Citation Nr: 1331209 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 11-10 745 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for a left hip disability. 2. Entitlement to service connection for a left leg disability. REPRESENTATION Appellant represented by: Jan Dils, Attorney ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran had active duty from August 1943 to November 1945. This matter arises before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Board has reviewed both the Veteran's physical claims file and the record maintained in the Virtual VA paperless claims processing system to ensure complete consideration of all the evidence. 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). FINDINGS OF FACT 1. The preponderance of the competent and credible evidence of record does not show that the Veteran was diagnosed with a left hip disability at any time during the pendency of the appeal. 2. The preponderance of the competent and credible evidence of record does not show that the Veteran was diagnosed with a left leg disability at any time during the pendency of the appeal. CONCLUSIONS OF LAW 1. A left hip disability was not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 2. A left leg disability was not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Before addressing the merits of the issues 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. 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 letter dated in April 2010 of VA's duty to assist him in substantiating his claims and the effect of this duty upon his claims. This letter also informed him of how disability ratings and effective dates are assigned. Dingess, 19 Vet. App. at 484. Because the letter addressed all notice elements and predated the initial adjudication by the AOJ in July 2010, nothing more is required. Thus, the Board concludes that all required notice has been given to the Veteran. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Board also finds that VA has satisfied its duty to assist the Veteran in the development of his claims. The Veteran's in-service treatment records have been associated with the claims file. He has also submitted personal statements and provided testimony at a January 2012 hearing before a Decision Review Officer (DRO). The Veteran has not indicated that any additional pertinent evidence exists, and there is no indication that any such evidence exists. The Board has reviewed both the physical claims file and the file on the Virtual VA electronic file system, to ensure a total consideration of the available evidence. Although a VA examination was not scheduled to obtain a medical opinion, the Board finds that it is not necessary. Under the VCAA, VA is obliged to provide an examination when the veteran presents a claim for service connection and meets the threshold requirements that there was an event, injury, or disease in service; there is evidence of current disability or recurrent symptoms; and the evidence of record indicates that the claimed disability or symptoms may be associated with service. 38 U.S.C.A. § 5103A(d), 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006) and Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). As discussed below, the Veteran failed to submit or identify any medical evidence showing current diagnoses of, or treatment for injury residuals involving the left hip or left leg. Accordingly, an examination is not required here, even under the low threshold of McLendon. Thus, the Board finds that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claims under the VCAA. No useful purpose would be served in remanding this matter for yet more development. A remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit to the Veteran. 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); & Quartuccio v. Principi, supra. Law and Analysis The Veteran seeks service connection for injury residuals involving the left hip and left leg. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). "To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) 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." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). After considering all information and lay and medical evidence of record in a case 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 a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The Veteran claims that he sustained injuries to his left hip and left leg while serving on board a destroyer during World War II. Specifically he testified that his ship was under Japanese suicide attack and that he jumped from the gun deck down to the main deck for safety. He also testified that although he did not report the injury at the time, his left hip and leg have bothered him ever since. He also testified that he has never sought any treatment for his hip or leg. See VA Form 21-4138, received in August 2010 and January 2012 DRO hearing transcript (Tr.) pages 4-5 and page 9. Unfortunately, the primary impediment to a grant of service connection is the absence of medical evidence of current disabilities. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that the VA's and the Court's interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In the absence of proof of a present disability, there can be no valid claim. Rabideau v. Derwinski, 2 Vet. App. 141, 143- 44 (1992). Turning to the evidence of record, service treatment records show the Veteran made no specific left hip or left leg complaints and none are documented. Although there is no documentation of an in-service left hip or leg injury, the Board notes that service personnel records reflect that the Veteran served aboard the U.S.S. Conyngham (DD-371) during World War II. These records also note the ship's participation in multiple engagements including air strikes and enemy air action in June 1944, enemy air engagements in November 1944, and bombardment and dive bomber attacks in December 1944. As such, even though service treatment are negative for complaints of, treatment for, or findings involving the left leg and left hip, the Board concedes that the Veteran suffered the requisite in-service injury as contended. See also 38 U.S.C.A. § 1154(a) (West 2002). The lack of evidence of in-service incurrence is not, however, the only shortcoming in this claim, as there are no records of post-service treatment for left hip or left leg complaints or symptomatology that have been submitted or identified. The Veteran was informed in the April 2010 VCAA letter that he must have evidence of a current disability for his claimed condition. However he has not presented any such evidence nor has he provided any information as to where VA could obtain such evidence. In other words, the Veteran has not identified or produced any acceptable evidence, medical or otherwise, that would tend to show any identifiable pathology of the left hip or left leg. As result, the overwhelming medical evidence indicates that the Veteran does not currently have a chronic residual disability involving the left hip or left leg. There is no disputing the Veteran is competent to report that he injured his left hip and leg during service. He is equally competent to endorse ongoing symptoms of pain. However pain, while the type of symptom capable of lay observation, is not equivalent to a diagnosis of actual left hip and left leg disabilities. So while the Board does not dispute the Veteran's in-service history or his current complaints, there is no basis to award service connection because there also has to be chronic (meaning permanent) residual disability resulting from that condition or injury. See Chelte v. Brown, 10 Vet. App. 268 (1997) (observing that a "current disability" means a disability shown by competent evidence to exist). In this case, there is no objective clinical confirmation that he in fact suffers from actual left hip or left leg disabilities and his post-service assertions alone cannot satisfy that criteria. See Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001); Sanchez-Benitez v. West, 13 Vet. App. 282 (1999) (service connection may not be granted for symptoms unaccompanied by a diagnosed disability). Although the Veteran may indeed experience some sort of recurring left leg/left hip symptoms, without a pathology to which his complaints can be attributed, there is no basis to find left hip and left leg disabilities for which service connection may be granted. Certainly, absent a finding that the Veteran has been diagnosed with chronic residual disabilities involving the left hip or left leg at any time during the appeal period, no valid claim for service connection exists. See also McClain v. Nicholson, 21 Vet. App. 319 (2007) (which stipulates that a service connection claim may be granted if a diagnosis of a chronic disability was made during the pendency of the appeal, even if the most recent medical evidence suggests that the disability resolved). Consideration has of course been given to the Veteran's assertion of experiencing continuous left hip and left leg problems since service. However, while 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, the process of diagnosing musculoskeletal disabilities 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)." Based on this evidentiary posture, service connection cannot be awarded. Accordingly, the preponderance of the evidence is against these claims, and there is no reasonable doubt to be resolved. 38 U.S.C.A. § 5107(b). ORDER Service connection for a left hip disability is denied. Service connection for a left leg disability is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs