Citation Nr: 1307341 Decision Date: 03/04/13 Archive Date: 03/11/13 DOCKET NO. 08-29 428 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a left leg disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD Kristi L. Gunn, Counsel INTRODUCTION The Veteran served on active duty from May 1969 to November 1970. He is the recipient of the Purple Heart medal and Combat Infantrymen badge. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In January 2011, the Veteran testified at a travel board hearing before the undersigned Acting Veterans Law Judge. A copy of the transcript is of record. In February 2011 and July 2012, the Board remanded the claim for additional development. The case has been returned to the Board for further appellate review. The Board has reviewed the contents of the Veteran's Virtual VA file and found no medical or other evidence pertinent to this appeal that is not in her claims file. 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. All relevant evidence necessary for an equitable disposition of the Veteran's appeal has been obtained. 2. The Veteran was involved in a mine explosion while engaging in combat with the enemy. 3. The competent, credible, and probative evidence of record does not demonstrate a nexus between the conceded mine explosion and the current left leg disability. CONCLUSION OF LAW A left leg disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify & Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). In this case, the Board finds that the VCAA notice requirements have been satisfied by the October 2007 and December 2007 letters. In the letters, VA informed the Veteran that in order to substantiate a claim for service connection the evidence needed to show a current disability, a disease or injury in service, and evidence of a nexus between the post-service disability and the disease or injury in service, which was usually shown by medical records or medical opinions. In addition to the foregoing analysis, to whatever extent the decision of the Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006), requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date, the Board finds no prejudice to the Veteran in proceeding with the present decision. Since the claim is being denied, any such effective date questions are moot. The Veteran has had ample opportunities to meaningfully participate in the adjudicative claims process. Any error or deficiency in this regard is harmless, and not prejudicial. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has obtained the Veteran's service treatment records and VA outpatient treatment records. The Veteran was also provided a VA examination in connection with his service connection claim. The examiner reviewed the Veteran's medical history, recorded pertinent examination findings, and provided a conclusion with supportive rationale. The Board finds that the VA examination report is probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). 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. For these reasons, 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). II. Decision The Veteran contends that his current left leg disability is related to his active military service. At the January 2011 Board hearing, the Veteran testified that during service, he was involved in a mine accident in Vietnam. He explained that while driving an armored personnel carrier (APC), he rode on top of an explosive mine. The explosion caused road rash on his left leg, left arm, as well as injuries to his knee. See the Board hearing transcript, p. 11. He asserts that service connection is warranted for his left leg disability. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. Service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The chronicity provision of 38 C.F.R. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the Court's case law, lay observation is competent. Savage v. Gober, 10 Vet. App. 488, 498 (1997). In addition, if a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b). If the record demonstrates that the Veteran engaged in combat with enemy forces, then by statute VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and to that end, shall resolve every reasonable doubt in favor of the Veteran. Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As previously noted, the Veteran is asserting that his left leg disability results from a combat-related injury. His DD Form 214 shows that his military occupational specialty (MOS) was an APC Driver, and he is recipient of the Combat Infantrymen Badge, along with other medals and awards. Because the Board has found that the Veteran engaged in combat, the Board accepts as credible the Veteran's assertion of a left leg injury in service as consistent with the duties and circumstances of his service. See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). It is therefore conceded that the Veteran injured his left leg in service due to a mine explosion accident in service. The question for consideration is whether any current left leg disability is casually related to such in-service explosion accident. The Veteran's service treatment records reflect no complaints, treatment, or diagnosis of a left leg injury. The Board acknowledges a February 1970 service treatment note, which reflects abrasions to the left leg, but it was specifically noted that there were no injuries associated with the left leg. Additionally, x-ray testing was negative. Upon discharge from service, clinical evaluation of the Veteran's lower extremities was normal, as reflected on the November 1970 report of medical examination at separation. After discharge from service, post service treatment records reflect complaints of left leg swelling. In a March 2009 VA outpatient treatment note, the Veteran reported swelling in the lower extremities. In April 2011, the Veteran was afforded a VA examination to determine the etiology of his left leg disability. The Veteran reported the onset of his left leg disability in February 1970 after he was exposed to a mine explosion while stationed in Vietnam. The explosion caused road rash on his left leg and since that time, he has endured left leg pain. After physical examination testing, the VA examiner diagnosed the Veteran with chondromalacia of the left knee and small bone density with edema, left lateral malleous. After conducting the examination, eliciting a thorough history from the Veteran, and reviewing the claims file, the VA examiner opined that the Veteran's current left knee disability is less likely as not caused by or a result of the Veteran's military service and any alleged injuries during his period of service. The VA examiner noted that the service treatment records reported abrasions to the left arm and left leg with negative x-ray findings. Additionally, x-rays performed in 2007 were negative for any left knee or left leg problems. The VA examiner also concluded that the Veteran's current left ankle disability is as least as likely as not caused by or a result of the Veteran's military service and any alleged injuries during his period of service. The VA examiner explained that it is difficult to determine but there is a possibility that the area of the lateral malleous on the left ankle sustained some mild type of injury as it is larger than the right and slightly edematous, but has full range of motion. As the April 2011 VA examiner provided two different opinions for the Veteran's claimed disability, the Board remanded the claim in July 2012 for a subsequent examination regarding the etiology of the Veteran's left leg disability. In October 2012, the Veteran underwent a second VA examination for his left leg disability. He again reported his involvement in a mine accident in Vietnam, which caused his current left leg disability. After physical examination testing, the VA examiner diagnosed the Veteran with chondromalcia of the left knee with abrasions of the left leg. Based on the results from the physical examination and review of the claims file, the VA examiner concluded that the Veteran's claimed left leg disability was less likely than not incurred in or caused by the claimed in-service injury. The examiner noted that the service treatment records reported abrasions to the left leg with negative x-ray findings in 1970. There was no mention of any left knee problems and the Veteran admitted to the examiner of not having had any medical follow-up after service. Additionally, x-rays performed in 2012 were negative for any left knee joint pathology. Thus, the VA examiner concluded that there is no relationship between the noted in-service leg abrasions in 1970 and his knee pain in 2012. The VA examiner explained that the decrease of range of motion of the left knee and leg is most likely related to age and occupation over a 42 year period. The Board acknowledges the April 2011 VA opinion; however, in weighing the probative value of such private opinions, the Board finds that it is less probative than the highly probative October 2012 VA opinion. As mentioned above, the VA examiner concluded that the Veteran's left ankle disability is as least as likely as not caused by or a result of the Veteran's military service because there is a "possibility" that the area of the lateral malleous on the left ankle sustained some type of mild injury. The Court has held on numerous occasions that speculation is not legally sufficient to establish service connection. See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). An award of service connection must be based on reliable competent medical evidence and conjectural or speculative opinions as to some remote possibility of such relationship are insufficient. See 38 C.F.R. § 3.102 (2012); see also Morris v. West, 13 Vet. App. 94, 97 (1999) (diagnosis that appellant was "possibly" suffering from schizophrenia deemed speculative); Bloom v. West, 12 Vet. App. 185, 186-87 (1999) (treating physician's opinion that veteran's time as a prisoner of war "could" have precipitated the initial development of his lung condition found too speculative to be sufficient medical nexus evidence); Davis v. West, 13 Vet. App. 178, 185 (1999) (any medical nexus between in-service radiation exposure and fatal lung cancer years later was speculative at best, even where one physician opined that it was probable that lung cancer was related to service radiation exposure). There is no contrary medical opinion or medical evidence in the record, and neither the Veteran nor his representative has identified or alluded to such medical evidence or opinion. The October 2012 VA examination report clearly states that the Veteran's claims file was available and reviewed. The VA examiner reviewed the Veteran's subjective history, clinical findings, and rendered an opinion with supportive rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Thus, the Board considers the October 2012 VA opinion adequate, and service connection for a left leg disability must be denied. The Veteran is not competent and with the appropriate medical training and expertise to offer an opinion on a medical matter, including the etiology of his left leg disability. See Bostain v. West, 11 Vet. App. 124, 127 (1998); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). The question of causation, in this case, involves a complex medical issue that the Veteran is not competent to address. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As a result, the Board finds there is no competent, credible, and probative evidence of a nexus between an in-service incurrence, to include the conceded in-service mining explosion and the current left leg disability, thus service connection must be denied. For the reasons stated above, the Board finds that a preponderance of the evidence is against the claim of entitlement to service connection for a left leg disability. See Gilbert, 1 Vet. App. at 55 ORDER Entitlement to service connection for a left leg disability is denied. ____________________________________________ ROBERT E. O'BRIEN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs