Citation Nr: 1803787 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 14-38 433 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a bilateral leg condition, based on substitution of the Appellant. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. M. Donahue Boushehri, Counsel INTRODUCTION The Veteran served on active duty from November 1945 to December 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. Unfortunately, the Veteran passed away during the pendency of this appeal. In May 2017, the RO determined that the Appellant, the Veteran's surviving spouse, was eligible to seek substitution regarding the Veteran's pending claim. See 38 U.S.C. § 5121A (2012); 38 C.F.R. §§ 3.1010, 20.1302 (2017). In June 2016, the Appellant testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. In conjunction with his Board hearing, the Appellant submitted additional evidence with a waiver of Agency of Original Jurisdiction (AOJ) review. The Board has accepted this additional evidence for inclusion into the record on appeal. See 38 C.F.R. § 20.800 (2017). In September 2016, the Veterans Benefit Administration denied service connection for the cause of the Veteran's death. The Appellant has not filed a notice of disagreement. As such, this issue is not on appeal before the Board. The claim was remanded by the Board in September 2017 for additional development to include a VA opinion. FINDING OF FACT The Veteran's bilateral leg condition did not have its onset during service and are not otherwise related to service. CONCLUSION OF LAW The criteria for service connection for a bilateral leg condition are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Assist The requirements of 38 U.S.C.A. § 5103 and 5103A (2012) have been met. By correspondence dated in August 2012, VA notified the Veteran and Appellant of the information and evidence needed to substantiate and complete a claim. The letter also notified the Veteran as to how VA assigns disability ratings and effective dates. VA has also satisfied the duty to assist. The claims folder contains service treatment records and VA treatment records. The Board finds there has been substantial compliance with the prior remand, and adjudication of the Appellant's claim may proceed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The AOJ obtained a November 2017 VA opinion, a supplemental statement of the case was issued in November 2017, and the case has returned to the Board. VA has complied with the notice and assistance requirements and the Appellant is not prejudiced by a decision on the claims at this time. II. Service Connection Rules and Regulations Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). It is noted that the Veteran's service treatment records are unavailable, except for a December 1946 separation examination. Where a veteran's service treatment records have been destroyed or lost, there is a duty to advise him to obtain other forms of evidence. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). In this case, the RO's efforts yielded no additional service treatment records from the National Personnel Records Center (NPRC). The record reveals that the RO took steps to obtain all available evidence. In addition, as noted, the Board previously remanded this appeal to obtain an opinion, seeking all avenues to seek positive evidence that would support the granting of this appeal. For all these reasons, the Board concludes that VA's heightened duty to assist has been satisfied. The Board also has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. Id. at 367; Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). The analysis herein has been undertaken with this heightened duty in mind. Analysis The Appellant has asserted the Veteran had a bilateral leg condition due to multiple parachute jumps while being a rigger in service. The available service treatment records include a December 1946 separation examination in which the musculoskeletal defects included only a problem with the left elbow. Physical examination of the feet was normal. VA progress notes show the Veteran complained of swelling in his lower extremities. In a July 2012 VA progress note, the Veteran denied lower extremity swelling, as well as muscle weakness and joint pain. Upon physical examination, the examiner noted edema of the bilateral lower extremities. A July 2014 VA progress note indicated increased edema possibly due to chronic obstructive pulmonary disease (COPD) or heart failure. In August 2014 VA progress notes, the Veteran complained of bilateral lower extremity edema mid-shin, improved overnight. The examiner reported the bilateral lower extremity swelling has followed the same time course as the dyspnea on exertion in that it was first noticeable in May just in the ankles and it the past three to four weeks has progressed to above the knees. He was placed on Lasix and his symptoms improved. Initially, the Board notes that the Veteran had a diagnosis of lower extremity edema. The Board therefore finds that the evidence demonstrates a current disability, meeting the first requirement for the establishment of service connection. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). However, the Board finds that the most persuasive evidence does not indicate that the Veteran incurred any lower extremity disorder during service. The Board recognizes that the Veteran was competent to report current symptoms, including rashes, which are capable of lay observation. Layno v. Brown, 6 Vet. App. 465 (1994). Crucially, however, the Veteran's service treatment records indicate no suggestion of treatment for or complaints of symptoms related to a lower extremity disorder. The totality of evidence indicates that the Veteran's lower extremity edema was not incurred during service or causally due to service. In a July 2015 letter, provided during a June 2016 Board hearing, the Veteran's son stated that he remembered how his dad was not physical able to get out and practice with him. He knew that his father would fall if he tried to run and he could not make a cut to change directions either. He stated that when hew as in trouble, he just ran way knowing his father could not chase him. During a June 2016 Board hearing, the Veteran's representative reported the Veteran spent seven months as a rigger in service, and that during that time he was on jump status and could have been injured while performing jump airborne duty. The Appellant stated that the bilateral leg edema could have been from stress fractures, a muscle strain, or some other injure from that time. She stated that he would try to run after her, and would trip and fall. She asked him why, and he stated it was something that happened when he was in the military. The November 2017 VA opinion of record indicates that the Veteran's bilateral leg edema was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner noted that the claim is that the Veteran sustained bilateral leg edema from his activity as a parachute rigger, as part of his duties was to perform multiple parachute jumps from aircraft. The examiner recognized the medical records were destroyed in the St. Louis archives fire, but his separation evaluation is available, dated in December 1946 which showed no lower extremity disorder. The examiner referred to the June 2016 Board hearing transcript and July 2015 letter from the Veteran's son. The examiner also noted that the Veteran died of multi-organ failure, with respiratory failure and congestive heart failure (CHF) per his death certificate. Although, there is no record showing when his bilateral leg edema began, however, it is noted in July 2014 that the Veteran had edema and was thought to be due to COPD or heart failure. The examiner reported it appears the Veteran's bilateral leg edema was due to right-sided heart failure due to his pulmonary hypertension secondary to idiopathic pulmonary fibrosis, and was present from at least 2012 when he made his original claim. The examiner stated there is no evidence that his leg edema was caused from a stress fracture or muscle strain during his work as a parachute rigger in the military. As stated previously, the Board recognizes that the Veteran and his family are competent to report symptoms, including falls, which are capable of lay observation. Layno v. Brown, 6 Vet. App. 465 (1994). Similarly, the Veteran was competent to report a history of lower extremity symptomatology since his period of active service. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (2007). Moreover, his reported symptoms cannot be discredited by the mere absence of contemporaneous clinical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (2006). Nevertheless, those providing lay testimony have not been shown to have the requisite clinical training to provide an opinion on diagnosis or causation of his lower extremity edema or any other lower extremity disorder. Bostain v. West, 11 Vet. App. 124 (1998); Routen v. West, 142 F.3d. 1434 (Fed. Cir. 1998); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The question of whether a lower extremity disorder was a continuing disease process of symptoms claimed in service or represents a separate and distinct disease process resulting from post-service triggers is medically complex. Thus, the lay assertions of record from the Veteran and from other family members, to include the Appellant, standing alone, are insufficient to establish a nexus between the leg disability diagnosed after service and the Veteran's time in service so as to warrant a grant of service connection in this instance. The Board does not dispute the fact that the Veteran had a lower extremity disorder prior to his death. However, because of the absence of a medical nexus between his lower extremity edema diagnoses and his time in service, the Board finds that the evidence is against a grant of service connection. The Board has carefully and sympathetically considered the claim on appeal, but unfortunately, cannot find a basis on which to grant the appeal. In sum, the competent medical evidence weighs against a finding that the Veteran's lower extremity disorder was due to service. As such, the preponderance of the evidence is against the claim and the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to service connection for a lower extremity disorder must be denied. ORDER Entitlement to service connection for a bilateral leg condition, based on substitution of the Appellant, is denied. ____________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs