Citation Nr: 1334381 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 10-10 224 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for swelling of the lower extremities. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran served on active duty from September 1984 to January 1985, and May 2005 to August 2006. This matter comes before the Board of Veterans' Appeals (Board) from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). FINDING OF FACT Swelling of the lower extremities is not shown to be a separate and distinct disorder but a symptom of the Veteran's service-connected hypertension. CONCLUSION OF LAW The criteria for service connection for swelling of the lower extremities have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). Proper notice from VA must inform the claimant of any information and 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The RO's February 2009 letter advised the Veteran of the foregoing elements of the notice requirements. This letter also provided the Veteran with notice of what type of information and evidence was needed to establish disability ratings, as well as notice of the type of evidence necessary to establish an effective date. See Dingess/Hartman, 19 Vet. App. at 486. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's available service treatment records, as well as identified private and VA medical treatment records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA scheduled the Veteran for VA examination in March 2013, but the Veteran cancelled the "medical part" of the examination. He has not provided a reason for his cancellation or requested that a new examination be scheduled. As such, the Board will proceed with adjudication of this original claim for service connection based upon the evidence of record. 38 C.F.R. § 3.655(b) (2013). In this regard, the Board also finds that there has been substantial compliance with its January 2013 remand as the RO attempted to provide the Veteran with an adequate VA examination, and it was incumbent upon the Veteran to appear. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. Service connection may be established for disability resulting from personal injury incurred or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran contends that he has swelling of the bilateral lower extremities that are due to a motor vehicle collision in Iraq in 2005. The Board notes that service connection is already in effect for a right knee disability manifested, in part, by right knee swelling. As such, the Board will limit its decision to whether service connection is warranted for swelling of the lower extremities other than the right knee. The service treatment records of record reflect no findings or histories of swelling of the lower extremities, per se. The treatment records reflect treatment for injuries sustained after a motor vehicle collision, to include abrasions to the right knee, but although there are findings of swelling of the right knee, attributed to injury of the anterior cruciate ligament, there are no findings of swelling in the lower extremities, per se. A January 2007 VA examination record reflects the Veteran's history that he had swelling of the right knee and no swelling of the feet. A November 2008 VA examination indicates that the "symptoms of possible complications" of the medications needed to control hypertension included ankle or foot edema. The record notes that the Veteran had been treated for hypertension since 2006. The physical examination revealed no edema. In November 2008, the Veteran reported that he experienced swelling of the lower legs, ankles, and feet. He asserted that the swelling was the result of the motor vehicle accident in 2005. An April 2009 VA treatment record reflects the Veteran's history of swelling in his feet and legs. A July 2009 VA treatment record reflects the Veteran's history of recurring swelling in the ankles that increased as the day progressed. Examination revealed moderate, nonpitting edema in the lower extremities. The examiner determined the lower extremity edema was due to the Veteran's hypertension medication, and the medication was changed. A September 2009 VA treatment record reflects the Veteran's history that the medication change had worked "well with no problems." An August 2010 VA treatment record reveals a finding of no swelling below either knee. A December 2010 VA treatment record reflects a negative history as to swelling in the lower extremities. A January 2011 VA treatment record reflects the Veteran's negative history as to swelling in the lower extremities and the examiner's negative finding as to edema. At the hearing before the Board in August 2012, the Veteran's testified of swelling of the lower extremities, which began after the motor vehicle collision in 2005. He reported that he was told at the hospital after the collision that the swelling was due to the blunt trauma sustained as a result of the collision. He added that although the swelling resolved after the accident, he had recurrent swelling of the lower extremities after standing for prolonged periods. The Veteran estimated that he had episodes of swelling once a month. Although the evidence reflects objective findings of swelling in July 2009 and the Veteran's history of swelling; there must be a diagnosed or identifiable underlying malady or condition. See Sanchez-Benitez v. West, 13 Vet. App. 283, 285 (1999). In this case, the medical evidence does not establish that the Veteran has an identifiable underlying condition. Rather it demonstrates that the swelling is a symptom of hypertension medication rather than an independent disability. Although the Veteran is competent to report observable symptomatology, such as swelling, he does not possess the requisite ability, experience, or knowledge to diagnose a disorder manifested by swelling. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Veteran has reported ongoing ankle swelling in August 2012, after his hypertension medication was changed. However, this history is not consistent with the other evidence of record, which indicates that the chronic swelling stopped after the hypertension medication was changed. Caluza v. Brown, 7 Vet. App. 498, 506 (1995) (finding that in weighing the credibility, VA may consider inconsistent statements, internal inconsistency, and consistency with other evidence of record). In this regard, the Veteran's denied swelling in September 2009, December 2010, and January 2011. Accordingly, as swelling of the lower extremities is a manifestation of the Veteran's service-connected hypertension, the Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for swelling of the lower extremities, and service connection is therefore not warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for swelling of the lower extremities is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs