Citation Nr: 1323027 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 11-06 768 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a right leg disability, including secondary to service-connected arteriosclerotic heart disease. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. J. Vecchiollo INTRODUCTION The Veteran served on active duty from August 1959 to October 1979. This appeal arises from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In June 2011, the Board denied the issue currently on appeal, and the Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a January 2012 Memorandum Decision, the Court vacated the June 2011 Board decision and remanded the appeal to the Board for further action. The Board remanded the claim in March 2013 for further development and consideration. 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 evidence does not show the presence of a right leg disability. CONCLUSION OF LAW The criteria for service connection for a right leg disability, including secondary to service-connected arteriosclerotic heart disease have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board must first address VA's duty to notify and assist claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Veteran filed his claim in December 2008 for service connection for a right leg disability. The RO sent the Veteran a letter in February 2009 which informed him what was needed from him, how he could help with his claim, how VA could help him with his claim, what the evidence must show to support his claim, and how VA assigns disability ratings and effective dates. This satisfies VA's notice requirements, and in any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). VA has obtained service treatment records, assisted the appellant in obtaining evidence, afforded the appellant physical examinations, obtained a medical opinion as to the etiology and severity of disability, and afforded the appellant the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. II. Analysis To establish service connection for a claimed disability, the facts as shown by evidence must demonstrate that a particular disease or injury resulting in current disability was incurred during active service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131 (West 2002). To establish service connection for the claimed disorder, there must be (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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Additionally, under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability that is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Service entrance examination in August 1959 noted the Veteran's lower extremities were normal. There are no records of treatment for any disability to the right leg in service. In December 1979 the Veteran was examined by VA. He did not report any in-service disability to the right leg during the examination. No right leg disorder was diagnosed. The Veteran was examined again in June 1988 by VA. The Veteran did not describe any residuals of an in-service injury to the right leg in his listing of his present complaints. The only symptom described was numbness in the area of his "legs" where a vein was removed and used in his coronary artery bypass grafting. Tender surgical scars of the chest, abdomen and right and left leg were described. No right leg disorder was diagnosed. VA examination of the heart in April 2007 noted a few mild varicosities of the lower extremities. No diagnosis of any disorder of the lower extremities was diagnosed. September 2008 records from a private physician indicate the Veteran was seen with a contusion and pain of the right shin. He had been seen in the emergency room one week previously for contusion and hematoma of the right leg. The diagnoses included a contusion of the right leg with hematoma secondary to trauma. The Veteran was examined by VA in April 2009. No contusion or hematoma of the right lower extremity was found on examination. The only symptom of the lower legs was trace edema of both lower extremities. No disorder of the right leg was diagnosed. Coronary artery disease, mitral valve replacement and symptomatic sick sinus syndrome were the only diagnoses. A VA examination was conducted in April 2013. After an examination, review of the Veteran's claims file, and medical literature, the examiner stated that the Veteran does not have a vascular condition of the right leg. (He also noted that the left leg varicosities were unrelated to the Veteran's service connected coronary artery disease or hypertension.) The first element required to support a claim for service connection is a diagnosis of a current disability. The only diagnosis of any disorder of the right leg appears to have been an acute event. There is evidence of trauma to the right leg resulting in a visit to the emergency room in September 2008 with follow up one week later. There is no subsequent record of any treatment for the contusion or hematoma of the right leg demonstrating it resulted in a current disability. Subsequent VA examination in April 2009 and April 2013 found no evidence of a contusion or hematoma of the right leg. The only symptom noted was edema of not just the right leg, but both legs. No diagnosis of any disorder of the right leg was made in April 2009 and April 2013. The weight of the evidence does not demonstrate the Veteran currently has any residuals of a right leg disability. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, diagnosing a current right leg disability, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). There is also no contemporaneous or later diagnosis of any residuals of a right leg disability by a medical professional based on the Veteran's complaints. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Thus, in summary, there is no competent evidence of a present right leg disability. Because there is no competent evidence of a present disability of the right leg, it is not necessary to address any question of etiology to include nexus with service or a service-connected disability. In the absence of proof of a present disability, there can be no valid claim for service connection. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Therefore, absent competent evidence of a present disorder, service connection is not warranted. See McClain v. Nicholson, 21 Vet. App. 319 (2007). The preponderance of the evidence is against the claim for service connection for a right leg disability. ORDER Service connection for a right leg disability, including secondary to service-connected arteriosclerotic heart disease is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs