Citation Nr: 1334118 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 10-12 938 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for edema of the right lower extremity. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The Veteran served on active duty from October 1967 to October 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran was scheduled for a hearing before a Veteran's Law Judge in May 2012. He withdrew his hearing request and has not asked that it be rescheduled. In September 2012, the Board remanded the issues of entitlement to service connection for peripheral neuropathy, right and left hands; post phlebitic syndrome, left lower extremity; and, edema of the right lower extremity for additional development. By rating action in January 2013 service connection was granted for peripheral neuropathy, right and left upper extremities (hands); and, post phlebitic syndrome, left lower extremity. As this represents a full grant of benefits sought on appeal, those issues are no longer before the Board. The Veteran has raised the issue of service connection for heart disease. This issue was initially considered and deferred by the RO in a June 2010 rating decision. Subsequently, service connection for heart disease was denied in a November 2010 rating decision. His petition to reopen the claim has not yet been adjudicated by the RO and is referred back for appropriate action. The Board notes that, in addition to the Veteran's claims file, there is also a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file, as well as the paper claims file and will proceed with review of the claims based upon all relevant evidence. FINDINGS OF FACT The medical evidence does not show that the Veteran has diagnosed edema of the right lower extremity except to the extent that such is a symptoms associated with his already service-connected peripheral neuropathy. CONCLUSION OF LAW The criteria for service connection for edema of the right lower extremity have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION In a May 2009 letter, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013) and 38 C.F.R. § 3.159(b) (2013). The RO notified the Veteran of: information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the he was expected to provide. The Veteran was informed of the process by which initial disability ratings and effective dates are assigned, as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The "duty to assist" contemplates that VA will help a claimant obtain records relevant to the claim, whether or not the records are in Federal custody, and that VA will provide a medical examination when necessary to make a decision on the claim. 38 C.F.R. § 3.159 (2013). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2013). The claims file contains the Veteran's service treatment records, as well as relevant private and VA treatment records. The Veteran was also provided with VA examinations is connection with his appeal. Moreover, his statements in support of the claim are of record. The Board has carefully 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. The Board also finds that there has been substantial compliance with the September 2012 remand instructions. Specifically, on remand the RO was to afford the Veteran an examination to determine the etiology of his right leg edema. Such examination was performed in November 2012. The examination is adequate because, as shown below, it was based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because the reports describe the disability in detail sufficient to allow the Board to make a fully informed determination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). Moreover, the examiners responded to the specific inquiry posed by the Board. Based on the above, the Board has met the duties to notify and assist. No further notice or assistance to the Veteran is required for 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). II. Analysis Applicable law provides that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for certain chronic diseases when the disease is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995); 38 C.F.R. § 3.303(a). The existence of a current disorder is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (1997) (interpretation of 38 U.S.C.A. § 1110 and 38 U.S.C.A. § 1131 as requiring the existence of a present disorder for VA compensation purposes cannot be considered arbitrary and decision based on that interpretation must be affirmed); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). That a condition or injury occurred in service alone is not enough. There must be disability resulting from that condition or injury. In the absence of proof of a present disability, there can be no valid claim or the grant of the benefit. Rabideau v. Derwinski, 2 Vet. App. 141 (1992); see also McLain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the requirement that a claimant have a current disability before service connection may be awarded for that disability is also satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claims adjudication). Under § 3.303(b), an alternative method of establishing the second and/or third element is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a)). Continuity of symptomatology may establish service connection where a chronic disease under 38 C.F.R. § 3.309(a) shown as such in service or within the presumptive period, manifests at a later date. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required where the condition noted during service or the presumptive period is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. In this regard, the Board notes that lay persons may provide evidence of diagnosis and nexus under 38 U.S.C.A. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (vacating a decision that stated categorically that a valid medical opinion was required to establish nexus and that a lay person was not competent to provide testimony); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay evidence can be competent and sufficient to establish a diagnosis of the lay person is reporting a contemporaneous medical diagnosis); see also Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection). In addition, service connection may be established on a secondary basis for a disability that is proximately due to or the result of a 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) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). It is the Board's responsibility to evaluate the entire record on appeal. 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, reasonable doubt will be resolved in each such issue in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. An appellant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the evidence must preponderate against the claim. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Alemany v. Brown, 9 Vet. App. 518 (1996). In this case, the Veteran asserts that he has edema of the right lower extremity that is manifested as a result of a service-connected disability. The Veteran's claim of service connection for edema of the right lower extremity includes symptoms of numbness, tingling, pain and swelling. He is service connected for peripheral neuropathy of the right lower extremity. Prior to returning this claim to the Board, the RO in a January 2013 supplemental statement of the case denied service connection for edema of the right lower extremity, but determined that the symptoms the Veteran associated with the edema claim were typically associated with peripheral neuropathy. The RO then rated these symptoms as part of his peripheral neuropathy of the right lower extremity and granted an increased rating for peripheral neuropathy of the right lower extremity from 10 to 20 percent. A review of the service treatment records shows no evidence of edema of the right lower extremity during his period of active service. Vascular examination of the right lower extremity both at entrance and separation were normal. Following service, VA outpatient treatment records dated from May 2008 to February 2012 are negative for treatment of edema of the right lower extremity. VA examination reports dated in August 2009, October 2009, May 2010, September 2011, February 2012, and November 2013 do not present any findings associated with edema of the right lower extremity. There were no relevant diagnoses. The November 2013 VA examination report noted the Veteran's reported history of his hands swelling in 1967, which had never been diagnosed. No competent evidence of record shows that the Veteran currently has or ever had edema of the right lower extremity at any time since service. As stated above, a service connection claim must be accompanied by evidence which establishes that the Veteran currently has the claimed disability. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of present edema of the right lower extremity, there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). At no time during the pendency of this appeal has the Veteran demonstrated, nor does the evidence show, that he was diagnosed as having a disability manifested by edema of the right lower extremity. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (noting that the requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim). As the evidence of record shows no diagnosis or manifestations of any such current disability, service connection cannot be awarded. The Board acknowledges that the Veteran has consistently reported symptoms of numbness, tingling, pain and swelling. He is competent to report such symptoms, as they are observable to a lay person. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he has not been shown to possess the medical expertise to necessary to determine the source of such symptoms. Indeed, it is the province of trained health care professionals to enter conclusions that require medical expertise, such as opinions as to diagnosis and causation. Jones v. Brown, 7 Vet. App. 134, 137 (1994). In this case, the Veteran has many medical issues, including service-connected peripheral neuropathy and diabetes. Only a medical professional is competent to determine whether the reported symptoms are caused by diagnosed edema. Here, such medical professionals have failed to find objective evidence of edema. It is further noted that the symptoms reported by the Veteran as relating to the claimed edema are contemplated under the evaluation for peripheral neuropathy of the right lower extremity. In this regard, service connection cannot be awarded for two different disabilities that share the same symptom set; rather, there need to be distinct and separate symptoms attributable to each disability for multiple awards to be appropriate. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Thus, even if edema were diagnosed in this case, a separate grant of service connection would still be precluded absent evidence showing symptoms attributable to the edema that are not a component of an already service-connected disability. In light of the absence of any competent medical evidence of record to show that the Veteran currently has a separate and distinct disability manifested by edema of the right lower extremity, the claim must fail. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim of entitlement to service connection for edema of the right lower extremity. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 56. ORDER Service connection for edema of the right lower extremity is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs