. 38 U.S.C.A. § 1111. Service medical records of the veteran's entry in January 1968 report no defects of the lower extremities, other than abnormal feet (pes planus and hallux valgus). Records dated in July 1982 reflect that the veteran complained of pain and swelling in his right leg of four-to- five days' duration. He reported no known history of trauma. Examination of the right lower leg revealed mild swelling localized at the lateral area of the malleolus. There was slight pain on extension and palpation. The examiner noted limitation of motion, and that the veteran was unable to bear his full weight. Subsequent hospitalization revealed diagnoses of right calf pain, probably muscular strain, as well as edema. Skin test readings in September and December 1982 were negative. Service medical records at the time of the veteran's separation examination in March 1987 did not reveal complaints or findings of any leg disability. There is no evidence within the first post-service year of any arthritis to warrant service connection on a presumptive basis. VA progress notes, dated in August 1999, reveal findings of edema involving the veteran's bilateral lower extremities. During an October 2005 VA examination, the veteran reported some swelling of his legs, which was worse at the end of the day but without flare-ups. He reported no history of inflammatory arthritis, and no effect on activities of daily living or occupation. On examination, there was full range of motion of both legs and both legs were slightly enlarged, but appeared to be normal due to increased body fat. While swelling was noted in the veteran's legs, the examiner opined that this was probably secondary to excessive sodium in his diet, and seemed to resolve with elevation of the legs. The examiner found no leg disability. While there have been findings, at times, of edema and swelling of the legs, there has been no finding of underlying disability. The recent VA examiner attributed swelling of the legs to excess sodium in the diet which was relieved by elevation of the legs, but stressed no underlying disability was present. Although the veteran has asserted that he has a bilateral leg disability, he is a layperson, and lacks the requisite medical knowledge to make a competent diagnosis of a disability. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Accordingly, notwithstanding the veteran's assertions, there is no competent evidence that he currently has either residuals of a right calf muscular strain or a bilateral leg disability. Because the evidence weighs against a current diagnosis of a bilateral leg disability, the preponderance of the evidence is against the claim. The benefit-of-the-doubt doctrine is not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for a bilateral leg disability is denied. REMAND The veteran contends that service connection for a bilateral foot disability is warranted on the basis that his current disability is related to disease or injury in service. The Board notes that the claims file contains service medical records only for the veteran's period of active duty in the U.S. Navy from January 1968 to March 1987. Service medical records for the veteran's period of active duty in the U.S. Army from April 1962 to April 1965, or for active duty (either Army or Navy) prior to January 1968, have not been associated with the claims file. Under these circumstances, the Board finds that the RO or the AMC should make an attempt to obtain the veteran's service medical records for his period of active duty in the U.S. Army from April 1962 to April 1965, and for active duty (either Army or Navy) prior to January 1968. These records are essential to the veteran's claim for service connection. See 38 U.S.C.A. § 5103. In this case, the veteran's DD Forms 214 reflect that the veteran had active service from April 1962 to April 1965, and from July 1978 to March 1987. One DD Form 214 also indicates that the veteran had 11 years 10 months of active duty prior to July 1978. Accordingly, the case is REMANDED for the following action: 1. Undertake appropriate action to obtain the veteran's service medical records for his period of active duty in the U.S. Army from April 1962 to April 1965, and any other active duty prior to January 1968. Send a copy of each of the veteran's separation documents with the request. All records and/or responses received should be associated with the claims file. 2. Verify, through the appropriate channels, the dates of the veteran's active duty (either Army or Navy) prior to July 1978 and obtain the veteran's service personnel records. 3. After ensuring that the requested actions are completed, re-adjudicate the claim on appeal. If the benefits sought on appeal remains denied, issue a supplemental statement of the case (SSOC) before the claims file is returned to the Board, if otherwise in order. The purpose of this REMAND is to afford due process; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time period. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). 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. 2007). ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs