Citation Nr: 1310447 Decision Date: 03/29/13 Archive Date: 04/09/13 DOCKET NO. 12-19 514 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to a bilateral leg disorder, to include residuals of blood poisoning. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from June 10, 1957 to July 23, 1957. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a rating decision that was issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In February 2013 the Veteran testified during a Board video conference hearing before the undersigned Veterans Law Judge. The transcript has been associated with the Veteran's claims file. As a final preliminary matter, the Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the appellant's claim. A review of the documents in such file reveals that they contain VA treatment records relevant to the issue on appeal. 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). FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has a bilateral leg disorder, to include residuals of blood poisoning, due to a disease or injury in service. CONCLUSION OF LAW The criteria for establishing service connection for a bilateral leg disorder, to include residuals of blood poisoning, have not been met. 38 U.S.C.A. §§ 1101, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify a 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, VA will attempt to obtain. 38 C.F.R. § 3.159(b). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, in a September 2011 letter, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim for an increased rating, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter advised the Veteran to submit evidence from medical providers and statements from employers and others who could describe their observations of his disability level and provided examples of pertinent medical and lay evidence that the Veteran may submit (or ask the Secretary to obtain) relevant to establishing entitlement to a disability evaluation. The issue was last adjudicated in July 2012. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the appeal. Pertinent medical evidence associated with the claims file consists of service treatment records, VA treatment records, the report of a VA examination, and a transcript of the Veteran's hearing testimony. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument. Thus, the Veteran was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Relevant Laws and Regulations Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in doing so, the Board may accept one medical opinion and reject others. Evans v. West, 12 Vet. App. 22, 30 (1998). The Board cannot make its own independent medical determination, and it must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. Id.; Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, 6 Vet. App. at 469 (distinguishing between competency ["a legal concept determining whether testimony may be heard and considered"] and credibility ["a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"]). It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance in the 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); 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board has reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Analysis The Veteran asserts that he has a condition of the bilateral lower legs that was first incurred during his training in the Marines. At his February 2013 Board hearing, the Veteran explained that during basic training his ankles began to swell to the point of not being able to lace up his boots, and he noticed red streaks running up from his ankles. He was told to stay off his feet and to soak them in a whirlpool. He stated that although the swelling went down after a week or two, he later had continued problems with swelling in his ankles, although he has never received an official diagnosis of the cause of this swelling. He reported that he had been treated for foot pain in the past by his private physician and was told to wear special rubber-soled shoes. He indicated that he had never had a diagnosis, and the doctors did not seem to know what to do. He had been given "water pills" in the past without much effect. The Veteran's wife also testified that in the past 35 years that she has known the Veteran, he has always had issues with his legs and that he is unable to walk very fast or very far. The Veteran's service treatment records show that in June 1957 he reported having painful and swollen ankles for "about 2 weeks." He was diagnosed with tenosynovitis and prescribed bedrest with elevation of the feet and hot packs. On the Veteran's July 1957 discharge examination report, his lower extremities are noted as "normal." He was discharged from service for pathology unrelated to the legs. The Veteran's VA treatment records show that in July 2003 he was treated for shingles and found to have neuropathy with shingles and edema of the legs. In November 2005 the Veteran complained of edema in both legs and reported that he had been given support stockings three weeks previous, but that they had not helped. He also reported having varicose veins in both legs for many years. The Veteran was found to have pretibial "1+ edema" in the bilateral legs. The Veteran has provided no other evidence of any medical treatment for a condition related to swelling of the lower extremities. In June 2012 the Veteran was afforded a VA examination of the bilateral ankles. The examiner reviewed the claims file and noted that in 1957 the Veteran had developed swelling in the ankles. The examiner performed range of motion testing and found no objective evidence of painful motion, normal dorsiflexion range of motion, and some limitation in ankle plantar flexion. The examiner attributed the Veteran's restricted ankle plantar flexion to "age related muscle tightening." The examiner noted normal muscle strength and functionality in the lower extremities and no sign of other ankle deformity. X-ray imaging was performed, which revealed a heel spur unrelated to the condition being claimed. He noted that the Veteran used a cane, walker, and scooter as assistive devices due to chronic obstructive pulmonary disease with ankle pain, and commented that the Veteran's ability to work was restricted by his chronic obstructive pulmonary disease and not by an ankle condition The examiner found no clinical findings relating to the ankle that would restrict the Veteran other than his complaints of pain. The examiner noted that the Veteran did have swelling pretibial bilaterally. He ultimately opined that the Veteran's current complaints of swelling and pain were less likely than not related to his tenosynovitis experienced in service, because he found no findings of tenosynovitis currently, and the swelling noted was pretibial, not in the ankles as had occurred in service. In light of the foregoing evidence, the preponderance of the evidence weighs against granting service connection. The Veteran's VA treatment records, VA examination report, and subjective complaints indicate that he does have a current disability of pretibial swelling in his bilateral legs. The weight of the evidence does not reflect, however, that any current pretibial swelling had its onset during or is otherwise related to the Veteran's active duty service. There is no competent medical evidence of record indicating that the Veteran's lower extremity swelling is related to service. The sole medical opinion of record, that of the June 2012 examiner, states that it is less likely than not related to service or the tenosynovitis noted therein. No synovitis was currently found. The only statements in favor of a finding of a relationship to service are those of the Veteran himself. The Board acknowledges the Veteran's statements indicating that he had ankle pain and swelling, and he is competent to report on matters observed or within his personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, as a layperson not shown to possess appropriate medical training and expertise, the Veteran is not competent to render an opinion on the etiology of that condition, as such requires medical expertise to determine such etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Thus, the Veteran's opinion that his currently swelling of the lower extremities is related to the swelling he experienced in the service is not a competent medical opinion. As such, the medical findings and opinion of the VA examiner warrant greater probative weight than the Veteran's lay contentions. As noted, the cause of the swelling in service, tenosynovitis, is not currently shown. The current swelling was first clinically demonstrated years after service. While the Veteran has claimed a chronicity of symptomatology since the time of his discharge from service, he has not presented any medical evidence supporting his claims of continuous symptomatology, linking his claim to service, or showing any diagnosis of a disease that has been recognized by VA as a chronic condition. Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011) (The theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a) (2012)). The Veteran stated at his February 2013 hearing that he has had repeated problems with swelling in his legs, but he has also worked for many years in jobs requiring continuous standing, indicating that he has been active and ambulatory for much of his adult life, and has not shown any evidence that the pain he has experienced was, in fact, chronic, or that it shares a common etiology with the pain he experienced in the service. The Veteran's wife has also testified that he has had ankle pain for as long as she has known him. This, however, has only been for approximately 35 years, which would only be starting around 20 years after the Veteran's discharge from active duty service. Her testimony, therefore, is not sufficient as evidence to indicate that the Veteran had a lower extremity condition in the years immediately following his discharge from service. The Veteran has provided no documented complaints of any symptoms of leg or ankle pain or swelling until 2003, which is approximately 46 years after active military service. The Board points out that the passage of so many years between discharge from active service and the documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006) (the lack of contemporaneous medical records, the significant time delay between the affiants' observations and the date on which the statements were written, and conflicting statements of the veteran are factors that the Board can consider and weigh against a veteran's lay evidence). The Veteran's original claim also included reference to residuals of blood poisoning, although this particular medical condition has not been further asserted by the Veteran at any point during the rest of the pendency of this appeal. To the extent that the Veteran is also claiming that he has blood poisoning residuals, he has provided no evidence of ever having had blood poisoning in the legs, either during service or after his discharge. The June 2012 examiner did not find any diagnosis of blood poisoning or residuals of blood poisoning. The Veteran's service treatment records are silent for any complaints or treatments related to blood poisoning. As a layperson, the Veteran does not possess appropriate medical training and expertise to render a competent opinion on a diagnosis such as blood poisoning. See Jandreau, 492 F.3d at 1376-77. Without a diagnosis of this condition or any evidence whatsoever indicating that the Veteran has ever had a blood poisoning condition, there is no basis on which service-connection can be granted. The law limits entitlement for service-related diseases and injuries to cases where an underlying in-service incident has resulted in a disability, and in the current case there is no evidence of the Veteran having, or ever having had, blood poisoning. See 38 U.S.C.A. §§ 1110, 1131; see also Brammer v. Derwinski, 3 Vet. App. 223 (1992). Furthermore, the Veteran acknowledged at his February 2013 hearing that he was unaware of what caused his lower leg swelling and did not assert that it was or had ever been due to blood poisoning. For the foregoing reasons, the preponderance of the evidence is against the claim for entitlement to service connection for a bilateral leg condition, to include residuals of blood poisoning. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. at 53. ORDER Entitlement to a bilateral leg disorder, to include residuals of blood poisoning, is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs