Citation Nr: 0814079 Decision Date: 04/29/08 Archive Date: 05/08/08 DOCKET NO. 07-12 492 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for irregular heartbeats secondary to rubella. 2. Entitlement to service connection for heel spurs. 3. Entitlement to service connection for joint pains. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The veteran was in the Marine Corps Reserve from November 1964 to November 1970, during which time he had several periods of training duty, including the verified period of active duty for training (ACDUTRA) from November 24, 1964, to May 23, 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) rating decision of August 2006. In February 2008, the veteran appeared at a hearing held at the RO before the undersigned (i.e., Travel Board hearing). FINDINGS OF FACT 1. Although the veteran had rubella during service, no irregular heartbeats were shown, and the veteran does not currently have a disability manifested by irregular heartbeats. 2. Service medical records show two separate occasions on which the veteran complained of left heel or foot pain; he provided credible testimony regarding the continuity of symptomatology after service; and he current has a left heel spur, shown on X-ray. 3. Right foot complaints were not shown in service, nor does the veteran currently have a heel spur in the right foot. 4. An episode of multiple joint pains in service was attributed to the veteran's infectious disease at the time, diagnosed as rubella possibly due to strep, and a chronic disability manifested by joint pains was not shown until many years after service when degenerative joint disease was diagnosed. The degenerative joint disease of multiple joints was not due to service. CONCLUSIONS OF LAW 1. Irregular heartbeats were not incurred in or aggravated by ACDUTRA, nor due to rubella shown in service. 38 U.S.C.A. §§ 101(22), 106(d), 1110, 1131 (West 2002); 38 C.F.R. §§ 3.6, 3.303 (2007). 2. A left heel spur was incurred during a period of ACDUTRA. 38 U.S.C.A. §§ 101(22), 106(d), 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.6, 3.102, 3.303 (2007). 3. A right heel spur was not incurred in or aggravated by ACDUTRA. 38 U.S.C.A. §§ 101(22), 106(d), 1110, 1131 (West 2002); 38 C.F.R. §§ 3.6, 3.303 (2007). 4. A chronic disability manifested by joint pains was not incurred in or aggravated by ACDUTRA. 38 U.S.C.A. §§ 101(22), 106(d), 1110, 1131 (West 2002); 38 C.F.R. §§ 3.6, 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notification and Assistance The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2005)), imposes obligations on VA in terms of its duties to notify and assist claimants. In a letter dated in June 2006, prior to the initial adjudication of the claims, the RO advised the claimant of the information necessary to substantiate the claims for service connection, and of his and VA's respective obligations for obtaining specified different types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). He was notified of the service incurrence, current disability, and nexus elements of a service connection claim. He was advised of various types of lay, medical, and employment evidence that could substantiate the various elements of his service connection claims. He was also told to provide any relevant evidence or information in his possession. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The letter also contained information regarding ratings and effective dates. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Hence, the VCAA notice requirements have been satisfied. See 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159. With respect to the duty to assist, service medical records have been obtained. A record and a statement from the only doctor identified by the veteran as having provided treatment after service were obtained. The veteran has not identified any post-service VA medical treatment for the conditions at issue. A VA examination addressing the conditions at issue was provided. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4); see McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Dalton v. Nicholson, 21 Vet.App. 23 (2007). The veteran testified at a Travel Board hearing before the undersigned. He has not identified the existence of any potentially relevant evidence which is not of record. Thus, the Board also concludes that VA's duty to assist has been satisfied. Thus, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Service Connection Service connection may also be granted for disability resulting from disease or injury incurred in or aggravated while performing active duty for training (ACDUTRA). 38 U.S.C.A. §§ 101(22), 106(d), 1110, 1131; 38 C.F.R. § 3.6(c), 3.303. In a decision as to service connection based on a period of ACDUTRA, the primary distinction is that the presumptive provisions in the law, which require active service, do not apply to ACDUTRA. See Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Generally, to establish service connection, there must be (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In evaluating the evidence in a claim, when there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving such issue shall be given to the claimant. 38 U.S.C. § 5107(b); see Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Only if the preponderance of the evidence is against the claim is it denied. See Gilbert. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. 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). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. The appellant is competent to give evidence about what he experienced; for example, he is competent to report that he had certain injuries during service or that he experienced certain symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). As a layman, however, he is not competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder 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). Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). In evaluating the veteran's claim, evidence of a prolonged period without medical complaint can be considered, along with other factors concerning the veteran's health and medical treatment during and after military service, as probative evidence. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000); see also Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact). A. Irregular Heartbeats Secondary To Rubella The veteran contends that he was treated during service in 1965 for rubella. He states that irregular heart beats were first noticed by his girlfriend in approximately 1970 to 1971, who noticed that his heart stopped beating. He said that since then, he had noticed that his heart stopped from time to time. He stated that a nurse at Poplar Bluff took an electrocardiogram, which showed short periods of time in which his heart would stop beating. Service medical records show that in January 1965, the veteran was treated for symptoms including sore throat, fatigue, slight nausea, a rash, and the impression was rubella. When seen for follow-up several days later, it was noted that his heart had a normal sinus rhythm. The separation examination in May 1965 was normal, as was a June 1966 annual examination. On an annual examination in May 1967, the veteran reported a history of shortness of breath, pains in the chest, and palpitations of the heart, which the doctor noted were not considered disqualifying. The examination itself was normal. Similarly, on an annual examination in February 1968, the veteran again reported as medical history, the veteran responded "yes" to the questions of whether he had now, or had ever had, "pain or pressure in chest," "palpitation or pounding heart," and "high or low blood pressure." Again, no defects were noted on examination. On a November 1970 examination, he reported chest wall pain, palpitations at night when quiet in bed, and high blood pressure shown on an examination a year earlier. His blood pressure was 126/74 on the examination, and other than two scars, the physical examination was normal. S. Burchfield, M.D., wrote, in October 2006, that the veteran was a patient of his for multiple medical problems, and that the veteran's service medical records clearly stated that on November 14, 1970, he complained of palpitations, and it was more likely than not that the palpitations were service- connected. However, Dr. Burchfield's treatment records on file, consisting of a March 2006 evaluation, show that as to history, the veteran denied chest pain or palpitations. On review of symptoms, he had no palpitations. He had a medical history of hypertension. On examination, the heart sounds were regular with normal S1 and S2, and no S3 or S4. There were no murmurs, clicks, or gallops. It was noted that he had a regular sinus rhythm without murmurs. The diagnosis was hypertension; there was no mention of irregular heartbeat or palpitations, either on examination, or by history. On a VA examination in May 2007, the examiner summarized the service medical records. The veteran said that he had been treated for hypertension since 2004. On examination, the heart sounds were without rubs or murmurs. An echocardiogram found no abnormalities, with left ventricle ejection fraction of 61 percent which was noted to be normal. The examiner noted that the veteran said he complained of some palpitations while on active duty, but no current disability associated with that history was identified on examination. Although the veteran complained of palpitations during some of the examinations conducted while he was in the Reserves, no abnormalities were found. The veteran, as a layman, is competent to describe subjective feelings of irregular heartbeats or palpitations, but he is not competent to state whether they represent a pathological condition. With respect to current disability, the VA examiner did not find any evidence of irregular heartbeat or palpitations. Dr. Burchfield noted that on November 14, 1970, the veteran complained of palpitations, and said it was more likely than not that the palpitations were service-connected. However, he did not state that the veteran currently had palpitations, and in his March 2006 evaluation of the veteran, the veteran denied a history of palpitations, and the heart rhythm was normal. The veteran testified that at the VA, an electrocardiogram had been abnormal, but the only evidence from that facility indicates that an echocardiogram was conducted, which was normal. Thus, the weight of the evidence is against a finding that the veteran has a current disability manifested by heart palpitations. Without medical evidence of the current existence of a claimed condition, there may be no service connection. Degmetich v. Brown, 104 F.3d 1328 (1997). Moreover, because there is no current disability, an opinion cannot be obtained as to whether the claimed condition is due to rubella. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); see Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. Heel Spurs The veteran contends that he was treated for heel spurs in service. He states that after service, the condition improved, but he continued to experience periodic heel pain. Service medical records show that in December 1964, the veteran complained of left heel pain when walking. Hot soaks and tennis shoes were prescribed. In January 1965, he complained sore joints. He was referred to the foot clinic about his left foot. He gave history of two days of multiple joint pains, and it was felt that his present complaints of foot pain were related to this and not a local foot problem. No complaints or abnormal findings were noted on the examination for separation from ACDUTRA, or on any of the subsequent examinations conducted while he was in the Reserves. In May 2007, a VA examination of the feet was conducted. The veteran said he had foot pain with walking for standing, which had been progressive and constant. He said he developed bone spurs in service, and had them ever since service. On examination of the feet, he complained of pain to palpation of both heels. Examination of the feet showed mild degenerative joint disease, with a heel spur in the left foot only. The examiner concluded that there was no chronic illness that required treatment, due to the absence of medical records from 1970 to the present. The examinations in service did not find any abnormalities. Therefore, the examiner concluded that it was not likely secondary to service, based on the available evidence. The examiner's conclusion was based on (a) the absence of a chronic condition requiring treatment since service, and (b) the absence of abnormal findings in service, and at separation. However, the Board notes that continuous treatment after service is not a requirement for service connection; the veteran must have continuity of symptomatology, but not necessarily of treatment. As noted above, the absence of any treatment or other contemporaneous evidence of the condition for many years after service is evidence against the claim, but it is a factor to be weighed; it is not, itself, dispositive. Although no abnormal findings were shown in service, the abnormal findings shown now are tenderness to palpation, and, more importantly, a heel spur in the left foot shown only on X-ray. There was no evidence that an X-ray of the foot was taken in service, nor was the presence or absence of tenderness noted. Moreover, the opinion was based on factual observations, not requiring medical expertise. In other words, the examiner did not provide a medical rationale for concluding that the condition was not due to service. In weighing the evidence in its entirety, first, service medical records show two separate occasions on which left heel/foot pain were recorded during the 6 months he was on ACDUTRA. No tests, such as X-rays, to rule out the presence of a heel spur were obtained. In addition, the Board finds the veteran's testimony as to his post-service heel pain to be credible. He testified that his feet had served him well. Although later he said that he had had to quit a job due to foot pain, he also said he did not seek treatment. Moreover, although he states that he did not receive treatment after service, in his initial claim, he claimed service connection for "heel spurs." As the veteran's testimony does not indicate he has any familiarity with medical terms, the Board concludes that at some point before the claim, and before the VA diagnosis, he was told that he had heel spurs. Further, the VA examination in fact disclosed a heel spur in the left heel, which was the heel for which he was treated on two occasions during service. Thus, the Board accepts the medical diagnosis of a left foot heel spur provided by the VA examiner. As to the negative nexus opinion, this was based on an erroneous legal interpretation of facts capable of lay observation, i.e., no treatment since service, and no diagnosis of symptoms in service. Therefore, the Board is not required to accept this aspect of the opinion. In view of the foregoing, the Board finds that the in-service complaints of left foot/heel pain, the veteran's credible testimony regarding the continuation of pain after service, and the current diagnosis of a left heel spur, demonstrated on X-ray, are sufficient to place the evidence in equipoise, as to the left heel, and, hence, service connection is warranted for a left heel spur. In reaching this determination, the benefit-of-the-doubt rule has been applied. 38 U.S.C. § 5107(b); see Ortiz, supra; Gilbert, supra. For the right heel, however, there were no complaints in service, and the VA examination showed that he does not have a heel spur in the right heel. Therefore, the preponderance of the evidence is against the claim for service connection for a right heel spur. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt does not apply, and the claim must be denied. In reaching this determination, the benefit-of-the-doubt rule has been applied. Id. C. Joint Pains The veteran claims service connection for multiple joint pains. Service medical records show that in January 1965, the veteran was treated for a sore throat and rash, with an impression of rubella. Three days after his initial treatment, he had a sore throat, was very tired, and had slight nausea. The impression was rubella, resolving, possibly secondary to strep. Several days later, he complained of trouble walking and sore joints. He denied trauma. On examination, the back of his knees were tender to palpation, but there was no heat or effusion. The impression was arthralgia, post infection, with arthritis doubtful. The separation examination in May 1965 was normal, as was a June 1966 annual examination. On the November 1970 examination prior to his discharge from the Reserves, the veteran responded "yes" to a question of whether he had now, or had ever had, "swollen or painful joints." The examiner noted that he had had this years ago while in boot camp. Significantly, there was no indication that he had continued to suffer from multiple joint pains. When examined by Dr. Burchfield in March 2006, the veteran complained of joint pains. He said he had joint stiffness, joint pain, and joint swelling. However, the only positive history noted was a bone spur in the cervical spine. The diagnosis was osteoarthritis, although no specific findings, other than the cervical spine, were noted. In October 2006, Dr. Burchfield wrote that he had reviewed the veteran's service medical records, and noted that the November 1970 record stated that he complained of joint pains which started during boot camp, and that it was more likely than not that degenerative joint disease was service-connected. This opinion, however, is inadequate for several reasons. First, he does not provide a specific diagnosis of the joints affected by degenerative joint disease, nor does he provide an opinion as to the basis for his diagnosis. Second, he states that in November 1970, the veteran complained of joint pains which began in boot camp, while in fact the veteran said he had had joint pains while in boot camp, a significant difference when continuity of symptomatology must be established. Finally, he does not comment on the fact that the joint pains during boot camp were attributed to the rubella and possible strep throat he had at that time. On the VA examination in May 2007, the examiner noted that the veteran complained of non-specific joint pain, principally his feet and knees. He complained of joint stiffness and pain for several years. On examination, there appeared to be some generalized arthritis throughout the body, and X-rays of the knees and feet did disclose mild degenerative joint disease. The examiner concluded that the mild generalized arthritis was not associated with active duty, and that it appeared to be more of a generalized aging process. At his hearing before the undersigned, the veteran testified that after the in-service joint pain episode, his condition improved. He said that over the years, he had pains in various joints. This testimony is credible. The in-service joint pains, which the veteran described at his hearing, were attributed at that time to his rubella with a sore throat, for which he was taking Penicillin. His statements regarding the condition after service do not establish continuity during the many years between the 1965 episode of joint pain, and the 2006 diagnosis of degenerative joint disease. No other disorder manifested by multiple joint pains has been diagnosed. The VA examiner concluded that the arthritis was more likely due to the aging process, and Dr. Burchfield's opinion is insufficient, for the reasons stated above. In view of all of these factors, the preponderance of the evidence is against the claim for service connection for multiple joint pains, the benefit-of-the-doubt doctrine is inapplicable, and the claim must be denied. 38 U.S.C. § 5107(b); see Ortiz, supra; Gilbert, supra. ORDER Entitlement to service connection for irregular heartbeats secondary to rubella is denied. Entitlement to service connection for a left heel spur is granted. Entitlement to service connection for a right heel spur is denied. Entitlement to service connection for joint pains is denied. ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs