Citation Nr: 21062257 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 14-17 110 DATE: October 6, 2021 ORDER Entitlement to service connection for a right leg disability is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran does not have a current right leg disability. 2. The Veteran is not service-connected for any disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right leg disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1968 to June 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. The Board remanded the claims on appeal in November 2017, September 2018, and June 2021. 1. Entitlement to service connection for a right leg disability is denied. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Upon review of the evidence in the record, the Board finds that service connection for a right leg disability is not warranted because a preponderance of the competent and credible evidence indicates that the Veteran has not been diagnosed with a right leg condition at any point just prior to or during the appeal period beginning in February 2012. In this regard, the March 2018 VA examiner, who specifically considered the Veteran's reported history, medical treatment records, and after conducting a physical examination and measurements (noting that both legs measured 89 centimeters from the anterior superior iliac spine to the medial malleolus), determined that the Veteran did not have a leg length discrepancy or a currently diagnosed right leg disability based on the totality of the pertinent evidence of record. See also July 2019 VA opinion. Similarly, following an in-person examination and review of the record, the February 2021 VA examiner also found that the Veteran's leg lengths measured 89 centimeters on both sides and determined he did not have a leg length discrepancy or any other current right leg disability. The examiner explained that the Veteran had a leg length discrepancy "on appearance," which could be due to many factors such as pelvic obliquity or posture, but not upon actual measurement. Furthermore, there is no indication of right leg pain that reaches the level of a functional impairment of earning capacity demonstrated in the in the competent and credible evidence of record, despite the Veteran's complaints. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). To the extent that any functional impairment has been identified, such impairment has been attributed to a diagnosed right knee disability, not a right leg disability. While the Veteran is competent to report his observations of symptoms, such as legs that appear to be different lengths, he is not competent to diagnosis an underlying right leg disability or a leg length discrepancy, as the determination of the presence of such a condition requires medical expertise and clinical measurement. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this regard, the Board denied service connection for a right knee disability in a June 2021 decision. Moreover the Veteran was advised in that decision as to the Board's finding of a lack of a current right leg disability, and provided the Veteran with an opportunity to respond; however, no statement was subsequently furnished by the Veteran. Accordingly, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a right leg disability based on lack of a current disability. Thus, as the first element of service connection is not met at any point just prior to or during the appeal period, the claim fails on this basis alone. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (in the absence of proof of present disability there can be no successful claim); see also Degmetich v. Brown, 104 F.3d 1328 (1997) (also interpreting 38 U.S.C. § 1131 as requiring the existence of a present disability for VA compensation purposes). 2. Entitlement to a TDIU is denied. A TDIU is warranted if the evidence shows that a veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability or disabilities. 38 C.F.R. § 4.16. The Veteran is not service-connected for any disability. Therefore, he is ineligible for consideration of TDIU. As such, entitlement to a TDIU is denied as a matter of law. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.S. Mahoney 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.