Citation Nr: 1312072 Decision Date: 04/11/13 Archive Date: 04/19/13 DOCKET NO. 03-36 149 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a left leg disorder, secondary to the service-connected lumbar spine disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty from February 1965 to October 1968 and from February to September 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran testified before the undersigned at a September 2009 Central Office hearing. The hearing transcript is of record. This case was previously before the Board in May 2006, December 2009 and February 2012, at which time it was remanded to the RO for additional development. The case has since been returned to the Board for appellate review. The Board notes that in a November 2012 rating decision, the RO granted service connection for mild, chronic L4 radiculopathy, right lower extremity (claimed as a right leg disorder). This was a full grant of the benefit sought with regard to that issue. Grantham v. Brown, 114 F .3d 1156 (Fed. Cir. 1997). FINDING OF FACT The Veteran does not have a current left leg disorder. CONCLUSION OF LAW A left leg disorder was not incurred or aggravated in active military service, and is not proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before addressing the merits of the issue on appeal, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via June 2002 and September 2006 letters of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He was also was notified of how VA determines disability ratings and effective dates if service connection is awarded in the September 2006 letter. These letters accordingly addressed all notice elements. VCAA notice should be given before an initial AOJ decision is issued on a claim. Pelegrini II, 18 Vet. App. at 119-120. Complete VCAA notice was provided after the initial adjudication of the claims. This timing deficiency was remedied by the issuance of VCAA notice followed by readjudication of the claim. Mayfield v. Nicholson, 444 F. 3d 1328 (Fed. Cir. 2006). The claims were readjudicated in the August 2012 supplemental statement of the case. Therefore, any timing deficiency was remedied. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records, private treatment records, and VA treatment records. No outstanding evidence has been identified that has not otherwise been obtained. As noted above, the Board remanded the claim in February 2012 to afford him a VA examination and opinion on the etiology of any diagnosed disorder of the lower extremities. The Veteran was provided a proper VA examination in March 2012. To that end, when VA undertakes to provide an examination or obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds the VA examination report to be thorough and adequate upon which to base a decision with regard to the Veteran's claim. The Board finds that the remand instructions were thereby complied with. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran was also provided an opportunity to set forth his contentions at a Central Office hearing held in September 2009, before the undersigned. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) requires that the RO Decision Review Officer or Veteran's Law Judge (VLJ) who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the undersigned VLJ identified the issue on appeal. The VLJ also sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Therefore, not only was the issue "explained in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. See Bryant, 23 Vet.App. at 497. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and the Board can adjudicate the claim based on the current record. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of 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 disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). The theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In relevant part, 38 U.S.C.A. 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d at 1337 ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (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"). Service connection may 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). With chronic diseases shown as such in service, or within the presumptive period after service, so as to permit a finding of service connection, subsequent manifestation of the same chronic disease at any later date, however remote, are service-connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests arthritis to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. A disability which is proximately due to or the result of a service-connected disease or injury shall be service-connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (2012); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2010); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. At 54. Analysis The Veteran contends that he has a left leg disorder, related to his service-connected lumbar spine disability. Specifically, he claims that he has low back pain, associated with his service-connected lumbar spine disability, which radiates into his lower extremities and results in symptoms of pain, numbness and tingling in the legs. VA outpatient treatment records and private treatment records show that the Veteran has reported low back pain radiating to his lower extremities for over 30 years (since service). However, the records do not show that he has ever been diagnosed with a neurological disability of the right or left lower extremity. The Board also notes that the majority of the Veteran's complaints have been in reference to his right leg. In this regard, a May 2002 statement from private physician, R.W., MD indicates that the Veteran was experiencing chronic pain in the right leg. During outpatient treatment at the VA Medical Center in Augusta in April 2005, the Veteran complained of upper and lower back pain, as well as occasional numbness and tingling in the leg and arm. There was no indication as to whether his symptoms were related to the right or left extremities or both. However, later in April 2005, he again complained of having low back pain with radicular symptoms, and was diagnosed with lumbar and cervical radiculopathy. However, his complaints at that time were noted to be related to the right upper extremity, and the physician noted that he was more bothered by cervical symptoms. During a March 2009 VA examination, the Veteran complained of back pain that radiated down his right buttock and right thigh. He reported that he only experienced occasional pain on the left side and left buttock that may or may not have been related to his main back problem. On physical examination, straight leg raising was 90 degrees on each side, knee and ankle jerks were brisk and equal, he had 5/5 power to dorsiflexion and plantar flexion and no loss of sensation in his lower extremities. He was not diagnosed with a right or left leg disability at that time. In response to the Board's February 2012 remand, the Veteran was afforded a VA examination in March 2012. The Veteran reported injuring his back during active duty in the Air Force in 1966, which was treated with pain medication, a bed board and a cane for ambulation. He claimed that the pain medication was effective at relieving pain, but reported that when he re-entered the service in 1978, he experienced sharp, shooting lower back pain that radiated down his right lower extremity. At the time of his examination, the Veteran reported a history of right lower extremity pain and numbness and giving out of the right knee, due to weakness. He complained at that time of pain in the leg and posterior thigh, and numbness in the medial thigh and lateral left of the top of the foot on the right side. On physical examination, the Veteran reported constant, mild and intermittent, dull pain in the right lower extremity. He denied pain in the left lower extremity. He denied paresthesias and/or dysesthesias. He complained of mild numbness in the right lower extremity and denied numbness in the left lower extremity. Strength testing, reflex examination, and sensory examination were all normal in the right and left lower extremities. Electromyography (EMG) studies were abnormal for the right lower extremity. Specifically, they were consistent with chronic L4 radiculopathy, but no evidence of sensorimotor peripheral neuropathy. The examiner opined that the Veteran's diagnosed chronic L4 radiculopathy of the right lower extremity was at least as likely as not incurred or caused by the in-service injury, event, or illness. He did not diagnose a left lower extremity disability. Whether service connection is claimed on direct, presumptive, or any other basis, a necessary element for establishing such a claim is the existence of a current disability. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that section 1110 of the statute requires the existence of a present disability for VA compensation purposes); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this case, the Veteran has reported symptoms of pain, numbness, tingling and weakness in the lower extremities. He was diagnosed with radiculopathy of the right lower extremity during his most recent VA examination, and was granted service connection for the disability in November 2012. However, there is no confirmation in the evidence that the Veteran has, or has ever had a chronic disability of the left lower extremity. As noted above, the Veteran made complaints of low back pain radiating to the lower extremities during VA outpatient treatment, but he also specified during private treatment that it was actually his right leg that was affected. He made the same contentions during VA examinations. Neurological findings for the lower extremities were normal on examination in 2009. Furthermore, during his most recent examination in March 2012, the Veteran did not report any symptoms related to his left lower extremity, and as there were no objective neurological findings for the left lower extremity, the examiner did not diagnose a left lower extremity disability. The Veteran is competent to report his symptoms, but his reports are not competent evidence of the claimed disability since laypersons, such as the Veteran, are not qualified to render a medical diagnosis. 38 C.F.R. § 3.159(a)(1),(2) (2012). In the absence of proof of a current disability, there is no valid claim of service-connection. In light of the absence of any competent evidence of a chronic left leg disability in service or thereafter, the claim must be denied. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for a left leg disorder is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs