Citation Nr: 1814985 Decision Date: 03/12/18 Archive Date: 03/19/18 DOCKET NO. 14-15 349 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for a right leg disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD I. Umo, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1970 to February 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Veteran testified at a June 2015 Board hearing before a Veterans Law Judge that is now retired. The Veteran was given the opportunity to have an additional Board hearing, but indicated in June 2017 correspondence that he did not want another hearing. The appeal was most recently before the Board in December 2016 at which time the Board denied service connection for a bilateral foot disability and remanded the service connection claim for a right leg disability for readjudication by the agency of original jurisdiction. That readjudication having been completed, the case is once again before the Board. FINDING OF FACT The most competent and probative evidence of record establishes that the Veteran's pre-existing right leg disability, which was noted at service entrance, underwent no increase in severity during service. CONCLUSION OF LAW The criteria for service connection for a right leg disability are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duty 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. §§ 5100, 5102, 5103, 5103A and 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The duty to notify has been met. Neither the Veteran, nor his representative, has alleged prejudice with regard to notice. The Federal Circuit Court of Appeals has held that "absent extraordinary circumstances ... it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran ...." Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In light of the foregoing, nothing more is required. The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C. §§ 5103, 5103A (2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2017), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The record reflects that all available records pertinent to the claim have been obtained. The Veteran has not identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claims. Service Connection Claims The Veteran asserts that he had a right leg disability prior to service that was aggravated by training activities during service. He further maintains that he was provided with ill-fitting boots during service, which altered his gait and in turn worsened his right leg condition. See November 2017 Appellate Brief. Service connection is granted for disability resulting from disease or injury that was incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). Additionally, 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). Entitlement to service connection benefits is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the medical "nexus" requirement). See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); 38 C.F.R. § 3.303(a) (2017). A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for active service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). A pre-existing injury or disease will be considered to have been aggravated by active military, naval or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying disability, as contrasted to the symptoms of that disability, has worsened. See Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Clear and unmistakable evidence (obvious and manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). In considering the effect of section 1111 on claims for service-connected disability, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has stated that the government may show a lack of aggravation by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. Wagner v. Principi, 370 F.3d 1089, 1094-96 (Fed. Cir. 2004) (citing 38 U.S.C. § 1153). Aggravation may not be conceded where the disability underwent no increase in severity during service based on all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b), Falzone v Brown, 8 Vet App 398, 402 (1995). Analysis At the outset, the Board finds that the Veteran was noted to have a history of a right tibia fracture on service entrance, and the examiner did not mark that the lower extremities were normal. Because the Veteran's right leg disability was noted at service entrance, the presumption of soundness does not apply. The Board must therefore determine if there was any worsening of the disability during service, and, then, whether this constitutes an increase, permanent in nature, in the disability. The primary question is whether the pre-existing right leg disability increased in severity during active service. If so, then the presumption of aggravation attaches and may only be rebutted by clear and unmistakable evidence that the increase in severity was due to the natural progression of the disability. Service treatment records are negative for any complaints or treatment of any right leg disability. The Board finds it significant that at his January 1972 discharge examination, the Veteran's right lower extremity was without complaint or other mention of a right leg disability. To the contrary, the remarks for the examination stated that the Veteran was in good health with no changes since last physical. Thus, the Board finds the most probative evidence of record establishes that the Veteran's pre-existing right leg disability underwent no increase in disability during service. The Board notes that VA treatment records do not document complaint or treatment for the Veteran's right leg until November 2014, which is more than forty years after the Veteran's discharge from service. Moreover, in the May 2013 VA examination, the VA physician opined that the Veteran's right leg disability was not aggravated beyond its natural progression by an in-service injury or event. The physician reasoned that there is no objective medical evidence of aggravation of the Veteran's healed tibial fracture beyond its natural progression by an in-service injury or event. The Board finds the VA physician's opinion to be highly probative. The physician examined the Veteran, reviewed the medical and lay evidence, and provided an opinion with an adequate rationale. In addition, as complaint or treatment of the right leg disability was not shown for many decades after the Veteran's period of service, this weighs against a claim that it was aggravated by service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). In addition, at no time did any treating provider relate the Veteran's disability to his period of service. The Board acknowledges that laypersons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). During the May 2013 VA examination, the Veteran reported that he developed right foot pain because of strenuous physical training activities during service such as prolonged running and hiking in basic training, which he claimed to have been causally related to aggravation of his right leg condition. Likewise, the Veteran testified that his right leg was aggravated during service, but did not detail any symptoms associated with the purported aggravation of his right leg disability. See June 2015 Hearing Testimony. Although the Veteran is competent and credible to report on his symptoms, the Board affords his opinion little probative value. As discussed above, the Veteran did not complain of or receive treatment for his purported right foot pain or any pain associated with his right leg during service. Even more, the medical evidence of record fails to show a worsening of symptoms associated with the Veteran's right leg disability. Therefore, the Veteran's opinion that service aggravated his right leg disability is given little probative value. In sum, after consideration of the lay and medical evidence of record, the Board finds that the most probative evidence indicates that the Veteran's right leg disability was noted on his entrance examination, and did not increase in disability during service. Accordingly, service connection for his right leg disorder is not warranted. In reaching the conclusions above, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Service connection for a right leg disability is denied. ____________________________________________ Donnie R. Hachey Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs