Citation Nr: 0814616	
Decision Date: 05/02/08    Archive Date: 05/12/08

DOCKET NO.  07-12 468	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los 
Angeles, California


THE ISSUES

1.  Entitlement to service connection for left leg 
disability.  

2.  Entitlement to service connection for left knee 
disability.  

3.  Entitlement to service connection for left foot 
disability.  


REPRESENTATION

Appellant represented by:	AMVETS


WITNESS AT HEARING ON APPEAL

Appellant




ATTORNEY FOR THE BOARD

T.S. Willie, Associate Counsel


INTRODUCTION

The veteran served on active duty from October 1954 to 
September 1956. 

This case initially comes before the Board of Veterans' 
Appeals (Board) on appeal of a January 2006 rating decision 
rendered by the Los Angeles, California, Regional Office (RO) 
of the Department of Veterans Affairs (VA).  

The veteran testified before the undersigned Veterans Law 
Judge in January 2008.  A transcript of the hearing is of 
record.  According to the veteran and the representative, 
AMVETS holds the power of attorney.


FINDINGS OF FACT

1.  There is no current competent evidence of record of a 
left leg disability.  

2.  Left leg disability is not attributable to service.  

3.  Left knee disability did not manifest in service.  

4.  Left knee disability is not attributable to service. 

5.  Left foot disability did not manifest in service.  

6.  Left foot disability is not attributable to service.



CONCLUSIONS OF LAW

1.  Left leg disability was not incurred in or aggravated by 
active service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 
C.F.R. § 3.303 (2007).

2.  Left knee disability was not incurred in or aggravated by 
active service and arthritis may not be presumed to have been 
incurred therein.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 
1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 
(2007).

3.  Left foot disability was not incurred in or aggravated by 
active service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 
C.F.R. § 3.303 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

					VCAA

The Veterans Claims Assistance Act of 2000 (VCAA), codified 
in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), 
and the pertinent implementing regulation, codified at 38 
C.F.R. § 3.159 (2006), provide that VA will assist a claimant 
in obtaining evidence necessary to substantiate a claim but 
is not required to provide assistance to a claimant if there 
is no reasonable possibility that such assistance would aid 
in substantiating the claim.  The VCAA also require VA to 
notify the claimant and the claimant's representative, if 
any, of any information, and any medical or lay evidence, not 
previously provided to the Secretary that is necessary to 
substantiate the claim.  As part of the notice, VA is to 
specifically inform the claimant and the claimant's 
representative, if any, of which portion, if any, of the 
evidence is to be provided by the claimant and which part, if 
any, VA will attempt to obtain on behalf of the claimant.  In 
addition, VA must also request that the claimant provide any 
evidence in the claimant's possession that pertains to the 
claim.

The Board also notes that the United States Court of Appeals 
for Veterans Claims (Court) has held that the plain language 
of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to 
a claimant pursuant to the VCAA be provided "at the time" 
that, or "immediately after," VA receives a complete or 
substantially complete application for VA-administered 
benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 119 
(2004).  The Court further held that VA failed to demonstrate 
that, "lack of such a pre-AOJ-decision notice was not 
prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as 
amended by the Veterans Benefits Act of 2002, Pub. L. No. 
107-330, § 401, 116 Stat. 2820, 2832) (providing that '[i]n 
making the determinations under [section 7261(a)], the Court 
shall . . . take due account of the rule of prejudicial 
error')."  Id. at 121.

During the pendency of this appeal, on March 3, 2006, the 
Court issued a decision in the consolidated appeal of 
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which 
held that the VCAA notice requirements of 38 U.S.C.A. § 
5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements 
of a service connection claim. Those five elements include: 
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.  The Court held that upon receipt of an 
application for a service-connection claim, 38 U.S.C.A. § 
5103(a) and 38 C.F.R. § 3.159(b) require VA to review the 
information and the evidence presented with the claim and to 
provide the claimant with notice of what information and 
evidence not previously provided, if any, will assist in 
substantiating or is necessary to substantiate the elements 
of the claim as reasonably contemplated by the application.  
Id. at 486.

The record reflects that the originating agency provided the 
veteran with the notice required under the VCAA by letter 
dated in October 2005.  While the letter provided adequate 
notice with respect to the evidence necessary to establish 
entitlement to service connection, it did not provide notice 
of the type of evidence necessary to establish a disability 
rating or effective date for the disability on appeal.  See 
Dingess, supra.  Although the veteran received inadequate 
preadjudicatory notice, and that error is presumed 
prejudicial, the record reflects that he was provided with a 
meaningful opportunity such that the preadjudicatory notice 
error did not affect the essential fairness of the 
adjudication now on appeal. 

VA must also make reasonable efforts to assist the claimant 
in obtaining evidence necessary to substantiate the claim for 
the benefits sought, unless no reasonable possibility exists 
that such assistance would aid in substantiating the claim. 
38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2007).  
Available service records and pertinent post service medical 
records have been obtained.  The veteran has not identified 
any outstanding evidence that could be obtained to 
substantiate the claim.  The Board is also unaware of any 
such evidence.  

The Board acknowledges that the veteran has not been afforded 
a VA examination in the present case.  However, for the 
reasons explained below, the Board finds that a VA 
examination is not necessary in order to decide the veteran's 
claim.  Because the veteran has failed to show a left leg 
disability, and that his left knee and left foot disabilities 
are service related, a VA examination is not warranted.  

For the foregoing reasons, the Board concludes that all 
reasonable efforts were made by VA to obtain evidence 
necessary to substantiate the claim.  The evidence of record 
provides sufficient information to adequately evaluate the 
claim, and the Board is not aware of the existence of any 
additional relevant evidence which has not been obtained.  No 
further assistance to the veteran with the development of 
evidence is required.  38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 
3.159(d).  

The Board additionally notes that a portion of the veteran's 
service medical records were damaged in a fire-related 
incident and are moldy or brittle.  The United States Court 
of Appeals for Veterans Claims (Court) has held that in cases 
where records once in the hands of the government are lost, 
the Board has a heightened obligation to explain its findings 
and conclusions and to consider carefully the benefit-of-the-
doubt rule where applicable.  See O'Hare v. Derwinski, 1 Vet. 
App. 365, 367 (1991).  Because of the damage to the veteran's 
records, the analysis below has been undertaken with this 
heightened duty in mind.  The case law does not, however, 
lower the legal standard for proving a claim for service 
connection but rather increases the Board's obligation to 
evaluate and discuss in its decision all of the evidence that 
may be favorable to the claimant.  See Russo v. Brown, 9 Vet. 
App. 46 (1996).

Accordingly, the Board will address the merits of the claim. 

					Factual Findings

The veteran served on active duty from October 1954 to 
September 1956. 
Service medical records show complaints of right thigh pain 
and cramping and a notation of right leg tenderness.  At 
separation, clinical evaluations of the lower extremities and 
feet were normal.  A post service medical notation, dated 
within a year of separation, indicated post operative 
saphenous ligation and continued complaints of pain in the 
left leg.  

In a March 1994 VA compensation and pension examination, the 
veteran complained of chronic leg blisters secondary to mild 
trauma.  Examination showed no varicose veins.  The veteran 
was diagnosed with thin friable skin on the legs bilaterally.  
Examination of the feet disclosed no pathology.

Post service medical records show that the veteran complained 
of left knee pain throughout 1999.  An April 1999 outpatient 
visit noted left knee pain on and off for several years.  No 
recent injury was noted.  Bony deformity with bulging of the 
medial aspect of the knee with local tenderness to pressure 
and no effusion was noted.  It was also noted that the 
patella was within normal limits and there was no limited 
range of motion of the left knee.  

In January 2003, the veteran reported that a large tree 
branch fell on his leg.  He reported pain, swelling and the 
sensation of a foreign body in his leg.  A diagnosis of 
foreign body in LL tibia s/p exploration and removal was 
given.  

Outpatient treatment records dated in June 2005 shows that 
the veteran was seen for left knee pain.  During this visit, 
the veteran reported a knee injury in service.  It was noted 
that the veteran has developed arthralgia.  It was also noted 
that the veteran reported knee deformity resulting in 
slightly abnormal gait with valgus deviation of the foot.  A 
June 2005 radiology reported noted normal left knee.  It was 
also reported in June 2005 that the veteran had a history of 
left knee injury with associated traumatic arthritis.  
Multiple views of the veteran's left knee did not demonstrate 
any inflammatory, arthritic, traumatic or neoplastic change.  

In a September 2005 outpatient treatment visit, the veteran 
complained of painful callus and reported occasional left 
knee pain when walking on "soft ground" and "cloudy 
weather" for eight years.  The veteran mentioned trauma to 
his knee during service.  Knee arthralgia was noted.  An 
assessment of onychomycosis, callus,  and tinea pedis was 
noted.  Hyperkeratosis sub 5th, sub 1st and medial 1st IPJ left 
foot were also noted.  A March 2006 treatment record also 
noted onychomycosis, callus,  and tinea pedis.  

In a September 2007 radiology report it was noted that x rays 
of the veteran's left knee in the past have been within 
normal limits.  A September 2007 radiology report noted 
findings of AP and 30 degree flexion lateral views of the 
left knee.  The osseous structures were unremarkable without 
evidence of fracture, dislocation or subluxation.  Bone 
mineralization was normal and degenerative disease minimal.  
An impression of proximal pattelar osteophyte, otherwise 
unremarkable examination was given.  

        Legal Criteria

Service connection may be granted 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 the line of duty, in the  
active military, naval, or air service.  38 U.S.C.A. §§ 1110, 
1131; 38 C.F.R. § 3.303(a).  Service connection may also be 
granted for any disease initially diagnosed after discharge, 
when all the evidence, including that pertinent to service, 
establishes that the disease was incurred in service.  38 
C.F.R. § 3.303(d).

A claim for service connection generally requires competent 
evidence of a current disability; proof as to incurrence or 
aggravation of a disease or injury in service, as provided by 
either lay or medical evidence, as the situation dictates; 
and competent evidence as to a nexus between the in-service 
injury or disease and the current disability.  Cohen v. 
Brown, 10 Vet. App. 128, 137 (1997); Layno v. Brown, 6 Vet. 
App. 465 (1995).  

That a condition or injury occurred in service alone is not 
enough; there must be disability resulting from that 
condition or injury.  See Rabideau v. Derwinski, 2 Vet. App. 
141, 143 (1992); Brammer v. Derwinski, 3 Vet. App. 223 
(1992).

Except as provided in 38 C.F.R. § 3.300(c), disability which 
is proximately due to or the result of a service-connected 
disease or injury shall be service connected.  38 C.F.R. § 
3.310.  This includes any increase in disability 
(aggravation).  The Court has also held that service 
connection can be granted for disability that is aggravated 
by a service-connected disability and that compensation can 
be paid for any additional impairment resulting from the 
service- connected disease or injury.  Allen v. Brown, 7 Vet. 
App. 439 (1995).  When aggravation of a veteran's non-
service-connected condition is proximately due to or the 
result of a service-connected condition, such veteran shall 
be compensated for the degree of disability over and above 
the degree of disability existing prior to the aggravation.  
Allen, supra.  The Board notes that 38 C.F.R. § 3.310 was 
amended on September 7, 2006.  The amendment is to be applied 
prospectively; it is not for application in the present 
claim.  

When there is an approximate balance of positive and negative 
evidence regarding the merits of an issue material to the 
determination of the matter, the benefit of the doubt in 
resolving each such issue shall be given to the claimant.  38  
U.S.C.A. § 5107(b) (West 2002).  

					 Analysis 

Initially, the Board notes that the provisions of 38 U.S.C.A. 
§ 1154(b) do not apply, as it has not been alleged that the 
claimed disabilities were incurred while engaging in combat.  

The veteran is seeking service connection for left leg, leg 
knee and leg foot disabilities, which he believes developed 
as a consequence of service.  After careful review of the 
record, the Board finds that the preponderance of the 
evidence is against the veteran's claims.  

Although the veteran seeks service connection for a left leg 
disability, there is no competent evidence of a left leg 
disability.  For veterans, basic entitlement to disability 
compensation derives from two statutes, 38 C.F.R. §§ 1110 and 
1131- - the former relating to wartime disability 
compensation and the latter relating to peacetime disability 
compensation.  Both statutes provide for compensation, 
beginning with the words: "For disability resulting from 
personal injury suffered of disease contracted in the line of 
duty. . . ." 38 U.S.C. §§  1110, 1131 (2007).  Thus, in 
order for a veteran to qualify for entitlement to 
compensation under those statutes, the veteran must prove the 
existence of a disability, and one that has resulted from a 
disease or injury that occurred in the line of duty.  
Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). 

At this time, there is no competent evidence that the veteran 
has a left leg disability.  
Although the record shows a post service medical notation, 
dated within a year of separation, which indicated post 
operative saphenous ligation and continued complaints of pain 
in the left leg, there is no evidence of a current left leg 
disability.  At most, outpatient treatment records show that 
in March 1994 the veteran was diagnosed with thin friable 
skin on the legs bilaterally and in January 2003 the veteran 
reported that a large tree branch fell on his leg.  He 
reported pain, swelling and the sensation of a foreign body 
in his leg.  A diagnosis of foreign body in LL tibia s/p 
exploration and removal was given.  No leg edema was noted in 
September 2007.  

The Board has considered the various statements made by the 
veteran about his left leg.  To the extent that the veteran 
asserts that he has a left leg disability, post service 
records fail to show such a disability.  In the absence of a 
current disability, disease or injury service connection for 
a left leg disability may not be granted.  

The veteran also seeks service connection for left knee and 
left foot disabilities.  The veteran has claimed that his 
left leg disability has caused problems for his left knee and 
left foot.  As noted above, except as provided in 38 C.F.R. § 
3.300(c), a disability which is proximately due to or the 
result of a service-connected disease or injury shall be 
service connected.  38 C.F.R. § 3.310.  However, because the 
veteran has not shown a left leg disability and has been 
denied service connection as a result, the claims for service 
connection for left knee and left foot disabilities as 
secondary to a left leg disability are denied.  

The Board also finds that service connection for left knee 
and left foot disabilities are not warranted on a direct 
basis.  Although the record shows left knee and left foot 
disabilities, there is no evidence linking the disabilities 
to service.  Regarding the left knee, outpatient records show 
complaints of left knee pain and a notation of arthralgia.  
Regarding the left foot, outpatient treatment records show an 
assessment of onychomycosis, callus, and tinea pedis.  
Outpatient treatment records also show hyperkeratosis sub 
5th, sub 1st and medial 1st IPJ left foot.  

While the evidence of record shows that the veteran has left 
knee and left foot disabilities, there is no competent 
evidence of record that establishes a nexus, or link, between 
the disabilities and the veteran's military service.  As 
noted, the veteran's service medical records did not reveal 
any complaints, findings or diagnoses of left knee or left 
foot disabilities.  The Board recognizes that in June 2005, 
during an outpatient treatment visit, the veteran complained 
of left knee pain and reported a knee injury in service.  
However, during his hearing, the veteran testified that this 
injury occurred in 1956.  Post service medical records show 
the first notation of left knee complaints in April 1999, 
about 43 years after the alleged injury.  The Board also 
notes that in the March 1994 VA compensation and pension 
examination, the veteran did not complain of left knee pain 
or left foot pain.
No pathology of the feet was also noted during this 
examination.  There is a remarkable lack of corrobative 
evidence within years of separation from service.  Although 
symptoms, not treatment, are the essence of any evidence of 
continuity of symptomatology, in a merits context the lack of 
evidence of treatment may bear on the credibility of the 
evidence of continuity.  See Savage v. Gober, 10 Vet. App. 
488 (1997).  In short, his remote post-service report of an 
in-service injury is not credible.  Far more probative is his 
statement, in 1999, that he had had pain for several years 
(rather than since service).

The preponderance of the evidence is against the claims for 
service connection.  Because there is no approximate balance 
of positive and negative evidence, the rule affording the 
veteran the benefit of the doubt does not apply.  38 U.S.C.A. 
§ 5107(b) (West 2002).  See Dela Cruz v. Principi, 15 Vet. 
App. 143 (2001).  See also 38 C.F.R. § 3.102 (2007).  


ORDER

Service connection for left leg disability is denied.  

Service connection for left knee disability is denied.  

Service connection for left foot disability is denied.  


____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs