Citation Nr: 0811664 Decision Date: 04/09/08 Archive Date: 04/23/08 DOCKET NO. 05-17 678A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for a foot disability, claimed as hallux valgus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Jeng, Associate Counsel INTRODUCTION The veteran had active duty from November 1975 to June 1977. This matter comes before the Board of Veterans' Appeals (Board) from a September 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. A chronic back disability was not exhibited in service or for many years thereafter and a preponderance of the evidence is against a finding that any current back disability is related to service. 2. A chronic foot disability was not exhibited in service or for many years thereafter and a preponderance of the evidence is against a finding that any current foot disability is related to service. CONCLUSIONS OF LAW 1. A chronic back disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2007). 2. A chronic foot disability was not incurred in or aggravated by service and arthritis may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In correspondence dated in April 2004, the RO satisfied its duty to notify the veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2007). Specifically, the RO notified the veteran of: information and evidence necessary to substantiate the claims; information and evidence that VA would seek to provide; and information and evidence that the veteran was expected to provide. The veteran was instructed to submit any evidence in his possession that pertained to his claims. In March 2006, the RO also notified the veteran of the process by which initial disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The veteran responded in correspondence dated in June 2007 that he had nothing further to submit. VA has done everything reasonably possible to assist the veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2007). Service medical records have been associated with the claims file. All identified and available treatment records have been secured. The duties to notify and assist have been met. Analysis When seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131 "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. 38 C.F.R. § 3.303(a). Where chronicity of a disease is not shown in service, service connection may yet be established by showing continuity of symptomatology between the currently claimed disability and a condition noted in service. 38 C.F.R. § 3.303(b). If arthritis becomes manifest to a degree of 10 percent within one year from date of termination of service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309 (a). As discussed below, there is no indication that arthritis of either the back or foot manifested to a degree of 10 percent within one year from service discharge. Back Disability The veteran has a current back disability as noted by multiple treatment records. A March 1998 MRI report noted degenerative disc disease at the L4-5 level with far lateral disc herniation bilaterally, right greater than left, which would be compatible with bilateral L4 radiculopathy. However, service medical records are negative for any complaints or finings of a back disability. In fact, the examination report at service discharge did not note any spinal abnormalities. Based on the evidence, the Board finds that service connection is not warranted. While the veteran currently has a back disability, there is no competent medical evidence that such a disability is related to service. There were no findings in service and the first indication of a disability in the record was not until March 1998. A record dated at that time noted that the veteran had sudden onset of severe pain and discomfort in this lower back. In any case, the first indication of a disability is 21 years after service discharge. In view of the lengthy period without treatment, there is no evidence of continuity of symptomatology and this weighs against the claim. Furthermore, there is no opinion which provides a nexus between service and current back disability. The Board declines to obtain a medical nexus opinion with respect to the veteran's service connection claim because there is no evidence of pertinent disability in service or for over 20 years following service. Thus, while there is current evidence of a back disability, there is no true indication that a disability is associated with service. See Charles v. Principi, 16 Vet. App. 370 (2002). Indeed, in view of the absence of complaints or findings of a back disability in service and the lack of diagnosis of the claimed disability until many years post-service, any opinion relating pertinent disability to service would certainly be speculative. However, service connection may not be based on a resort to pure speculation or even remote possibility. See 38 C.F.R. § 3.102. The duty to assist is not invoked, even under Charles, where "no reasonable possibility exists that such assistance would aid in substantiating the claim." 38 U.S.C.A. 5103A(a)(2). In adjudicating this claim, the Board must assess the competence and credibility of the veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). Recently, in Barr v. Nicholson, 21 Vet. App. 303 (2007), the United States Court of Appeals for Veterans Claims (Court), citing Layno v. Brown, 6 Vet. App. 465, 467-69 (1994), emphasized that lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witnesses personal knowledge; see also 38 C.F.R. § 3.159(a)(2) (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In this capacity, the Board finds the veteran is competent to attest to his observations of his disorder. Layno; 38 C.F.R. § 3.159(a)(2). However, as a lay person, he is not competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder (i.e. that his current back disability is related to service) because he does not have the requisite medical expertise. See, e.g., See Routen v. Brown, 10 Vet. App. 183, 186 (1997); Espiritu v. Derwinski, 2 Vet.App. 492 (1992). As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Foot Disability The veteran currently has a foot disability as a June 2003 x- ray report noted an impression of hallux valgus deformity, healing fractures of the distal condyles of the second to fifth toes, and arthritic changes of the fourth and fifth toes. However, service medical records are silent for any complaints of findings of a foot disability. The examination at service discharge was negative for any foot abnormalities. Based on the evidence, the Board finds that service connection is not warranted. While the veteran currently has a foot disability, there is no competent medical evidence that such a disability is related to service. There were no findings in service and the first indication of a disability in the record was not until June 2003. This is 26 years after service discharge. Arthritis was not exhibited within the first post service year. In view of the lengthy period without treatment, there is no evidence of continuity of symptomatology and this weighs against the claim. Furthermore, there is no opinion which provides a nexus between service and current foot disability. The Board declines to obtain a medical nexus opinion with respect to the veteran's service connection claim because there is no evidence of pertinent disability in service or for over 20 years following service. Thus, while there is current evidence of a foot disability, there is no true indication that a disability is associated with service. See Charles v. Principi, 16 Vet. App. 370 (2002). Indeed, in view of the absence of complaints or findings of a foot disability in service and the lack of diagnosis of the claimed disability until many years post-service, any opinion relating pertinent disability to service would certainly be speculative. However, service connection may not be based on a resort to pure speculation or even remote possibility. See 38 C.F.R. § 3.102. The duty to assist is not invoked, even under Charles, where "no reasonable possibility exists that such assistance would aid in substantiating the claim." 38 U.S.C.A. 5103A(a)(2). The Board finds the veteran is competent to attest to his observations of his disorder. Layno; 38 C.F.R. § 3.159(a)(2). However, as a lay person, he is not competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder (i.e. that his current foot disability is related to service) because he does not have the requisite medical expertise. See, e.g., See Routen v. Brown, 10 Vet. App. 183, 186 (1997); Espiritu v. Derwinski, 2 Vet.App. 492 (1992). As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a back disability is denied. Service connection for a foot disability, claimed as hallux valgus, is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs