Citation Nr: 1341345 Decision Date: 12/16/13 Archive Date: 12/31/13 DOCKET NO. 11-24 579 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a right leg disability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty from September 1966 to July 1974. This case comes before the Board of Veterans' Appeals (Board) on appeal of a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified before the undersigned at a June 2012 Video Conference hearing. The hearing transcript is of record. FINDING OF FACT A current right leg disability was not present in service or until years thereafter and is not etiologically related to service. CONCLUSION OF LAW A current right leg disability was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1111, 1153 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) defined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Under the VCAA, VA must inform the claimant of any information and 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. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a claim. Those five elements include: 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In this case, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) was furnished to the Veteran in a September 2009. The Veteran was notified of all elements of the Dingess notice, including the disability- rating and effective-date elements of the claims, in the September 2009 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim, as was done here. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). The Duty to Assist The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records, VA and private treatment records. Additionally, the Veteran was provided a proper VA examination in October 2010, to evaluate his right leg disability. In sum, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). The theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In relevant part, 38 U.S.C.A. 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d at 1337 ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must then determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Service connection may 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). With chronic diseases shown as such in service, or within the presumptive period after service, so as to permit a finding of service connection, subsequent manifestation of the same chronic disease at any later date, however remote, are service-connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary 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 the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2010); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. At 54. Analysis The Veteran contends that his currently demonstrated right leg disability is related to an injury he sustained during active military service. Service treatment records show that the Veteran was seen on June 14, 1967, with complaints of swelling, pain and tenderness in the right calf after hitting his leg against a pole while climbing it. The impression was deep vein phlebitis of the right leg. He was recommended for medical evaluation. During hospitalization from June 14 to June 20, 1967, it was noted that he experienced continued swelling and tenderness in the anterior lateral upper leg, but no distal swelling. There was also tenderness over the site of the contusion. Labs at that time were negative, and he was treated with bed rest and local heat. The records also noted that there was no evidence of deep venous thrombosis and the swelling and tenderness were resolving. At the time of his separation examination in July 1974, the Veteran reported that he was in good health, and no right leg disorder was noted. The post-service medical evidence of record does not indicate that the Veteran's current right leg disability is related to his active military service. Private treatment records show treatment for symptomatic varicose veins of the right lower extremity in 2011. They also show that the Veteran underwent a power phlebectomy utilizing the TriVex device, right lower extremity both above and below the knee in March 2011. These records do not show that the Veteran's right leg disability is related to his active military service. The earliest post-service evidence of record related to symptoms of a right leg disability is in 2010, more than 35 years after separation from service. This lengthy period without treatment is evidence against a finding of continuity of symptomatology, and it weighs heavily against the claim. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment of the claimed condition for many years after service). The Veteran was afforded a VA examination in October 2010 in response to his claim. The examiner noted the Veteran's in-service treatment for swelling and tenderness with a contusion of the right leg, after striking his leg against a pole while climbing a flagpole, and his report of being in good health at the time of his discharge in July 1974. He also noted the Veteran's post-service employment history for 27 years in maintenance, doing work on his hands and knees. He also noted that the Veteran had varicosities in his right lower leg and left leg, which were fairly asymptomatic, and varicosities on his right lateral knee, which were tender to palpation or when he bumped them. He diagnosed the Veteran with bilateral lower extremity varicose veins, and opined that the condition was not caused by or a result of the Veteran's right leg contusion in military service. His rationale was that the Veteran was initially diagnosed with potential deep vein thrombosis, but upon further evaluation after several days' observation, he was noted to not have deep vein thrombosis. He also explained that the Veteran had prominent varicose veins bilaterally, and that the contusion on the Veteran's right leg would not cause varicose veins bilaterally. There is no other medical evidence of record, VA or private, which indicates that the Veteran's current right leg disability is related to his active military service. The Board does acknowledge the Veteran's contentions that he developed a right leg disorder in service and had a continuity of symptomatology thereafter. See February 2011 notice of disagreement, September 2011 VA Form 9, and the June 2012 Video Conference hearing transcript. The Board notes that the Veteran is competent to report his experience and symptoms in service and thereafter, although he is not competent to provide a diagnosis or an etiological opinion. While lay persons are generally not competent to offer evidence which requires medical knowledge, such as opinions regarding medical causation or a diagnosis, they may provide competent testimony as to visible symptoms and manifestations of a disorder. Jones v. Brown, 7 Vet. App. 134, 137 (1994); Layno v. Brown, 6 Vet. App. 465, 469 (1994); Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). A Veteran can attest to factual matters of which he or she had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The United States Court of Appeals for the Federal Circuit has held that lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). In this case, the Board finds that the Veteran is competent to report that he has continued to have problems with his right leg since service. However, his reports must be weighed against the contemporaneous record. Service treatment records do show an injury and treatment for the right leg in June 1967. However, his right leg was evaluated as normal at the time of the Veteran's discharge later in 1974. Furthermore, as noted above, the Veteran did not seek treatment for his right leg until 2011, more than 35 years after his discharge. Furthermore, the Veteran first reported a continuity of right leg symptoms in 2009, years after service, and only in connection with the claim for VA compensation. His reports of continuity in his claim for service connection are not reflected elsewhere in the claims file. The Board finds the contemporaneous evidence to be more probative and credible than the Veteran's current assertions. Contemporaneous evidence has greater probative value than history as reported by the Veteran. See Curry v. Brown, 7 Vet. App. 59, 68 (1994). Moreover, a VA examiner provided a competent medical opinion that the Veteran's current right leg disability was not incurred in service. Based on the foregoing, the Board finds that a preponderance of the evidence is against the Veteran's claim. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. ORDER Service connection for a right leg disability is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs