Citation Nr: 1301824 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 07-10 715 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a bilateral leg disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 1981 to January 1993 and from April 2003 to April 2004. Additional active duty for training military reserve service has not been verified. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision by the Cleveland, Ohio, Regional Office (RO) of the Department of Veterans Affairs (VA). In January 2011, the Board remanded the issues of entitlement to service connection for a bilateral knee disability and for a bilateral leg disability for additional development. The requested development as to the bilateral leg disability claim has been substantially completed. The Veteran waived Agency of Original Jurisdiction (AOJ) review of evidence he provided in support of his claim in July 2012. The Board notes that an April 2012 rating decision granted entitlement to service connection for chronic right knee strain and for chronic left knee strain. The Veteran was notified of the determination at his address of record and that the decision was considered a full resolution of his appeal as to these matters. The issues of entitlement to service connection for bilateral hip disabilities and whether new and material evidence was received to reopen a service connection claim for a low back disability were referred to the RO by the Board in January 2011, but have not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over them, and they are again referred to the AOJ for appropriate action. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of this appeal has been obtained. 2. A present bilateral leg disability, other than the right and left knee disabilities for which service connection has been previously established, is not shown by the evidence of record. CONCLUSION OF LAW A bilateral leg disability was not incurred or aggravated as a result of active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (hereinafter "the Court") have been fulfilled by information provided to the Veteran in June 2006. That letter notified the Veteran of VA's responsibilities in obtaining information to assist in completing his claim and identified the Veteran's duties in obtaining information and evidence to substantiate his claim. (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006), Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006). The notice requirements pertinent to the issue remaining on appeal have been met and all identified and authorized records relevant to the matter have been requested or obtained. The available record includes service treatment records, VA treatment and examination reports, private treatment records, and the Veteran's statements in support of his claim. The Board finds that further attempts to obtain additional evidence would be futile. The Court has held that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that VA medical opinions obtained in this case are adequate as they are predicated on a substantial review of the record and medical findings and consider the Veteran's complaints and symptoms. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion concerning the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA law and regulations and to move forward with the claim would not cause any prejudice to the appellant. Service Connection Claim Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Active military, naval, or air service includes any period of active duty training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(21), (24) (West 2002); 38 C.F.R. § 3.6(a), (d) (2012); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). ACDUTRA is, generally, full-time duty in the Armed Forces performed by reserves for training purposes. 38 C.F.R. § 3.6(c)(1) (2011). The Court has held that regulations concerning presumptive service connection, the presumption of soundness, and the presumption of aggravation were inapplicable to claims based upon ACDUTRA service. See Smith v. Shinseki, 24 Vet. App. 40 (2010). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The Court has also held that medical evidence is required to demonstrate a relationship between a present disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person's observations would be competent. See Clyburn v. West, 12 Vet. App. 296 (1999). The Federal Circuit has held that without a disability there can be no entitlement to compensation. See Degmetich v. Brown, 104 F.3d 1328, 1331 (Fed. Cir. 1997); see also Brammer v. Derwinski, 3 Vet. App. 223, 225(1992) ("Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. . . . In the absence of proof of present disability there can be no valid claim"). Lay evidence is competent to establish observable symptomatology; however, VA may make credibility determinations as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr, 21 Vet. App. 303. In Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit held that whether lay evidence is competent and sufficient in a particular case is an issue of fact and that lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. In Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006), the Federal Circuit held that the lay evidence presented by a veteran concerning his continuity of symptoms after service may generally be considered credible and ultimately competent, regardless of a lack of contemporaneous medical evidence. The Federal Circuit has also recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102 (2012). In this case, service treatment records show the Veteran was treated in service including for a left ankle sprain, bilateral knee pain, and low back pain. A July 2003 report noted he complained of knee pain and a diagnosis of minor tendonitis was provided. A March 2004 report found the Veteran's knee pain was incurred in the line of duty. Private treatment records dated in November 2000 noted the Veteran complained of left ankle numbness. The diagnoses included lumbar disc disease with radiculopathy and left knee strain. VA records show that service connection was denied for lumbosacral herniated nucleus pulposus with radiculopathy (claimed as a left leg condition). The Veteran submitted a notice a disagreement from the decision, but did not perfect his appeal subsequent to the issuance of a May 2004 statement of the case. In statements in support of his appeal the Veteran asserted that service connection was warranted for damage to his "legs/knees" as a result of military service. In his March 2007 VA Form 9 he also noted hip and back disorders as a result of misalignment of his hip and straining the muscles in his legs, hip, and lower back. VA examination in February 2011 included a summary of the Veteran's medical history and provided diagnoses of bilateral chronic knee strain and left hip, os acetabuli, and femoro-acetabular impingement. It was noted that there was no tendonitis on examination. An April 2006 rating decision granted entitlement to service connection for chronic right knee strain and for chronic left knee strain. Separate ten percent disability ratings were assigned. VA examination in May 2012 included a diagnosis of bilateral knee strain, but no other diagnosis of a lower leg disability. The examiner noted that the Veteran had complained of right calf pain in April 2011, but that it had resolved after physical therapy. Based upon the evidence of record, the Board finds that a present bilateral leg disability, other than the right and left knee disabilities for which service connection has been previously established, is not shown by the evidence of record. The opinion of the May 2012 VA examiner is persuasive. The examiner's opinion is shown to have been based upon an examination and a thorough review of the evidence of record. The examiner is shown to have adequately considered the Veteran's lay statements, but to have, in essence, rejected his reports as not credible to the extent they indicated any additional leg disability. But see Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (Court noted that it appeared that the medical examiner impermissibly ignored the appellant's lay assertions that he sustained an injury during service). Therefore, the Board finds that entitlement to service connection for a bilateral leg disability is not warranted. When all the evidence is assembled VA is then 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. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The preponderance of the evidence in this case is against the claim. ORDER Entitlement to service connection for a bilateral leg disability is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs