Citation Nr: 0603258 Decision Date: 02/06/06 Archive Date: 02/15/06 DOCKET NO. 04-19 051 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a lung disorder, claimed as due to asbestos exposure in service. 2. Entitlement to service connection for a heart condition, claimed as due to asbestos exposure in service. 3. Entitlement to service connection for a bilateral foot condition. 4. Entitlement to service connection for a bilateral ankle condition. 5. Entitlement to service connection for a back condition. REPRESENTATION Veteran represented by: AMVETS ATTORNEY FOR THE BOARD S. Bush, Associate Counsel INTRODUCTION This matter is before the Board of Veterans' Appeals (the Board) on appeal of a January 2003 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio (the RO). Procedural history The veteran served on active duty in the United States Army from August 1954 to August 1956. In November 2001, the veteran filed claims of entitlement to service connection for a back condition, a heart condition, a lung condition, a bilateral foot condition, a bilateral ankle condition, a shoulder condition, asbestos related disease and cold injury residuals. These claims were denied in the above-mentioned January 2003 RO rating decision. The veteran initiated an appeal of this decision and requested de novo review of his claim by a Decision Review Officer (DRO). The DRO issued a statement of the case (SOC) in March 2004 that continued the previous denial of the claims. The veteran's appeal was perfected with the timely submission of his substantive appeal (VA Form 9) in May 2004. Issues not on appeal In addition to the disabilities listed above, in November 2001 the veteran filed claims of entitlement to service connection for a shoulder condition, "asbestos related disease" and cold injury residuals. Those claims were also denied in the January 2003 rating decision. The veteran did not appeal those issues, although as discussed elsewhere in this decision he claims that the heart and lung conditions are due to asbestos exposure. FINDINGS OF FACT 1. The competent medical evidence of record does not indicate that a medical nexus exists between the veteran's military service and his currently diagnosed lung problems. 2. The competent medical evidence of record does not indicate that a medical nexus exists between the veteran's military service and his currently diagnosed heart conditions. 3. The competent medical evidence of record does not support a finding that a bilateral foot disability currently exists. 4. The competent medical evidence of record does not support a finding that a bilateral ankle disability currently exists. 5. The competent medical evidence of record does not support a finding that a back disability currently exists. CONCLUSIONS OF LAW 1. A lung disorder was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2005). 2. A heart condition was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2005). 3. A bilateral foot disability was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2005). 4. A bilateral ankle disability was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2005). 5. A back disability was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In the interest of clarity, the Board will first discuss certain preliminary matters. The issues on appeal will then be analyzed and decisions rendered. The Veterans Claims Assistance Act of 2000 The Board has given consideration to the Veterans Claims Assistance Act of 2000 (the VCAA) [codified as amended at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107]. The VCAA eliminated the former statutory requirement that claims be well grounded. Cf. 38 U.S.C.A. § 5107(a) (West 1991). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate claims for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). Regulations implementing the VCAA have been enacted. See 66 Fed. Reg. 45,630 (Aug. 29, 2001) [codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2005)]. The VCAA is applicable to all claims filed on or after the date of enactment, November 9, 2000, or filed before the date of enactment and not yet final as of that date. The VCAA is accordingly applicable to this case. See Holliday v. Principi, 14 Vet. App. 280 (2000) [the Board must make a determination as to the applicability of the various provisions of the VCAA to a particular claim]. The Board has carefully considered the provisions of the VCAA and the implementing regulations in light of the record on appeal, and for reasons expressed immediately below finds that the development of the issues has proceeded in accordance with the provisions of the law and regulations. The VCAA alters the legal landscape in three distinct ways: standard of review, notice and duty to assist. The Board will now address these concepts within the context of the circumstances presented in this case. Standard of review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2005). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Notice The VCAA requires VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claims. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002) [a letter from VA to an appellant describing evidence potentially helpful to the appellant but not mentioning who is responsible for obtaining such evidence did not meet the standard erected by the VCAA]. After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of the VCAA have been satisfied with respect to the issues on appeal. The veteran was informed of the relevant law and regulations pertaining to his service connection claims in the March 2004 SOC. Specifically, the March 2004 SOC detailed the evidentiary requirements for service connection claims pursuant to 38 C.F.R. § 3.303. Crucially, the RO informed the veteran of VA's duty to assist him in the development of his claims in a letter dated November 27, 2001, whereby the veteran was advised of the provisions relating to the VCAA. Specifically, he was advised that VA would assist him in getting things such as medical records, employment records, or records from other Federal agencies. The veteran was told that records from the VA Medical Center (VAMC) in Chillicothe had already been requested on his behalf. He was also informed that VA would, on his behalf, make reasonable efforts to obtain relevant private medical records not held by a Federal agency as long as he completed a release form for such. The veteran was instructed: "If there are private medical records that would support your claim, you can complete the enclosed Form 21- 4142, Authorization and Consent to Release Information to the Department of Veterans Affairs, and we will request those records for you. You can get these records yourself and send them to us as this would expedite your claim." The November 2001 VCAA letter specifically informed the veteran that "you must give us enough information about your records so that we can request them from the agency or person who has them. It's still your responsibility to support your claim with appropriate evidence" [Emphasis in original]. The veteran was also advised in the November 2001 VCAA letter that a medical examination would be scheduled if necessary to make a decision on his claims. Finally, the Board notes that the November 2001 VCAA letter specifically requested the veteran to: "Send the information describing additional evidence or send the evidence itself." The Board believes that this request complies with the requirements of 38 C.F.R. § 3.159 (b) in that it informed the veteran that he could submit or identify evidence other than what was specifically requested by the RO. Because there is no indication that there exists any evidence which could be obtained which would have an effect on the outcome of this case, no further VCAA notice is necessary. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) [VCAA notice not required where there is no reasonable possibility that additional development will aid the veteran]. In short, the record indicates that the veteran received appropriate notice under 38 U.S.C.A. § 5103 and Quartuccio. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate claims for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. The law provides that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claims. An examination is deemed "necessary" if the record does not contain sufficient medical evidence for VA to make a decision on the claims. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2005). The Board finds that reasonable efforts have been made to assist the veteran in obtaining evidence necessary to substantiate his claims, and that there is no reasonable possibility that further assistance would aid in substantiating them. In particular, the RO has obtained reports of VA and private medical treatment of the veteran, which will be discussed below. The veteran's service medical records are not associated with the claims folder, and there is indication from the National Personnel Records center (NPRC) that they may have been destroyed in a fire on July 12, 1973. The Board is cognizant of Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999), wherein the Court elaborated on the VA's responsibility to obtain a veteran's service medical records. The Board finds, however, that there is no reasonable possibility that the missing records may be located or recovered, and thus no useful purpose would be served in remanding this matter for more development. See Hayre [VA's efforts to obtain service department records shall continue until the records are obtained or unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile]. In this case, the RO has attempted to locate the veteran's service medical records a number of times. The RO submitted requests to the NPRC in November 2001 and July 2002, asking for all available military medical and dental records for the veteran. The NPRC responded that the service medical records were probably destroyed in the above-mentioned fire. In December 2003, the veteran provided the RO with additional information concerning his whereabouts in service. The RO then specifically requested in February 2004 that the NPRC provide any type of clinical documents and/or morning reports from Fort Rucker and Fort Benning pertaining to the veteran. The NPRC again responded that no records were available. The Board observes that, where records are unavailable, "VA has no duty to seek to obtain that which does not exist." See Counts v. Brown, 6 Vet. App. 473, 477 (1994); Porter v. Brown, 5 Vet. App. 233, 237 (1993). See also Hayre, supra [VA's efforts to obtain service department records shall continue until the records are obtained or unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile]. So it is in this case. The Board points out that in May 2003, the veteran submitted a long list of private physicians who treated him for disabilities of the lungs and chest post-service. The RO wrote to the veteran in November 2003, asking that he provide signed consent forms for these private physicians so that the RO could request these records on his behalf. The veteran did not comply with this request. The veteran is still responsible for supporting his claims with appropriate evidence. See 38 U.S.C.A. § 5107(a), supra. Without his assistance, it would be an exercise in futility for the RO to again attempt to associate these records with the claims folder. As the Court has stated: "VA's . . . . 'duty to assist' is not a license for a 'fishing expedition' to determine if there might be some unspecified information which could possibly support a claim." See Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992). The duty to assist also includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claims. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2005). A medical examination is unnecessary in this case, however, because there is no objective evidence of asbestos exposure in service with regards to the lung and heart claims; nor is there evidence of current disability with regards to the back, bilateral foot and bilateral ankle claims. In the absence of such evidence, obtaining a medical nexus opinion would be futile. The Court has held on a number of occasions that a medical opinion premised upon an unsubstantiated account is of no probative value. See, e.g., Reonal v. Brown, 5 Vet. App. 458, 460 (1993); Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996); Swann v. Brown, 5 Vet. App. 229, 233 (1993). Obtaining a medical nexus opinion under the circumstances presented in this case would be a useless exercise. In so concluding, the Board finds that the circumstances here presented differ from those found in Charles v. Principi, 16 Vet. App. 370 (2002), in which the Court held that VA erred in failing to obtain a medical nexus opinion where evidence showed acoustic trauma in service and a current diagnosis of tinnitus. Significantly, in this case there is no objective evidence of in-service asbestos exposure with regards to the lung and heart claims or current disability with regards to the back, bilateral foot and bilateral ankle claims. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2005). The veteran and his representative have been accorded the opportunity to present evidence and argument in support of his claims. The veteran declined the option of a personal hearing on his May 2004 substantive appeal. Accordingly, the Board will proceed to a decision on the merits. Preliminary matter - missing service medical records As has been discussed above, the veteran's service medical records are missing and are presumed to have been lost in the June 1973 fire at the NPRC. Because the veteran's service medical records are missing, the Board has a heightened duty to explain its findings and conclusions and to consider the benefit of the doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board's analysis of the veteran's claims has been undertaken with this heightened duty in mind. The case law does not, however, lower the legal standard for proving claims for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) [the Court declined to apply an "adverse presumption" where records have been lost or destroyed while in Government control which would have required VA to disprove a claimant's allegation of injury or disease in service in these particular cases]. Moreover, as explained below the outcome of this case hinges largely on questions the answers to which would not be contained in the service medical records in any event, such as medical nexus and the current existence of claimed disabilities. With respect to the asbestos claims, the evidence of record indicates that he was not engaged in activities that presented a high risk of asbestos exposure, nor have residuals of asbestos exposure been clinically identified by x-rays. With respect to the veteran's feet, ankle and back claims, he has yet to provide evidence of a current disability. Accordingly, even if the veteran's service medical records were discovered and associated with the claims folder, the outcome of this decision would be the same. 1. Entitlement to service connection for a lung disorder, claimed as due to exposure to asbestos exposure in service. 2. Entitlement to service connection for a heart condition, claimed as due to asbestos exposure in service. Because the resolution of these two issues involved the application of identical law to similar facts, the Board will address them together. Pertinent law and regulations Service connection - in general Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2005). For certain chronic disorders, including hypertension, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2005). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Asbestos exposure There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary of VA promulgated any regulations in regard to such claims. However, VA has issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular have been included in a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, 7.21. The Court has held that VA must analyze an appellant's claim to entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols under these guidelines. See Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). VA Manual M21-1, Part VI, para. 7.21 (October 3, 1997) provides that inhalation of asbestos fibers can produce fibrosis and tumor, most commonly interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusion and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx, as well as the urogenital system (except the prostate) are also associated with asbestos exposure. Thus persons with asbestos exposure have increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer. See M21-1, Part VI, para 7.21(a). The applicable section of Manual M21-1 also notes that some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc. High exposure to respirable asbestos and a high prevalence of disease have been noted in insulation and shipyard workers, and this is significant considering that, during World War II, U.S. Navy veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because the latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). See Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21 b. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos. Medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. VA O.G.C. Prec. Op. No. 04-00. In short, with respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post- service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. See M21-1, Part VI, 7.21; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). Analysis The veteran conditions that his current lung and heart problems are a result of asbestos exposure in service. See the May 2004 substantive appeal. As detailed above, in order to establish service connection for the claimed conditions, there must be (1) medical evidence of a current disability; (2) evidence of the in- service incurrence or aggravation of a disease or injury or evidence of a service-connected disability; and (3) medical evidence of a nexus between (1) and (2). See Hickson, supra. With respect to Hickson element (1), the Board finds that there is medical evidence of a current disability of the heart. Specifically, a January 2001 echocardiogram report indicates diagnoses of concentric left ventricular hypertrophy, biatrial enlargement, mild tricuspid regurgitation, mild aortic regurgiation, and mild pulmonary hypertension. With respect to the veteran's lungs, there is a 1988 diagnosis of asthma and recurrent bronchitis, and more current VA outpatient records indicate the veteran is receiving inhalers for this condition. Hickson element (1) has therefore been met for the heart and lung claims. With respect to Hickson element (2), disease or injury in service, the Board will separately address the matters of in- service disease and in-service injury. The veteran's service medical records are unavailable. However, the veteran himself has not indicated that he was treated for lung or heart problems in service, and the medical evidence indicates that lung problems were first indicated in the 1980s and heart problems in the 1990s, over 30 years after the veteran left military service in 1956. The Board notes at this juncture that the one year statutory presumption for hypertension found in 38 C.F.R. §§ 3.307, 3.309 is not for application, as such was first diagnosed decades after service. With respect to in-service injury, the alleged injury is exposure to asbestos in service. As noted above, asbestos exposure is a fact to be determined from the evidence. See Dyment, supra. Review of the veteran's DD Form 214 indicates that his MOS was graves registration specialist. There is no indication of activities such as mining, milling, work in shipyards, etc., that would allow for the Board to find that there was asbestos exposure in service. The veteran, for his part, has not explained how he was exposed to asbestos in service. The RO, in the above- mentioned November 2001 VCAA letter, asked the veteran to submit answers to seven questions in order to process his claims for asbestos exposure. These questions concerned the veteran's in-service duties, smoking history and post-service employment. The veteran failed to respond to any of these questions. He has been accorded ample opportunity to present evidence supporting asbestos exposure in service; he has failed to do so. See 38 U.S.C.A. § 5107(a), supra. Moreover, the more recent medical evidence of record does not contain evidence of residuals of asbestos exposure in service. Indeed, March 1992, October 1993 and March 1998 chest X-rays were negative for the presence of asbestos particles in the lungs. Accordingly, Hickson element (2) has not been met, and the claims fail on this basis alone. For the sake of completeness, the Board will address the remaining Hickson element. With respect to Hickson element (3), medical nexus, no medical nexus opinion is of record. It is obvious that in the absence of an in-service injury or disease, a medical nexus opinion would be an impossibility. Cf. Charles, supra. To the extent that the veteran himself and his representative contend that a medical relationship exists between lung and heart problems and asbestos exposure in service, their opinions are entitled to no weight of probative value. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992); see also Voerth v. West, 13 Vet. App. 117, 119 (1999) [unsupported by medical evidence, a claimant's personal belief, no matter how sincere, is not probative of a nexus to service]. Any such statements offered in support of the veteran's claims do not constitute competent medical evidence and cannot be accepted by the Board. See also Cromley v. Brown, 7 Vet. App. 376, 379 (1995). Accordingly, Hickson element (3), medical nexus, has not been satisfied, and the claims also fail on that basis. In short, for the reasons and bases expressed above the Board concludes that a preponderance of the evidence is against the veteran's claims of entitlement to service connection for a lung disorder and a heart condition, as Hickson elements (2) and (3) have not been met. Therefore, contrary to the assertions of the veteran's representative, the benefit of the doubt doctrine is not for application as the evidence is not in relative equipoise. The benefits sought on appeal are accordingly denied. 3. Entitlement to service connection for a bilateral foot condition. 4. Entitlement to service connection for a bilateral ankle condition. 5. Entitlement to service connection for a back condition. These issues will be addressed together. Pertinent law and regulations Service connection - in general The law and regulations pertinent to service connection claims in general are detailed above and need not be repeated for the sake of brevity. Current disability Service connection presupposes a diagnosis of a current disability. See Rabideau v. Derwinski, 2 Vet. App. 141 (1992). A "current disability" means a disability shown by competent medical evidence to exist. See Chelte v. Brown, 10 Vet. App. 268 (1997). Symptoms alone, without a diagnosed or identifiable underlying malady or condition, do not in and of themselves constitute a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). Analysis The veteran contends that he was treated for his foot, ankle and back problems in service and has been treated for these problems since that time. See the May 2004 substantive appeal. As detailed above, in order to establish service connection for the claimed disabilities, there must be (1) medical evidence of a current disability; (2) evidence of the in- service incurrence or aggravation of a disease or injury or evidence of a service-connected disability; and (3) medical evidence of a nexus between (1) and (2). See Hickson, supra. With respect to Hickson element (1), there is no evidence of record of a current diagnosis of a disability of the feet, ankles or back. Indeed, with respect to the claim for a bilateral foot problem, a May 2001 VA diabetic foot examination was completely normal. The veteran has been accorded ample opportunity to present competent medical evidence in support of his claims for feet, ankles and back conditions; he has failed to do so. See 38 U.S.C.A. § 5107(a) [it is the claimant's responsibility to support a claim for VA benefits]. To the extent that the veteran himself contends that feet, ankle and back conditions exist, it is now well established that lay persons without medical training, such as the veteran, are not competent to comment on medical matters such as diagnosis, date of onset or cause of a disability. See Espiritu, supra; see also 38 C.F.R. § 3.159 (a)(1) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. The veteran's statements are not competent medical evidence and do not serve to establish the existence of a current disability for these claims. In the absence of any diagnosed disability of the feet, ankles or back, service connection may not be granted. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) [service connection cannot be granted if the claimed disability does not exist]. Accordingly, Hickson element (1) has not been met, and the veteran's claims for entitlement to service connection for a bilateral foot condition, a bilateral ankle condition and a back condition fail on this basis alone. For the sake of completeness, the Board will briefly address the remaining two Hickson elements. With respect to Hickson element (2), in-service disease or injury, the veteran contends that his bilateral feet, bilateral ankles and back were treated during service. See the May 2004 substantive appeal. The Board has no way of verifying this, as the service medical records have been lost. Therefore the Board will afford the veteran the benefit of the doubt and presume that bilateral foot, bilateral ankle and back problems were present during service. Accordingly, Hickson element (2) has arguably been met. With respect to Hickson element (3), medical nexus, there is no medical opinion linking bilateral feet, bilateral ankle or back problems to service. It is clear that in the absence of a current diagnosis of a disability, a medical nexus opinion would be an impossibility. To the extent that the veteran himself is attempting to provide a nexus between his claimed feet, ankle and back problems and military service, his statements are not probative of a nexus. See Espiritu, supra; see also Voerth, supra. Hickson element (3) has not been satisfied in regards to the veteran's feet, ankle and back claims. The veteran appears to be contending that he had bilateral foot, bilateral ankle and back symptoms continually after service. The Board is aware of the provisions of 38 C.F.R. § 3.303(b), relating to chronicity and continuity of symptomatology. However, as discussed above there is evidence of current diagnoses of foot, ankle or back conditions. Nor is there evidence of such disabilities in the many decades after service. Supporting medical evidence is required. See Voerth v. West, 13 Vet. App. 117, 120-1 (1999) [there must be medical evidence on file demonstrating a relationship between the veteran's current disability and the claimed continuous symptomatology, unless such a relationship is one as to which a lay person's observation is competent]. Such evidence is lacking in this case. The veteran has contended that he "had private doctors, as well as chiropractors treat me for the conditions". See his April 2004 VA Form 9. However, as has been described in the VCAA discussion above, although he furnished a list of such health care providers, he did not provide the consents necessary for VA to obtain such records. Continuity of symptomatology after service is therefore not demonstrated. In short, for the reasons and bases expressed above the Board concludes that a preponderance of the evidence is against the veteran's claims of entitlement to service connection for bilateral foot, bilateral ankle and back disabilities, as Hickson elements (1) and (3) have not been met. Therefore, contrary to the assertions of the veteran's representative, the benefit of the doubt doctrine is not for application as the evidence is not in relative equipoise. The benefits sought on appeal are accordingly denied. ORDER Entitlement to service connection for a lung disorder, claimed as due to asbestos exposure, is denied. Entitlement to service connection for a heart condition, claimed as due to asbestos exposure, is denied. Entitlement to service connection for a bilateral foot condition is denied. Entitlement to service connection for a bilateral ankle condition is denied. Entitlement to service connection for a back condition is denied. ____________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs