Citation Nr: 1424331 Decision Date: 05/30/14 Archive Date: 06/06/14 DOCKET NO. 10-20 425 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a left leg disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. L. Krasinski, Counsel INTRODUCTION The Veteran served on active duty from February 1979 to February 1982. The Veteran had subsequent Reserves service. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the claim for service connection. In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the Veteran's file on the "Virtual VA" system to ensure a complete assessment of the evidence. FINDING OF FACT The Veteran does not have a current left leg disability due to the injury in ACDUTRA. CONCLUSION OF LAW The criteria for service connection for a left leg disability are not met. 38 U.S.C.A. §§ 101, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.6, 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Duty to Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The RO provided a notice letter to the Veteran in January 2009, prior to the initial adjudication of the claim. The letter notified the Veteran of what information and evidence must be submitted to substantiate a claim for service connection, as well as what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also told to inform VA of any additional information or evidence that VA should have, and was told to submit evidence in support of his claim to the RO. The notice letter provided notice of a disability rating and an effective date for award of benefits if service connection is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In February 2009, in response to this letter, the Veteran submitted an authorization for a private doctor and informed VA that he had no other information or evidence to submit in support of his claim. The content of the letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The record establishes that the Veteran has been afforded a meaningful opportunity to participate in the adjudication of his claim. Thus, there is no prejudice to the Veteran in the Board's considering this case on its merits. The Board finds the duty to notify provisions have been fulfilled, and any defective notice is nonprejudicial to the Veteran and is harmless. The Board finds that all relevant evidence has been obtained with regard to the Veteran's claim, and the duty to assist requirements have been satisfied. All available service treatment records were obtained. Private medical records from Dr. Bumagat were obtained. The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claim. The Veteran was afforded a VA examination in April 2009. The VA examination was based on review of claims file, solicitation of history and symptomatology from the Veteran, and a thorough examination of the Veteran. The examination report and findings are accurate and fully descriptive. The Board finds that the Veteran has been afforded an adequate examination. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). For these reasons, the Board finds that VA's duties to notify and assist the Veteran have been met, so that no further notice or assistance to the Veteran is required to fulfill VA's duties. 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). Legal Authority Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires competent evidence showing, (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The term "veteran" is defined as a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable." 38 U.S.C.A. § 101(2) (West 2002). The term "active military, naval, or air service" includes active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C.A. § 101(24) (West 2002); 38 C.F.R. § 3.6(a), (d) (2013). The definitional statute, 38 U.S.C.A. § 101(24), makes a clear distinction between those who have served on active duty and those who have served on active duty for training or inactive duty for training. The Court has held this statute, in effect, means that if a claim relates to period of active duty for training, a disability must have manifested itself during that period; otherwise, the period does not qualify as active military service and claimant does not achieve veteran status for purposes of that claim. Paulson v. Brown, 7 Vet. App. 466, 469-470 (1995). Active duty for training (ACDUTRA) is, generally, full-time duty in the Armed Forces performed by reserves for training purposes. 38 C.F.R. § 3.6(c)(1). Presumptive periods do not apply to ACDUTRA or inactive duty for training (INACDUTRA). See Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Therefore, consideration of 38 U.S.C.A. §§ 1111 and 1131 (presumption of soundness), 3.306 (presumption of aggravation of a chronic pre-existing disease), and 38 C.F.R. §§ 3.307 and 3.309 (presumption of service incurrence for certain disease) for the periods of ACDUTRA or INACDUTRA is not appropriate. With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both 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 Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C.A. § 7104(a). 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 a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.102, 4.3. Analysis The Veteran asserts that he has a current left leg disability due to an injury to the left leg that he sustained on ACDUTRA on May 15, 1988. Service records show that the Veteran sustained an injury to the left leg in the line of duty. The records indicate that a tailgate of a trailer of a truck fell across the left leg. Emergency room records indicate that the Veteran had a superficial abrasion and ecchymotic swelling in a three centimeter circular area on the left leg below the left knee. X-ray examination was negative. The assessment was contusion/abrasion of the left leg. He was given Tylenol for the pain and was told to return if the pain significantly worsened. The Veteran was placed on limited duty with no drilling, marching, or sports for three days. There is no competent evidence of a current left leg disability due to the injury in ACDUTRA. The April 2009 VA examination report indicates that the Veteran reported that he was on crutches for two or three weeks after the injury in ACDUTRA. The Veteran reported having pain at the site of the contusion that occurred about twice a week, that was an 8 out of 10 (on a scale of 1 to 10 with 10 the most severe pain), and that lasted two to three hours. The Veteran could not recall the last time he was seen by a physician for this condition and there was no treatment. Physical examination revealed that gait was normal. Strength testing was normal. Palpation along the left lower extremity tibia-fibula area was nontender. There were no skin changes or scars. The diagnosis was contusion of the left lower extremity shin, resolved, with no residuals or functional limitations. The Board finds the April 2009 VA medical opinion and examination findings to have great evidentiary weight as the opinion reflects a comprehensive and reasoned review of the entire evidentiary record. The VA examiner reviewed the claims folder including the service treatment records and the Veteran's medical history, and examined the Veteran before rendering the medical opinion. The VA examiner specifically addressed the service treatment records showing treatment of for the left leg injury in ACDUTRA and considered such findings when providing the diagnosis. Factors for assessing the probative value of a medical opinion are the examiner's access to the claims file and the thoroughness and detail of the opinion. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The medical opinion is based on sufficient facts and data. In Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), the Court held that guiding factors in evaluating the probity of a medical opinion are whether the opinion was based on sufficient facts or data, whether the opinion was the product of reliable principles and methods, and whether the medical professional applied the principles and methods reliably to the facts of the case. The Veteran asserts that he has had a chronic disability resulting from the injury in May 1988 during ACDUTRA and he self-medicated this injury. The Veteran, as a lay person, is competent to describe observable symptoms such as pain. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), providing a medical diagnosis falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1377 n.4 (lay persons not competent to diagnose cancer). There is no evidence showing that the Veteran has medical expertise or training and he is not competent to provide any medical diagnoses or medical opinions. The Board finds that the April 2009 VA medical opinion and examination findings outweigh the Veteran's own lay statements concerning the claimed left leg disability. The Board reviewed the private medical records from Dr. Bumagat. A September 2008 x-ray report shows an impression of joint effusion and mild degenerative changes in the left knee. The Board finds that the weight of the evidence demonstrates that the mild degenerative changes in the left knee are not due to the left leg injury in ACDUTRA. The service treatment records show that the injury to the left leg was below the left knee. The Veteran did not have any complaints of left knee pain or other left knee symptoms. The service x-ray examination was negative. Further, the April 2009 VA examination report indicates that the VA examiner did not identify any residual disability due to the left leg injury in service, the left leg contusion had resolved, and there were no residuals. The Board finds that the weight of the evidence establishes that the Veteran does not have a current disability due to the left injury in ACDUTRA and the left knee degenerative changes are not due to the left leg injury in ACDUTRA. The Court has held that Congress specifically limited entitlement to service connected benefits to cases where there is a current disability. "In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Without competent evidence of a diagnosed disability, service connection for the disorder cannot be awarded. See Brammer; supra; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004) (holding that service connection requires a showing of current disability); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (holding that a grant of service connection requires that there be a showing of disability at the time of the claim, as opposed to sometime in the distant past). As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the claim of service connection for a left leg disability due to the injury in ACDUTRA is denied. ORDER Service connection for a left leg disability is denied. ____________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs