Citation Nr: 1313416 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 10-10 404 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a disability manifested by neurological abnormalities in the left lower extremity, including as secondary to service-connected chronic lymphocytic leukemia (CLL). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and E.S. ATTORNEY FOR THE BOARD S. Coyle, Counsel INTRODUCTION The Veteran served on active duty from October 1967 to December 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal of a March 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A hearing on this matter was held before the undersigned Veterans Law Judge sitting at the RO on August 25, 2011. A copy of the hearing transcript has been associated with the file. In October 2011 and October 2012, the Board remanded the matter to the agency of original jurisdiction (AOJ) for additional development, which has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). On remand, the AOJ granted an appeal for service connection for CLL and peripheral neuropathy, right lower extremity, as secondary to CLL; therefore, the Board no longer has jurisdiction over those issues. Although the claim on appeal has previously been characterized as a claim for service connection for peripheral neuropathy of the left lower extremity, including as secondary to service-connected CLL, the evidence establishes that the Veteran does not have any diagnosed neurological disability affecting his left lower extremity. Thus, the issue has been recharacterized to comport with the evidence of record. FINDING OF FACT No disability manifested by neurological abnormalities in the left lower extremity is currently diagnosed, or has been diagnosed during the pendency of the claim. CONCLUSION OF LAW The criteria for service connection for a disability manifested by neurological abnormalities in the left lower extremity are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duty to Notify and Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. In his August 2011 hearing, the Veteran waived any error in the content or timing of the notice provided to him; VA's duty to notify is considered satisfied. The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. There is no indication that the Veteran receives Social Security disability benefits. VA examinations were conducted in November 2011 and November 2012; the Veteran has not argued, and the record does not reflect, that these examinations were inadequate for purposes of deciding this issue. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The examiners made all findings and rendered all opinions necessary to determine entitlement to service connection for a disability manifested by neurological abnormalities in the left lower extremity. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006); Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Analysis Service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. If a condition noted during service is not determined 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). 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). There must be medical evidence of a current disability, medical or lay evidence of in-service incurrence or aggravation of a disease or injury, and medical evidence linking the current disability to that in-service disease or injury. Pond v. West, 12 Vet. App. 341, 346 (1999); Hickson v. West, 12 Vet. App. 247, 253 (1999). A service connection claim must be accompanied by evidence which establishes that the claimant currently has the claimed disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). The Veteran claimed service connection for peripheral neuropathy in March 2008, although he did not state whether peripheral neuropathy affected one or both extremities. In an April 2008 statement, however, he asserted that he experienced edema, pain and numbness in both of his lower extremities as a result of CLL. The service treatment records do not reflect any complaints of, or treatment for, any disability manifested by neurological abnormalities in the left lower extremity. There is also no evidence of treatment for such a disability in the post-service clinical notes. The Veteran received a VA examination in November 2011. Peripheral neuropathy secondary to chemotherapy treatment for CLL was noted, and described as "decreased sensation in the lateral leg and lateral foot on the right." There was no mention of any neurological abnormalities in the left lower extremity. The Veteran received a second VA examination in November 2012. His medical history included "numbness to his right lateral leg." The examiner's diagnosis was peripheral neuropathy, manifested as "numbness to the lateral aspect of his right foot and leg and thigh" secondary to chemotherapy for CLL known to cause nerve problems. There was no mention of any neurological abnormalities in the left lower extremity. Central to any grant of service connection is a current disability. In the absence of proof of a present disability there can be no valid claim. Brammer, supra. There is no competent evidence of a disability manifested by neurological abnormalities in the left lower extremity. The Veteran has not sought treatment for such a disability, although he has received treatment for peripheral neuropathy in the right lower extremity. He has had two VA examinations, neither of which have found any evidence of neurological disability in the left lower extremity. The only evidence of neurological abnormalities in the left lower extremity is the April 2008 statement in which the Veteran reported edema in both lower extremities and numbness in both feet. The Veteran is competent to report such symptoms, as he can observe them through his five senses. Layno v. Brown, 6 Vet. App. 465 (1994). However, although lay persons are competent to provide nexus statements on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), diagnosing peripheral neuropathy falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Since April 2008, the Veteran has reported no neurological abnormalities affecting his left lower extremity, despite receiving treatment for similar abnormalities in the right lower extremity. The objective medical evidence reflects no hint of any current or past disability manifested by neurological abnormalities in the left lower extremity. The preponderance of the evidence is against a finding of service connection for a disability manifested by neurological abnormalities in the left lower extremity; there is no doubt to be resolved. Service connection for this disability is not warranted. ORDER Entitlement to service connection for a disability manifested by neurological abnormalities in the left lower extremity, including as secondary to service-connected CLL, is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs