Citation Nr: 0002458 Decision Date: 01/31/00 Archive Date: 02/02/00 DOCKET NO. 95-37 898 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for a left leg disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Scott Craven INTRODUCTION The veteran had active military service from February 1971 to February 1975. The Board of Veterans' Appeals (Board) initially received this case on appeal from a May 1994 decision of the RO, which, in part, granted service connection for a scar of the left anterolateral calf and denied service connection for impairment of the left leg apart from the scar. The veteran subsequently timely perfected an appeal as to the latter issue. In January 1997 and July 1998, the Board remanded the case for further development. FINDING OF FACT No competent evidence has been presented to show that the veteran currently has a left leg disorder due to his service- connected scar or other disease or injury incurred in or aggravated by service. CONCLUSION OF LAW A well-grounded claim of service connection for a left leg disorder, other than a service-connected scar, has not been presented. 38 U.S.C.A. §§ 1110, 1131, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. § 3.303, 3.310 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION I. Factual Background A careful review of the service medical records shows that, on entrance examination in February 1971, the veteran's lower extremities were reported to be clinically normal. In May 1973, he was reported to have sustained a laceration on the left knee after falling in a parking lot. On discharge examination in February 1975, the veteran was reported to have a two inch scar on the left calf. His lower extremities were reported to be otherwise clinically normal. The veteran indicated that he had never had swollen or painful joints, lameness, paralysis or a "trick" or locked knee. In April 1985, private medical records from Lovelace Medical Center reported that the veteran had had many skin infections on his face, legs and back. He was reported to have no joint abnormalities and full range of motion. The veteran was diagnosed, in part, with Type I diabetes mellitus. In August 1989, private medical records from Ochsner Clinic reported that evaluation of the veteran was negative for leg pain. He was assessed with type II diabetes mellitus. In January 1993, a VA outpatient treatment record reported that the veteran had an old scar on the left leg that had slowly become progressively discomfortable over the previous six years. The veteran was also reported to have been diagnosed with diabetes mellitus six years before. In January 1993, a VA outpatient treatment record revealed that the veteran had slowly progressive discomfort at the site of a left lateral leg scar where the veteran indicated that he had been struck by bamboo in Vietnam. The left leg was reported to have subjective hyperesthesia of the scar on the lateral aspect as well as the regions above and below. The veteran was assessed with a painful scar. The examiner indicated that the veteran had questionable shrapnel in his leg from Vietnam. In January 1993, a VA radiology report of the left leg indicated that the veteran had a questionable clinical history of shrapnel in his left lower leg from Vietnam. The veteran's left tibia and fibula were reported to be normal and no metal was reported to be seen. In April 1993, a VA Agent Orange examination reported that the veteran's extremities revealed positive range of motion with no edema or deformity. On a VA skin examination in December 1993, the veteran was reported to have a small scar on his left upper leg from an incision and drainage of a boil. The impression was that the veteran had a recurrent folliculitis that may have been aggravated by his underlying diabetes. On a VA scars examination in December 1993, the veteran was reported to have had his left leg perforated in service by a bamboo stick. He was reported to have a scar on the left lower leg that had remained painful since service. The veteran reported that he had muscle spasms in the left leg secondary to the scar that sometimes caused his leg to give way. An examination revealed a scar on the anterolateral side of the left leg measuring 2 inches x 1/2 inch that had been caused by a bamboo stick. The scar was reported to be very tender on palpation. The veteran was reported to have full range of motion of the left knee and left ankle. He was diagnosed, in part, with residuals of leg wound of the left lower leg with moderate residual symptoms. On a VA neurological examination in January 1994, the veteran's gait, including heel-toe, tandem and regular movements were reported to be normal. Motor, sensory, deep tendon reflexes and fine and rapid alternating movements were reported to be normal and symmetrical throughout. The only exception was reported to be a patch of decreased sensation on the left aspect of the lateral leg where he had a wound. During a hearing before this Member of the Board in August 1996, the veteran reported that, in addition to his scar on the left leg, his leg would actually go out on him. He indicated that his muscles were either malfunctioning or not functioning properly. He reported that he had a high degree of instability in terms of stumbling and he could not maintain an adequate pace for a certain duration of time. He reported that his left leg impairment was below the knee and that he did not have any impairment above the knee. He reported that he wore a brace and that he sometimes used a cane. He indicated that he had no additional treatment records on the left leg. He reported that he thought he had nerve damage in his leg after stepping on a bamboo stake in service. On a VA scars examination in August 1998, the veteran was reported to have sustained a laceration on the lower lateral side of the left leg from a bamboo stick while in service. He was reported to have had chronic pain in the left leg since service and to have numbness in the region of the scar and intermittent numbness on the left leg. He was also reported to have developed a symptom in which his leg would give way several times a week and cause him to fall. The veteran was reported to have been diagnosed with diabetes mellitus in 1985. An examination revealed a longitudinal scar on the lateral side of the left lower leg measuring 2 inches x 1/2 inch. The scar was reported to be slightly depressed, nontender, entirely anesthetic and slightly adherent to underlying tissue. There was reported to be no evidence of ulceration, breakdown, burn, inflammation, edema or keloid formation and there was no significant tissue loss. The veteran was reported to show limitation of function in that his left leg would give way and he walked with a slightly asymmetrical gait. He was reported to have a full range of motion in both knees with some pain in the left knee and surrounding muscles upon full passive movement of the knee. There was reported to be some loss of tactile sensation to pinprick on the left leg as compared to the right leg. Deep tendon reflexes were reported to be present and symmetrical. The veteran was reported to be unable to fully squat the left leg because of pain around the knee and in the muscle. The examiner indicated that the veteran's symptomatology was likely related to degenerative joint disease and/or diabetes. The veteran was reported to have been scheduled for an electromyograph and x-rays, but he had failed to keep his appointments. The veteran was diagnosed with a well-healed scar on the left leg. The examiner reported that it was unlikely that the well-healed scar had caused or aggravated any left leg disability and that there was no other disability attributable to the service-connected injury. II. Analysis Service connection may be granted for a disability resulting from a disease or injury which was incurred or aggravated during active duty. 38 U.S.C.A. §§ 1110, 1131 (West 1991 & Supp. 1999); 38 C.F.R. § 3.303 (1999). That an injury or disease occurred in service alone is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (1999). The regulations also provide that 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) (1999). Service connection may also be granted on a secondary basis if a claimed disability is found to be proximately due to or is the result of a service-connected disability. 38 C.F.R. § 3.310 (1999); Harder v. Brown, 5 Vet. App. 183, 187 (1993). Such secondary service connection pursuant to 38 C.F.R. § 3.310(a) may be granted for a disability to the extent that it is chronically made worse/aggravated by a service- connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). The threshold question to be answered is whether the veteran has presented a well-grounded (i.e., plausible) claim. If he has not, the claim must fail and there is no further duty to assist in the development of the claim. 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1999); Murphy v. Derwinski, 1 Vet. App. 78 (1990). In order to show that a claim for service connection is well grounded, there must be competent evidence of (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the in-service injury or disease and the current disability, or between a service-connected disability and the current disability. See Caluza v. Brown, 7 Vet. App. 498 (1995). Although the claim need not be conclusive, it must be accompanied by evidence, not just allegations, in order to be considered well grounded. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). In a claim of service connection, this generally means that evidence must be presented which in some fashion links a current disability to a period of military service or to an already service-connected disability. 38 U.S.C.A. §§ 1110, 1131 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.310 (1999); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Montgomery v. Brown, 4 Vet. App. 343 (1993). The evidence submitted in support of the claim is presumed to be true for purposes of determining whether the claim is well grounded. King v. Brown, 5 Vet. App. 19, 21 (1993). The veteran contends, in essence, that he currently has a left leg disorder that is due to his service-connected left leg scar or other disease or injury incurred in or aggravated by service. He claims that he has muscular and neurological damage in his left leg due to an injury he sustained after stepping on a bamboo stake in service. However, he has submitted no competent evidence to support his lay assertions. The service medical records show that, on discharge examination in February 1975, the veteran was reported to have a two inch scar on the left calf; however, his lower extremities were reported to be otherwise clinically normal. In January 1993, VA outpatient treatment records revealed that the veteran's left leg scar had become progressively discomfortable over the previous six years. He was assessed with a painful scar. A VA radiology report verified that he did not have shrapnel in his left leg and his left tibia and fibula were reported to be normal. On VA examination in December 1993, the veteran was reported to have a scar on the anterolateral side of the left leg that was very tender on palpation; however, he was reported to have full range of motion of the left knee and left ankle. Also, on a VA neurological examination in January 1994, the veteran was reported to be neurologically normal, except for a patch of decreased sensation on the lateral aspect of the left leg where he had a wound. On VA examination in August 1998, the veteran was reported to have a nontender scar on the lateral side of the left lower leg. He was reported to show limitation of function in his left leg in that it would give way and he walked with a slightly asymmetrical gait. He was reported to have full range of motion of the left knee, but he had some pain in the left knee and surrounding muscles upon full passive movement of the knee. The veteran was also reported to have some loss of tactile sensation to pinprick on the left leg and he was unable to fully squat because of pain around the left knee and in the muscle. The veteran was diagnosed with a well- healed scar of the left leg. The Board is cognizant of the veteran's assertions regarding his left leg disorder. However, while the veteran has been reported to have left knee pain and loss of tactile sensation to pinprick on the left leg, he has presented no objective evidence of a nexus between the currently demonstrated symptomatology and an in-service disease or injury. In addition, he has presented no objective evidence demonstrating that he has a left leg disability that was chronically made worse or aggravated by his service-connected scar. See 38 C.F.R. § 3.310 (1999); Allen, supra. In fact, the examiner on the most recent VA examination reported that the veteran's left leg symptomatology was likely related to degenerative joint disease and/or diabetes and that it was unlikely that his well-healed scar had caused or aggravated any left leg disability. The examiner also reported that the veteran did not have any other disability attributable to his service-connected injury. Furthermore, there is no demonstrated continuity of symptomatology of a left leg disorder, other than the left leg scar, since service. In fact, in April 1985, private medical records from Lovelace Medical Center revealed that the veteran had no joint abnormalities and had full range of motion. Also, in August 1989, private medical records from Oschner Medical Center revealed that he was negative for leg pain. Lay assertions concerning questions of medical diagnosis or causation cannot constitute competent evidence sufficient to render a claim well grounded. Grottveit v. Brown, 5 Vet. App. 91 (1992); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Absent competent evidence of linkage of a current disability to a service-connected disability or other disease or injury in service, the claim of service connection for a left leg disorder must be denied as not well grounded. Caluza, supra. In claims that are not well grounded, VA does not have a statutory duty to assist the veteran in developing facts pertinent to his claim. VA, however, may be obligated under 38 U.S.C.A. § 5103(a) (West 1991 & Supp. 1999) to advise a veteran of evidence needed to complete his application. This obligation depends upon the particular facts of the case and the extent to which the Secretary of VA has advised the veteran of the evidence necessary to be submitted with a VA benefits claim. Robinette v. Brown, 8 Vet. App. 69 (1995). The Board finds that a remand is not required in this case. The veteran has not put VA on notice that competent evidence exists that supports his claim that he currently has a left leg disorder due his service-connected scar or other disease or injury incurred in or aggravated by service. Consequently, the RO has met its burden under 38 U.S.C.A. § 5103(a) (West 1991 & Supp. 1999) by informing the veteran of the evidence necessary to complete his application for benefits. By this decision, the Board is informing the veteran of the evidence necessary to make his claim well grounded. ORDER Service connection for a left leg disorder, other than a service-connected scar, is denied, as a well-grounded claim has not been submitted. D. C. Spickler Member, Board of Veterans' Appeals