Citation Nr: 1004841 Decision Date: 02/02/10 Archive Date: 02/18/10 DOCKET NO. 08-08 891 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for a bilateral foot disability. 2. Entitlement to service connection for a lung disability. REPRESENTATION Appellant represented by: State Veterans Affairs Commission of Mississippi WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Shawkey, Counsel INTRODUCTION The Veteran served on active duty from September 1970 to August 1973. He was discharged under Honorable Conditions. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In this decision the RO denied the Veteran's claims of entitlement to service connection for a bilateral foot disability and for a lung disability. The denial of the claim of entitlement to service connection for a lung disability was based, in part, on the RO's December 2006 Administrative Decision that the documented lung injury the Veteran sustained on September 20, 1972, was not incurred in the line of duty. In September 2008, the Veteran testified at the RO before the undersigned at a Board hearing. At the hearing the Veteran clearly disagreed with the RO's line of duty determination thus bringing that decision into the appeal. FINDINGS OF FACT 1. The Veteran sustained a stab puncture wound to his left chest on September 20, 1972. 2. At the time of the stab puncture wound to his left chest on September 20, 1972, the Veteran was absent without leave (AWOL) from his military duties. 3. The Veteran's stab injuries on September 20, 1972, to include the puncture wound to his left chest were proximately caused by his own willful misconduct. 4. The Veteran does not have a lung disability attributable to service. 5. The Veteran does not have a bilateral foot disability attributable to service. CONCLUSIONS OF LAW 1. The Veteran does not have a lung disability that was incurred in or aggravated by service. 38 U.S.C.A. §§ 105, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.301, 3.303 (2009). 2. The Veteran does not have a bilateral foot disability that was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Veterans Claims Assistance Act of 2000 Initially, the Board notes that, in November 2000, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). To implement the provisions of the law, VA promulgated regulations published at 66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009)). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R § 3.159(c). The United States Court of Appeals for Veterans Claims' (Court's) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits. In the present appeal, the appellant was provided with initial notice of the VCAA in August 2006, which was prior to the March 2007 adverse decision on appeal. Therefore, the express requirements set out by the Court in Pelegrini have been satisfied. VA has fulfilled its duty to notify the appellant in this case. In the August 2006 letter, the RO informed the claimant of the applicable laws and regulations, the evidence needed to substantiate the claims decided herein, and which party was responsible for obtaining the evidence. 38 C.F.R. § 3.159; see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); McKnight v. Gober, 131 F.3d 1483, 1485 (Fed. Cir. 1997). The Board notes that 38 C.F.R. § 3.159 was revised, effective as of May 30, 2008, and several portions of the revisions are pertinent to the claim at issue. See 73 Fed. Reg. 23, 353-23, 356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request the claimant to provide any evidence in the claimant's possession that pertains to the claim. Thus, the Board finds that the notice required by the VCAA and implementing regulations was furnished to the claimant and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. During the pendency of this appeal, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service- connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Dingess/Hartman, supra. With respect to the claims on appeal, the Board finds that the appellant is not prejudiced by a decision at this time since the claims are being denied. Therefore, any notice defect, to include disability rating and effective date, is harmless error since no disability rating or effective date will be assigned. Moreover, the appellant was provided with notice of the disability rating and effective date elements in the August 2006 letter. The Board also finds that all necessary assistance has been provided to the appellant including requesting information from the appellant regarding pertinent medical treatment he may have received for his feet and lung disabilities and requesting records from the identified providers. The Board acknowledges that the Veteran has not had a VA examination specifically for these claims. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Board concludes an examination is not needed for this claim because there is no probative evidence establishing a line of duty in-service lung or feet disability. See Duenas v. Principi, 18 Vet. App. 512, 519 (2004) (finding no prejudicial error in Board's statement of reasons or bases regarding why a medical opinion was not warranted because there was no reasonable possibility that such an opinion could substantiate the veteran's claim because there was no evidence, other than his own lay assertion, that " 'reflect[ed] that he suffered an event, injury[,] or disease in service' that may be associated with [his] symptoms"). Accordingly, it was not necessary to obtain a medical examination or medical opinion in order to decide these claims. Lastly, the appellant was provided with the opportunity to testify at a Board hearing which he attended in September 2008. Under these circumstances, the Board finds that VA has fulfilled its duty to notify and assist the appellant in the claims on appeal and that adjudication of the claims at this juncture, without directing or accomplishing any additional notification and/or development action, poses no risk of prejudice to the appellant. See, e.g., Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The appeal is now ready to be considered on the merits. II. Pertinent Law and Regulations Under VA laws and regulations, and for benefits purposes, a veteran is a person discharged or released from active service under conditions other than dishonorable. 38 U.S.C.A. § 101(2) (West 2002); 38 C.F.R. § 3.1(d) (2009). VA benefits are not payable unless the period of service upon which the claim is based was terminated by discharge or release under conditions other than dishonorable. 38 U.S.C.A. § 5303 (West 2002); 38 C.F.R. § 3.12(a) (2009). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b) (2009). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection on the merits, there must be medical evidence of a (1) 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 present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). Under 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d), service connection for a combat-related injury may be based on lay statements, alone, but these provisions do not absolve a claimant from the requirement of demonstrating current disability and a nexus to service, as to both of which competent medical evidence is generally required. Beausoleil v. Brown, 8 Vet. App. 459, 464 (1996). An injury or death incurred during active military, naval, or air service will be deemed to have been incurred in the line of duty when the person on whose account benefits are claimed was, at the time the injury was suffered or death occurred, in active military, naval, or air service, whether on active duty or on authorized leave, unless such injury or disease was a result of the person's own willful misconduct or the abuse of alcohol or drugs. 38 U.S.C.A. § 101, 105, 1110; 38 C.F.R. §§ 3.1(m), 3.5, 3.301. Section 105 creates a presumption of service connection for injuries that occur during active duty unless a preponderance of the evidence establishes that the injury was the result of the person's own willful misconduct. See Thomas v. Nicholson, 423 F.3d 1279, 1284-85 (Fed. Cir. 2005); Shedden v. Principi, 381 F.3d 1163, 1166 (Fed. Cir. 2004). "Willful misconduct" is defined as "an act involving conscious wrongdoing or known prohibited action.... It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences." 38 C.F.R. § 3.1(n); Daniels v. Brown, 9 Vet. App. 348, 350-51 (1996). If the Veteran was absent without leave (AWOL) which materially interfered with the performance of military duty, the requirements as to line of duty are not met. 38 C.F.R. § 3.1(m)(1). The Court has determined that an absence without leave, precluding the performance of military duties, cannot constitute a minor offense for purposes of willful and persistent misconduct. Stringham v. Brown, 8 Vet. App. 445, 448 (1995). The isolated and infrequent use of drugs by itself will not be considered willful misconduct; however, the progressive and frequent use of drugs to the point of addiction will be considered willful misconduct. Where drugs are used to enjoy or experience their effects and the effects result proximately and immediately in disability or death, such disability or death will be considered the result of the person's willful misconduct. Organic diseases and disabilities which are a secondary result of the chronic use of drugs and infections coinciding with the injection of drugs will not be considered of willful misconduct origin. (See paragraph (d) of this section regarding service connection where disability or death is a result of abuse of drugs.) Where drugs are used for therapeutic purposes or where use of drugs or addiction thereto, results from a service-connected disability, it will not be considered of misconduct origin. 38 C.F.R. § 3.301(c)(3). III. Analysis A. Bilateral Foot Disability Facts Both the Veteran's enlistment and separation examination reports show a normal clinical evaluation of his feet. Regarding skin problems, these records show that the Veteran was seen at a medical facility in July 1973 complaining of a rash on his face. When asked on a Report of Medical History, dated at the time of the Veteran's discharge examination in July 1973, if he ever had or presently had foot trouble or skin diseases, the Veteran replied "Don't Know". This report notes that the Veteran had had a shaving rash. The Veteran signed a statement in August 1973 stating that there had been no change in his medical condition since the July 1973 examination. A private medical record in August 2006 contains diagnoses of pompholyx of the hands (also called dishydrotic eczema), athlete's feet and fungal nail changes, hyperkeratosis of the feet, clinical evidence for irritant contact dermatitis involving the feet and legs versus Id reaction, and dishydrotic eczema also involving the feet. The physician noted there was some clear evidence for irritant contact dermatitis and possible "Id" reaction either to the fungal or whatever was causing the skin changes. The physician recommended that the Veteran undergo therapy to see if his feet could improve before returning to full time work requiring that he wear special metal shoes. On file is a VA primary care outpatient note dated in November 2006 containing the Veteran's report of a skin disease on his feet that had spread to his hand which he said he had had for 40 years, since Vietnam. The Veteran was noted to have chronic tinea and advised to report for a dermatology consultation. Also dated in November 2006 is a private medical record from Reginald W. Stewart, M.D. In this record Dr. Stewart noted that the Veteran had been on Limisil for three months at the behest of Dr. Ekenna and that thanks to that medication his toenail fungus had been a lot better, although he continued to have problems with tinea pedis. Dr. Stewart said that he told the Veteran that "quite frankly that this was not uncommon for the fungal infection that occurred in veterans who acquired this in South East Asia." A VA History and Physical progress note dated in January 2007 contains a diagnosis of dishydrosis to both feet. February 2007 VA outpatient records from the Specialist Clinic show that the Veteran was being seen for evaluation and treatment of fungus to both hands and feet. A routine follow-up VA outpatient clinic record in April 2007 notes that the Veteran had chronic tinea pedis and "t. manum" and was assessed as having dishydrosis to both feet. This record also reflects the Veteran's report that his skin problems were better. On file is a VA dermatology consult report dated in June 2007 showing that the Veteran was being seen for follow-up of a fungus infection on the feet and thickened area on the palms. He reported that the medication had really helped his hands and palms. The Veteran was diagnosed as having dermatophytosis of the feet and palmar punctata keratosis punctata. VA podiatry records from December 2007 to May 2008 show that the Veteran was being seen for painful calluses and chronic foot rash and that his history was consistent with dishyrotic eczema. It was also noted that he appeared to have chronic tinea with erythema of the web space. In addition, these records note that the Veteran's job required steel-toed boots and that he was advised not to wear the boots in order to avoid worsening his condition. The Veteran testified at a Board hearing in September 2008 that his foot problems began in service in 1971 in Germany. He said during that time he experienced swelling and itching of his feet and bleeding and cracking in the web between his toes. He said he was treated for this in September at which time he was misdiagnosed. He explained that his feet were soaked in some type of Phisohex. He said that the dispensary did not write anything down because he was so regular and that his sergeant did not believe in profiling. The Veteran reported that this was a constant problem from 1970 to 1973. He said that his feet had not been checked at his discharge physical. He explained that he put an X for "unknown" when asked if he had any foot problems because he did not know what was wrong with his feet. The Veteran said that after service his mother treated his feet for two months and that about a year after that he went to see Dr. Reuben P. Morris who treated him for athlete's feet several times during the 1973/1974 time period. He said the next time he sought medical attention for his feet was in 2006 with Dr. Stewart, and then with VA in 2007. He remarked that there was no way he could recover Dr. Morris' records since Dr. Morris was deceased and his records had been destroyed during Hurricane Katrina. He said that from 1973 to 2006 he self treated his skin disability. Discussion As the record does not show nor does the Veteran contend that his claimed foot disability is due to a combat-related injury, the provisions of 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) are inapplicable. As set forth in Hickson above, element (2) requires evidence of in-service incurrence. In this case, the appellant's service treatment records are entirely silent for any mention of a skin disability involving his feet. They only show that the Veteran had been treated for a rash on his face noted to be a shaving rash. Indeed, at his July 1973 military separation medical examination, the Veteran had a normal clinical evaluation of his feet, and when asked on a July 1973 Report of Medical History if he had had a history of skin trouble or foot trouble, he remarked "Don't Know". Certainly, if the Veteran had been treated for skin problems on his feet as he claims (despite the lack of evidence in his service treatment records of such treatment), one would have to wonder why he did not affirmatively note this on the Report of Medical History. Although he testified at the September 2008 Board hearing that the reason he marked "unknown" was because he did not know what was wrong with his feet, the report asks only for an indication of "foot trouble", not for a specific foot diagnosis. The first postservice evidence of foot problems is dated many years after service, in August 2006. In this regard, there is on file an August 2006 private medical record diagnosing the Veteran, in part, as having pompholyx of the hands (also called dishydrotic eczema), athlete's feet and fungal nail changes, hyperkeratosis of the feet, clinical evidence for irritant contact dermatitis involving the feet and legs versus Id reaction, and dishydrotic eczema also involving the feet. Despite the lack of medical documentation of foot problems to the Veteran's feet in service for over 30 years after service, the Veteran testified in September 2008 that he had been treated for a skin disability on his feet on several occasions following service, in 1973 and/or 1974, but that the treatment records had been destroyed and the treating physician was deceased. Even assuming that the Veteran did receive treatment for his feet following his service discharge in 1973/1974, he went on to testify that he did not again seek medical attention for such problems until 2006. A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In other words, the fact that the Veteran did not again seek treatment such problems for over 3 decades after service weighs against the notion of a chronic or persistent disability. Maxson, supra. In short, the Board affords the Veteran's statements significantly less probative value than the service and post- service treatment records, all of which show that skin disabilities to his feet were not present until over 30 years after his military service had ended. In other words, the Board does not find the Veteran's statements concerning the etiology of his skin disabilities to his feet to be credible, since his service treatment records make no reference to such a disability, and in fact show normal clinical evaluations of his skin and feet at his separation examination in July 1973. See Caluza v. Brown, 7 Vet. App. 498, 511, 512 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996). See also Macarubbo v. Gober, 10 Vet. App. 388 (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self- interest, malingering, desire for monetary gain, and witness demeanor). It is important to point out that the Board does not find that the Veteran's lay statements lack credibility merely because they are unaccompanied by contemporaneous medical evidence. See Davidson v. Shinseki, 2009 WL 2914339 (Fed. Cir.), quoting Buchanon, 451 F.3d at 1337 ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.") Rather, the Veteran's statements are found to be incredible because they are inconsistent with the evidence of record, which fails to document skin problems involving the feet until many years after his separation from active duty in 1973. Accordingly, service connection under the provisions of 38 C.F.R. § 3.303(b) based on chronicity or continuity of symptomatology has not been established. Regarding the provisions of § 3.303(d) with respect to medical nexus evidence, the record is devoid of a positive nexus opinion. There is a notation by Dr. Morris in November 2006 that "it is not uncommon for the fungal infection that occurred in veterans who acquired this in South East Asia." Aside from the vagueness of this statement, Dr. Morris did not identify what information he based his statement on, nor did he indicate the rationale for his conclusion. The Court has held on a number of occasions that a medical opinion premised upon an unsubstantiated account is of no probative value. Reonal v. Brown, 5 Vet. App. 458, 460 (1993). In particular, the Court has held that most of the probative value of a medical opinion comes from its reasoning, and a medical opinion that lacks a reasoned analysis is not entitled to any weight. Neives-Rodriguuez v. Peake, 22 Vet. App. 295, 304 (2008). This is particularly so in this case in light of the lack of any indication in the Veteran's service treatment records of treatment for skin disabilities to the Veteran's feet. Absent a demonstration of a continuity of symptomatology or competent medical evidence linking a present skin disability of the Veteran's feet to service, the Board must conclude that the preponderance of the evidence is against the claim, and it is, therefore, denied. 38 U.S.C.A. § 5107(b) (West 2002). B. Lung Disability Facts The Veteran's service treatment records show that he was hospitalized at a military hospital in September 1972 for multiple stab wounds. All of the wounds were found to be superficial except for a penetrating stab would to the left chest resulting in a hemopneumothorax. The Veteran was treated with tube thoracostomy. Service personnel records include A Report of Investigation, Line of Duty and Misconduct Status, dated in November 1972, finding that the Veteran's knife wounds were incurred during a fight that resulted from trafficking in illegal narcotics with another service member and that the Veteran had aggravated the fight. It was determined that the injuries were sustained during a period of unauthorized absence from the Veteran's assigned duties and that they were not in the line of duty and were due to the Veteran's own misconduct. The Veteran denied respiratory symptoms on a July 1973 Report of Medical History completed at separation, including shortness or breath and pain or pressure in his chest, and his July 1973 discharge examination shows a normal clinical evaluation of the lungs and chest, except for a scar on the left chest from the knife wound and thoracostomy. In August 2005, the Veteran filed a claim for VA benefits. He clarified in an August 2006 Report of Contact that he was filing for service-connected benefits and that he developed a lung condition after his lung puncture in service. On file is a VA Primary Care Clinic outpatient record in November 2006 containing the Veteran's report that he had been a counselor in Vietnam and had been attacked by a person he counseled that day causing a chest injury that required a chest tube. Nothing in this record, or in a November 2006 private medical record on file, or a January 2007 VA record on file, shows any findings or diagnoses regarding lung disabilities. An Administrative Decision issued in December 2006 found that the injuries the Veteran sustained on September 20, 1972, were the result of his own willful misconduct and were not incurred in the line of duty. The evidence relied on in making this determination included the Veteran's service treatment records, a complete copy of the line of duty investigation as conducted by the Army, and the Veteran's application for benefits. VA chest x-rays performed in May 2007 revealed an impression of focal soft tissue like density probably in the superior segment of the right lower lobe suspicious for a neoplastic process. This was noted to require additional follow up, probably with a computerized tomography (CT) to exclude a nodule. At a Board hearing at the RO in September 2008, the Veteran testified that he had had lung problems ever since the injury in service, but that he had just ignored it. He said that he recently had problems with a breathing test that his company administers each year that requires that he blow through a tube. He said that he had been given two types of medication to help him breathe better at night and to help with the wheezing. Regarding the line of duty determination, the Veteran said that "they" had been in the process of getting a drub rehab on post at the time and that he had been off duty at the time of the altercation. He said that the altercation had been about drugs and he asserted that he had been set up. Discussion As noted above, VA regulation clearly provides that an injury or disease is not considered to have been incurred "in line of duty" if it was the result of the Veteran's willful misconduct or if the Veteran was AWOL at the time the injury or disease was contracted. Here, the circumstances presented fit within both exceptions. That is, based upon all accumulated evidence, which clearly showed that the Veteran was in an AWOL status at the time of the stab wound injury and that following an investigation into the incident, it was determined that the Veteran aggravated the fight, which resulted from trafficking in illegal narcotics with another service member. These circumstances of injury are patently inconsistent with the requirements of 38 C.F.R. § 3.1(m) in that they constitute willful misconduct. That is, the Veteran's actions involved conscious wrongdoing or a known prohibited action. 38 C.F.R. § 3.1(n). Thus, the Board concludes that the Veteran's stab wound injury to the left chest was not contracted in the line of duty, as that term is defined, and as such, any residuals arising therefrom do not warrant service connection. 38 U.S.C.A. §§ 105, 1110; 38 C.F.R. § 3.1(m). Consideration has been given to the Veteran's report on a November 2006 VA outpatient record that the wound occurred in Vietnam when, while working as a counselor, he was attacked. Consideration has also been given to the Veteran's September 2008 hearing testimony that after getting off of work he was confronted by his attacker who demanded his drugs back and that the whole thing was a set up. The fact that these two reports are inconsistent with one another diminishes the credibility of the reports. Moreover, the Board finds that the Veteran's recollections of an event more than 30 years ago are not persuasive given the actual documentary evidence on file at the time of the incident that includes a thorough investigation of the incident, including witness statements. Accordingly, the Board finds, by a preponderance of the evidence, that the stab wound to the left chest, and any residuals therefrom, incurred by the veteran on September 20, 1972, were proximately due to willful misconduct and, thus, were not incurred in line of duty. 38 U.S.C.A. § 105; 38 C.F.R. §§ 3.1(m),(n). Notwithstanding the above, the Board must further decide whether the Veteran's claimed lung disability may otherwise have been incurred in line of duty. Notably, the Veteran has not asserted any other lung injury or problems other than the knife wound injury in September 1972. His service treatment records show no complaints of or treatment for lung problems other than the stab wound injury in September 1972. The Veteran denied respiratory symptoms on a July 1973 Report of Medical History he completed at separation, including shortness or breath and pain or pressure in his chest, and his July 1973 discharge examination shows a normal clinical evaluation of the lungs and chest, except for a scar on the left chest from the knife wound and thoracostomy. Regarding postservice evidence, the first and only medical record, indicating lung problems is a May 2007 chest x-ray report showing a focal soft tissue like density in the right lower lobe suspicious for a neoplastic process. This finding was made over three decades after the Veteran's service. Additionally, the post-service medical records are negative for any evidence suggesting or indicating that the veteran's reported lung problems are associated with service. In view of the absence of any evidence (medical or lay) of lung problems in service other than the not in the line of duty knife wound injury of September 1972 to the left chest, and the absence of medical evidence of a nexus between an in- service line of duty disease or injury and a present lung disability, the Veteran cannot prevail on this issue of service connection. Hickson v. West, 12 Vet. App. 247, 253 (1999). The Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine is inapplicable in the instant case because the preponderance of the evidence is against the Veteran's claim. See, e.g., Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). Accordingly, the appeal is denied. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for a bilateral foot disability is denied. Entitlement to service connection for a lung disability is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs