Citation Nr: 21003025 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 17-47 371 DATE: January 19, 2021 ORDER The appeal of the claim for service connection for impairment of sphincter control with fecal leakage, to include as secondary to diabetes, has been withdrawn; the appeal is dismissed. The appeal of the claim for service connection for frequent urination and leakage, to include as secondary to diabetes, has been withdrawn; the appeal is dismissed. Entitlement to service connection for right leg arteriosclerosis obliterans (poor right leg circulation), to include as secondary to diabetes, is denied. FINDINGS OF FACT 1. On September 15, 2020, prior to the announcement of a decision in the appeal of the claim for service connection for impairment of sphincter control with fecal leakage, to include as secondary to diabetes, the Board received notification from the Veteran (the Veteran’s authorized representative) that a withdrawal of this appeal is requested. 2. On September 15, 2020, prior to the announcement of a decision in the appeal of the claim for service connection for frequent urination and leakage, to include as secondary to diabetes, the Board received notification from the Veteran’s representative that a withdrawal of this appeal is requested. 3. The Veteran does not have a current diagnosis of poor right leg circulation. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal for service connection for impairment of sphincter control with fecal leakage, to include as secondary to diabetes, by the Veteran’s authorized representative, have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 2. The criteria for withdrawal of an appeal for service connection for frequent urination and leakage, to include as secondary to diabetes, by the Veteran’s authorized representative, have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 3. The criteria for service connection poor right leg circulation have not been met. §§ 1110, 1131; 38 C.F.R. §§ 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1967 to August 1989. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2016 rating decision of the Department of Veterans Affairs (VA) Veterans Benefits Administration (VBA) Regional Office (RO) in Muskogee, Oklahoma. In April 2019, the Veteran and his spouse, J.K., testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. In September 2019, the Board remanded this matter to the RO for further evidentiary development. Since this Board remand, the Veteran has been granted service connection for peripheral neuropathy of the right and left lower extremities, and left leg arteriosclerosis obliterans in the October 2019 and July 2020 rating decisions. As this constitutes as a grant of full benefits sought, these issues are no longer before the Board on appeal. Pertinently, the Board notes that in a September 2020 correspondence, the Veteran asserts that in “regards to BVA Decision and Remand Order, the left leg venous insufficiency [(poor left leg circulation)] award effective date is the date of the Ultrasound Diagnostic Test[,] even though the claim has been on continuous appeal since 2016. Here, as the Veteran appears to challenge the effective date of the grant of this award of service connection for poor left leg circulation, this is a separate issue that is not before the Board. Rather, his challenge to the effective date of the award of the claim for service connection for poor left leg circulation should be raised by using the proper Notice of Disagreement form (VA Form 10182), within the requisite time period for submitting a notice of disagreement to the rating decision. Dismissal of Two Service-Connection Claims on Appeal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board announces a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his or her authorized representative. Id. In the present case, the Veteran’s authorized representative has withdrawn the appeal of the claims for: (1) service connection for impairment of sphincter control with fecal leakage, to include as secondary to diabetes; and (2) service connection for frequent urination and leakage, to include as secondary to diabetes. Hence, there remains no allegations of errors of fact or law for appellate consideration, as it pertains to these two issues only. Accordingly, the Board does not have jurisdiction to review the appeals and they are dismissed. Service Connection for Poor Right Leg Circulation Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. That determination requires a finding of a current disability that is related to an injury or disease in service. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Generally, to establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313(Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Alternatively, a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Thus, secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Veteran asserts entitlement to service connection for a disability manifested by poor right leg circulation, as secondary to his type 2 diabetes. The medical evidence confirms that the Veteran is service-connected for type two diabetes. However, there is no evidence of a current disability of poor right leg circulation. At his videoconference hearing, the Veteran’s spouse, J.K., testified that he had poor circulation in his legs. See September 2019 Videoconference Hearing Transcript. After, he was afforded a VA examination for artery and vein conditions in the leg, in July 2020, a VA examiner determined that the Veteran did not have a poor right leg circulation diagnosis. The VA examiner explained that although a June 2019 ultrasound determined that the Veteran had left leg venous insufficiency, normal ultrasound duplex was found for the right leg; and that ABI results for the right leg, from this July 2020 VA examination, were within normal limits. To prevail on the issue of service connection, a current disability must have existed on or after the date of application for that disability. See 38 U.S.C. § 1110; see also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); see, McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (agreeing that the requirement that a claimant have a current disability before service connection may be awarded is satisfied when a claimant has a disability at the time a VA claim is filed or during the pendency of that claim.). In this case, however, the evidence does not show a current diagnosis of poor right leg circulation. Nonetheless, the Veteran asserts that his claim for poor right leg circulation was denied on the basis of no evidence of a current diagnosis, despite evidence of a treatment record which reflects diagnostic results of a Bilateral Ultrasound for Duplex Venous Legs, which includes an interpretation summary that noted findings, including and not limited to, “probable right superficial venous insufficiency”, “bilateral venous insufficiency in the right saphenous vein and the left common femoral and Mid SF vein.” The Veteran further asserts that there is an inconsistency as the same medical diagnostic tests were referenced with opposite decisions and the supplemental statement of the case does not “clearly evaluate all the medical records, “which is in contrast to the Rating Decision that granted the left leg.” To the contrary, even though the Veteran asserts that the SSOC does not “clearly evaluate all medical records”, the July 2020 VA medical opinion, which determined that the Veteran does not have poor right leg circulation relied on the same medical evidence that the Veteran references. As a matter of fact, the Veteran references similar findings as the June 2019 ultrasound. However, in that June 2019 ultrasound, the results rendered for the right leg were distinct from the results rendered for the left leg. For example, the findings expressly noted that the “right lower venous study appears normal”, whereas for the left leg, findings, included and were not limited to, indications that “left popliteal vein appear abnormal . . .” Additionally, at the July 2020 VA examination, the VA examiner determined that the Veteran was only diagnosed with left leg venous insufficiency. Thus, there is no inconsistency between the grant of service connection for poor left leg circulation and the denial of the claim for service connection for poor right leg circulation. Furthermore, the left leg is a separate, distinct extremity from the right leg. Thus, as the evidence does not show a current disability manifested by poor right leg circulation, this service connection claim must be denied. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (holding that “[i]n the absence of proof of a present disability there can be no valid claim.”). M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Vanessa-Nola Pratt The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.