Citation Nr: 1311902	
Decision Date: 04/10/13    Archive Date: 04/19/13

DOCKET NO.  07-00 318	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Providence, Rhode Island


THE ISSUE

Entitlement to service connection for a left leg disability, to include as secondary to a low back disability.


REPRESENTATION

Appellant represented by:	David Bander, Attorney at Law


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Cheryl E. Handy, Associate Counsel


INTRODUCTION

The Veteran, who is the appellant, served on active duty from July to August 1976.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in March 2006 by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island, which denied service connection for a low back disability and a bilateral leg disability.  On remand, an April 2012 rating decision granted service connection for low back and a right leg disabilities.  The claim of service connection for a left leg disability remains on appeal.

In November 2009 the Veteran appeared at a videoconference hearing before a Veterans Law Judge.  A transcript of that hearing is in the claims file.  The Veterans Law Judge has since left the Board.  The Veteran was informed of his right to request an opportunity to appear at a hearing before the undersigned.  A communication from the Veteran's attorney in February 2013 waived that right.

This case was previously before the Board in January 2010, when it was remanded for further development, to include a VA examination.  As the requested development has been completed, no further action to ensure compliance with the remand directive is required.  Stegall v. West, 11 Vet. App. 268 (1998).

In the Board's January 2010 remand, the issue of entitlement to service connection for an acquired psychiatric disability, such as depression or anxiety, secondary to his service-connected low back disability, was referred to the RO for appropriate action.  As no further action appears to have been taken on this issue, the Board once again refers it to the RO for appropriate action.  In addition, recent correspondence from the Veteran's attorney has raised the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).  This issue is also referred to the RO for appropriate action. 


FINDING OF FACT

A current left leg disability has not been demonstrated.


CONCLUSION OF LAW

The criteria for service connection for a left leg disability, to include as secondary to a low back disability, have not been met.  38 U.S.C.A. §§ 11310, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.310. 


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); Pub.L. 112-154, §§ 504(a)(1)-(2), 505(a)-(b) (Aug. 6, 2012) (to be codified at 38 U.S.C.A. §§ 5103(a)-(b), 5103A(b)-(c)); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).   

Duty to Notify

Proper notice from VA must inform the claimant of any information and medical or lay 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.  38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.

VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

Here, the Veteran was sent a letter in December 2005 that provided information as to what evidence was required to substantiate the claim(s) and of the division of responsibilities between VA and a claimant in developing an appeal.  The Board acknowledges that, in the present case, complete notice was not issued prior to the adverse determination on appeal.  However, fully compliant notice was later issued in a March 2006 communication, and the claim was thereafter readjudicated in July 2006.  Accordingly, any timing deficiency has here been appropriately cured.  Mayfield, 444 F.3d 1328 (Fed. Cir. 2006).  No further development is required with respect to the duty to notify.

Duty to Assist

Next, VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  

The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file.  These files together comprise the claims file.  The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination.  Moreover, his statements in support of the claim are of record, including testimony provided at a November 2009 hearing before a Veterans Law Judge.  The Board has reviewed such statements and concludes that no available outstanding evidence has been identified.  The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim.

In compliance with the Board's January 2010 remand, the RO obtained the Veteran's outstanding medical records and Social Security records and provided a VA examination in February 2012.  This examination contained all information needed to determine whether the Veteran had a current disability related to service.  Indeed, the examiner reviewed the evidence of record and documented the Veteran's current complaints and history.  Moreover, the VA examiners performed a thorough clinical evaluation, then offered opinions as to the nature of the claimed disabilities, accompanied by a rationale.  Therefore, this examination is adequate for VA purposes.  Thus VA has complied with the January 2010 remand instructions.  Stegall v. West, 11 Vet. App. 268 (1998).

The United States Court of Appeals for Veterans Claims (Court) has held that that provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010).

At his hearing the Veteran's Law Judge identified the issue, sought information as to treatment to determine whether all relevant records had been obtained, and sought information as to any changes in the disability since the last examination.  Ultimately she remanded the appeal in an effort to obtain evidence that would substantiate the claim.  These efforts were ultimately successful with regard to two of the three issues on appeal.  Thereafter the Veteran received the Board's remand and subsequent re-adjudications of the remaining claim, which explained the evidence that was found to be lacking and that lead to the denial.  The Board thereby met the duties imposed by 38 C.F.R. § 3.103(c)(2) as interpreted in Bryant.

For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Principles of Service Connection

Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1131. 

To establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  All three elements must be established by competent and credible evidence in order that service connection may be granted.

Service connection may also be granted for any disease 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). 

Service connection may be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury.  38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). 

In a service connection claim, the threshold question is whether the Veteran has a current disability.  In the absence of proof of present disability, there can be no valid claim of service connection.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  The requirement of a current disability may be met by evidence of symptomatology at the time of filing or at any point during the pendency of the claim.  McClain v. Nicholson, 21 Vet. App. 319, 323 (2007).

Evidentiary Standards 

VA must give due consideration to all pertinent medical and lay evidence in a case where a Veteran is seeking service connection.  38 U.S.C.A. § 1154(a).  

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159.

Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion.  38 C.F.R. § 3.159.

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, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").  A Veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses.  Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding that, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation). 

The Board, as fact finder, must determine the probative value or weight of the admissible evidence.  Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed. Cir. 2000) ("Fact-finding in veterans cases is to be done by the Board")). 

When there is an approximate balance of positive and negative admissible evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran.  38 U.S.C.A. § 5107(b). 

Facts and Analysis

The gist of the Veteran's claim is that he has symptoms of radiculopathy in the left leg, similar to those in the right leg, which are also caused by the low back disability.

The record shows that the Veteran sustained an injury to his back in service and that he reported bilateral leg pain thereafter.  He was treated on several occasions prior to the filing of his claim for bilateral leg pain and for give away weakness in one or the other of his legs.  In October and November 1988 he complained of low back pain radiating to his left leg and the provider indicated that there may be a problem on the left side which required further study.  EMG testing in December 1988 showed normal nerve conduction in the left leg.  In August 2001, the Veteran was receiving ongoing treatment for pain in both legs largely due to vaculitis.  Since the date of claim, filing, however, none of the Veteran's medical records have shown complaints or treatment of the left leg.  

On VA examination in February 2012, the examiner diagnosed both a lumbar spine disability and secondary radiculopathy in the right leg as a result of that disability.  However, the examination showed normal muscle strength, reflexes, and sensation to light touch in the left leg, in contrast to impaired reflexes in the right leg.  In addition, the Veteran denied experiencing constant pain or intermittent pain, as well as paresthesias or numbness in the left leg, although he did report intermittent pain and paresthesia in the right leg.  

The examiner indicated that the Veteran had involvement of the sciatic nerve with moderate radiculopathy in the right leg but noted that the left leg was unaffected.  Lumbar radiculopathy was diagnosed in the right leg only; no diagnosis or symptoms were listed for the left leg.  Each of the nerves listed as affected in the right leg was found to be normal on examination in the left leg.

In this instance, the evidence does not show that the Veteran has a current left leg disability.  The February 2012 VA examination clearly showed radicular symptoms and findings in the right leg and service connection has been awarded as a result.  However, the examination showed that the Veteran's left leg was normal, with no evidence of pain or loss of sensation or any other radicular symptoms.  There is no other medical evidence of a left leg disability.

The Veteran is competent to report left leg symptoms, but on the VA examination he described only symptoms in the right leg.  The notice of disagreement, prepared by the Veteran's former representative makes no reference to a left leg disability.  In his substantive appeal, the Veteran also made no reference to a left leg disability.  At his hearing, the Veteran's representative repeatedly asked him about a "bilateral leg" disability, but the Veteran repeatedly reported only a "leg" disability.  At the February 2012 hearing he reported only symptoms in his right leg.

Prior to the filing of the claim, as recently as 2001, the Veteran had reported and been treated for pain in both legs, and had earlier treatment for left leg pain that was believed to be radicular.  However, none of the evidence for the appeals period, that is, as of the date of claim, has indicated any symptoms or diagnoses with respect to the left leg.  Indeed, even the Veteran's written statements have referred almost exclusively to his back pain and problems, with no statements regarding ongoing pain or numbness or other symptoms in his left leg.  As such, there is neither lay evidence nor competent medical evidence to indicate the presence of a current disability.

In his December 2005 claim the Veteran did refer to "NERVE DAMAGE, LEG BILAT" but reported no pertinent symptoms and noted only the treatment that had occurred in service.  It would require medical expertise to say that the Veteran actually had bilateral nerve damage in the legs, and there is no indication that the Veteran has such expertise.  It was not indicated that his report was based on what a medical professional had told him.  Subsequent examinations and diagnostic studies have not shown neurologic damage in the left lower extremity; hence, this was not a case where the Veteran was reporting symptoms that were subsequently confirmed by medical professionals.  The report on the December 2005 claim; therefore does not provide competent evidence of a current disability.  Cf. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

Thus, the evidence is against a finding of any current disability of the left leg.  The weight of the evidence is against the claim, reasonable doubt does not arise and the claim is denied.  38 U.S.C.A. § 5107(b).


ORDER

Entitlement to a left leg disability, to include as secondary to a low back disability, is denied.



____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs