Citation Nr: 1343437 Decision Date: 12/31/13 Archive Date: 01/07/14 DOCKET NO. 13-32 542 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a right leg disorder. 2. Entitlement to service connection for a right ankle disorder. ATTORNEY FOR THE BOARD A. Martinez, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1999 to September 1999. These matters come before the Board of Veterans' Appeals (BVA or Board) from a March 2012 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Winston-Salem, North Carolina. The Board has reviewed the Veteran's physical claims file and her Virtual VA and Veterans Benefits Management System (VBMS) electronic claims files to ensure a complete review of the evidence. The Board notes that the Veteran was originally represented by the North Carolina Division of Veterans Affairs (NCDVA). In a March 2012 statement, the Veteran indicated that she no longer wanted representation by the NCDVA and will be representing herself. Revocation of representation may be made at any time. 38 C.F.R. § 14.631(f) (2013). Accordingly, the Board acknowledges that the Veteran is no longer represented. FINDINGS OF FACT 1. There is no competent evidence that the Veteran has a current right leg disorder of service origin. 2. There is no competent evidence that the Veteran has a current right ankle disorder of service origin. CONCLUSIONS OF LAW 1. A right leg disorder was not incurred or aggravated in service. 38 U.S.C.A. §§ 1110, 1111 (West 2002); 38 C.F.R. § 3.303, 3.304, 3.307, 3.309 (2013). 2. A right ankle disorder was not incurred or aggravated in service. 38 U.S.C.A. §§ 1110, 1111 (West 2002); 38 C.F.R. § 3.303, 3.304, 3.307, 3.309 (2013). (CONTINUED ON NEXT PAGE) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist 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 (West 2002); 38 C.F.R. §§ 3.159, 3.326(a) (2013). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the 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. Here, the Veteran has not alleged prejudice with respect to notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Goodwin v. Peake, 22 Vet. App. 128 (2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. In March 2011, the Veteran was notified via letter of the criteria for establishing service connection, the evidence required in this regard, and her and VA's respective duties for obtaining evidence. She was additionally notified of how VA determines disability ratings and effective dates if service connection is awarded. Therefore, adequate notice was provided to the Veteran prior to the transfer and recertification of his case to the Board and it complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The Board also finds that the duty to assist requirement has been fulfilled. All relevant, identified, and available evidence has been obtained. Although the Veteran's service treatment records were originally found to be unavailable, the Veteran subsequently submitted copies and they have been associated with the file. The Veteran has additionally submitted a private treatment record and it has been associated with the file. She also submitted multiple billing statements. The Veteran has not referred to any additional unobtained evidence which is necessary for a fair adjudication of the claim. The Board notes that in March 2011 the RO wrote to the Veteran and requested that she provide completed authorization forms to allow the VA to obtain post service treatment records from a private doctor who she had listed on her claim form. Significantly, the appellant never provided the requested authorization form. The Board notes that, while VA has a statutory duty to assist the Veteran in developing evidence pertinent to a claim, the Veteran also has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see Hayes v. Brown, 5 Vet. App. 60, 68 (1993) (VA's duty to assist is not a one-way street; if a veteran wishes help, he/she cannot passively wait for it in those circumstances where his/her own actions are essential in obtaining the putative evidence). Although VA did not provide the Veteran with a medical examination regarding her claims for entitlement to service connection for a right leg disorder and a right ankle disorder, the Board finds that none was required in this case because-as discussed below- there is no evidence indicating that the Veteran has disabilities that may be related to service. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159 (2013); see McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Accordingly, a VA examination was not warranted in this case. The Board concludes that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Smith v. Gober, 14 Vet. App. 227 (2000). II. Service Connection The Veteran states that she had "a lot of problems with [her] right leg/ankle." She specifically claims she has a "rod in [her] leg" and feels such problem began in basic training. She concedes that she had an accident since service in which her leg was broken, but states that it was a minor accident. She claims service connection is warranted. Service connection may be granted for a disability resulting from injury or disease incurred in or aggravated by active service. To establish service connection for the claimed disorder, there must be medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Service connection may also be granted for chronic disorders when manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1110, 1111, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303 , 3.304, 3.307, 3.309 (2013). Continuity of symptomatology is required only where the condition noted during service or in the applicable presumptive period is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2013). The provisions of § 3.303(b) apply only to the list of chronic disabilities under § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The threshold requirement to grant service connection is evidence of a current disability. In other words, in the absence of evidence of a current disability, in this matter a diagnosis of a right leg disorder or a right ankle disorder, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Court of Appeals for Veterans Claims has held that the requirement in a claim of service connection of current disability "is 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 and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim." See McClain v. Nicholson, 21 Vet. App. 319 (2007). Based on a thorough review of the record, the Board finds that the Veteran does not have and has not had a diagnosis of a right leg disorder or a right ankle disorder that may be related to service during the entire period on appeal; her claims for service connection must be denied. Although the Veteran's service treatment records reflect that the Veteran sought treatment for right ankle and foot pain, that evidence does not support a finding of current diagnoses of right ankle or right leg disorders. In addition, the Veteran's private treatment record of a right ankle surgery in September 2008, and her private billing records from September 2008 to August 2010, do not provide diagnoses for current right leg and right ankle disorders at any time during the appeals period. Such records all pre-date her claim for disability compensation which was submitted to VA in January 2011. Moreover, the Board notes that the September 2008 treatment record from the Pitt County Memorial Hospital shows that the Veteran was treated for an "open" ankle fracture with a history of "multiple trauma." Given that she has conceded that she sustained a fracture after service, there is no logical basis to conclude that the fracture treated in September 2008 was in any way related to service. The service medical records are negative for a fracture. The Board also notes that as an open fracture is a fracture in which bone protrudes through the skin, it would be highly unlikely that such a disorder would have been present for the nine years from separation from service until being treated in 2008. Accordingly, there is no competent lay evidence or medical evidence that the Veteran has or has had a current diagnosis of a right leg disorder or a right ankle disorder of service origin. The only disorder noted in the treatment record is the fracture which the Veteran has conceded occurred after service. The Board again notes that the Veteran failed to cooperate in the development of post service evidence. For these reasons, the Board finds that the preponderance of the evidence is against the Veteran's claims for service connection for a right leg disorder and a right ankle disorder, and the claims must be denied. Because there is a preponderance of the evidence against the claims, reasonable doubt is inapplicable and may not be resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b). ORDER Service connection for a right leg disorder is denied. Service connection for a right ankle disorder is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs