Citation Nr: 1104772 Decision Date: 02/07/11 Archive Date: 02/14/11 DOCKET NO. 07-27 532 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a left lower leg disability manifested by pain. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Barstow, Associate Counsel INTRODUCTION The Veteran had active military service from October 1974 to September 1978 and from October 2001 to September 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2007 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma denied service connection for a left lower leg disability manifested by pain. The Board notes that the Veteran requested a Travel Board hearing before a Veterans Law Judge, but withdrew his request for a hearing through written correspondence dated in May 2009. The Veteran having withdrawn his hearing request, the Board will proceed to adjudicate the case based on the evidence of record. See 38 C.F.R. § 20.704 (e) (2010). In a January 2011 brief, the Veteran's representative raised the issue of service connection for a back disorder. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The Board observes that, in raising the issue of service connection for a back disorder, the Veteran's representative argues that the Veteran's left lower leg pain is secondary to a back disorder and that the issues are inextricably intertwined. Notwithstanding the representative's contentions, the Board will still proceed to adjudicate the current claim, because the current issue was raised and adjudicated on a direct basis, not as a secondary basis. FINDING OF FACT At no time during the current appeal has a left lower leg disability manifested by pain been diagnosed. CONCLUSION OF LAW A left lower leg disorder was not incurred or aggravated in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's 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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his 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 VCAA 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. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, a pre-decisional letter dated in July 2006 complied with VA's duty to notify the Veteran with regards to the claim of service connection for left lower leg pain. Specifically, this letter apprised the Veteran of what the evidence must show to establish entitlement to the benefit, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. It also notified the Veteran of the criteria for assigning a disability rating and an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Regarding VA's duty to assist, the RO obtained the Veteran's service treatment records (STRs) and post-service medical records. The Board observes that, in October 2006, the National Personnel Records Center (NPRC) reported that they did not have the Veteran's STRs; however, the Veteran himself submitted copies of his STRs. VA has no duty to inform or assist that was unmet. The Veteran has not identified any additional pertinent medical records, including STRs, which have not been obtained and associated with the claims folder. The Board recognizes that the Veteran has not been afforded a VA examination in connection with his claim. The Board finds that a medical opinion on the question of service connection for a left lower leg disability manifested by pain is not required because opinions are only necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains: 1) competent evidence of diagnosed disability or symptoms of disability, 2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and 3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); see McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, as described in detail below, there is insufficient evidence establishing that at any time during the current appeal the Veteran has had a current disability that may be associated with his military service. Consequently, given the standard of the regulation, the Board finds that VA did not have a duty to assist that was unmet. II. Analysis The Veteran contends that he has left lower leg pain that is related to his military service. Specifically, he reports that a lid from a CNU-446 container, weighing over 50 pounds, fell on his legs during service when he was inspecting BSU-50 fins. Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, 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 (1995). The Veteran's STRs reflect complaints of left leg pain. In July 2002, the Veteran was treated for lower leg pain. In August 2002, the diagnosis was possible extertional syndrome versus "shin splints." A bone scan in August 2002 was unremarkable except for Osgood-Schlatter's on the right side, but no left lower leg disability was diagnosed at that time. The Veteran's STRs do not show that he reported a lid falling on his legs, nor is there a showing of a chronic left lower leg disability. According to post-service medical records, the Veteran complained of left lower leg pain in December 2004. An ultrasound of the Veteran's lower extremities in January 2005 showed mild intimal thickening bilaterally. Both legs exhibited triphasic waveforms throughout. A record dated in March 2005 shows that the Veteran's leg pain had resolved. In a letter received in October 2006, his private physician, R.R., M.D., reported that the Veteran complained of a left lower leg sprain. The letter indicates that, in looking at the Veteran's leg, there was no discoloration, rash, or any problem of that sort. Dr. R.R. further indicates that an MRI revealed a lot of central bulging and compressing moderately on the spine, which could have been the cause of the Veteran's leg pain. A November 2006 record shows that no significant peripheral arterial disease was shown on exam. In sum, according to post-service medical records, no disability of the left lower leg has been diagnosed. Although the records do show complaints of pain, no etiology or underlying disability has been shown. Here, based on a review of the evidence, the Board finds that service connection for a left lower leg disability manifested by pain is not warranted. Although the Veteran's STRs from his most recent period of service show complaints of leg pain and a diagnosis of possible exertional syndrome versus "shin splints," there is no indication that the Veteran has been diagnosed with any disabilities post-service during the current appeal. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2010). In this case, no chronic disability has been shown. Even though the Veteran has continued to report left lower leg pain post-service, there is no competent medical evidence of any underlying disability to account of his leg pain. The Board notes that pain alone, without a diagnosed or identifiable underlying malady or condition, does not constitute a disability for which service connection may be granted. Sanchez-Benitez, 13 Vet. App. 282, 285 (1999), aff'd, 259 F.3d. 1356 (Fed. Cir. 2001). Additionally, the existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. § 1110, 1131; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In other words, the evidence must show that the Veteran currently has the disability for which benefits are being claimed. Here, there is no competent medical evidence reflective of a left lower leg disorder at any time during the current appeal. In this regard, the Board observes that even the Veteran himself acknowledges that no disorder has been definitively diagnosed. In this February 2007 notice of disagreement, the Veteran provided a history of his complaints and the various tests done in an attempt to identify the underlying problem. The Veteran correctly reports that tests performed did not show any underlying disorder to account for his complaints. The Veteran is competent to report about having left lower leg symptoms. Competent testimony is limited to that which the witness has actually observed, and is within the realm of his personal knowledge; such knowledge comes to a witness through use of his senses-that which is heard, felt, seen, smelled or tasted. Layno v. Brown, 6 Vet. App. 465 (1994). However, notwithstanding the Veteran's credible and competent contentions, the evidence of record does not show that at any time during the current appeal he has any diagnosed disorder of the left lower leg for which service connection may be granted. The Board acknowledges the Veteran's belief that he has left lower leg pain related to his military service. However, there is no evidence of record showing that the Veteran has the specialized medical education, training, and experience necessary to render competent medical opinion regarding the diagnosis of a left lower leg disorder. Espiritu v. Derwinski, 2 Vet. App. 492 (1992); 38 C.F.R. § 3.159(a) (1) (2010). Consequently, the Veteran's own assertions as to diagnosis and etiology of a disability have no probative value. Consequently, and based on this evidentiary posture, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for left lower leg pain. At no time since the Veteran filed his claim for service connection for left lower leg pain in June 2006 has any chronic left lower leg disorder been diagnosed. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (in which the Court held that, in the absence of proof of a present disability, there can be no valid claim). See also McClain v. Nicholson, 21 Vet. App. 319 (2007) (which stipulates that a service connection claim may be granted if a diagnosis of a chronic disability was made during the pendency of the appeal, even if the most recent medical evidence suggests that the disability resolved). Accordingly, the preponderance of the evidence is against the Veteran's claim. The benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to service connection for a left lower leg disability manifested by pain is denied. See 38 U.S.C.A §5107 (West 2002 & Supp. 2010). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for a left lower leg disability manifested by pain is denied. ____________________________________________ THERESA M. CATINO Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs