Citation Nr: 1006392 Decision Date: 02/22/10 Archive Date: 03/02/10 DOCKET NO. 07-05 319 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for varicose veins. 2. Entitlement to service connection for residuals of a right ankle injury. 3. Entitlement to service connection for a chronic disability manifested by poor circulation in the legs. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran served on active duty from October 1960 to November 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2005 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. Initially, the Board notes the RO adjudicated the claims of entitlement to service connection for a chronic disability manifested by poor circulation in the legs and entitlement to service connection for varicose veins as a single issue. The Board finds that this characterization was in error given the unique nature of these two disabilities. Therefore, the Board has recharacterized the issues on appeal as they appear on the first page of this decision so as to best reflect the Veteran's intentions when filling his claim. FINDINGS OF FACT 1. The preponderance of the competent and credible evidence of record does not show that the Veteran was diagnosed with varicose veins and/or residuals of a right ankle injury at any time during the pendency of the appeal. 2. The preponderance of the competent and credible evidence of record does not show that a chronic disability manifested by poor circulation in the legs, including ischemia, occurred in military service or that a chronic disability manifested by poor circulation in the legs, including ischemia, is otherwise related to service. CONCLUSIONS OF LAW 1. Varicose veins were not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1131, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2009). 2. Residuals of a right ankle injury were not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1131, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2009). 3. A chronic disability manifested by poor circulation in the legs was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1131, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The Board notes that the VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). Under 38 U.S.C.A. § 5102 VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. Second, under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits. The appellant must also be notified of what specific evidence he is to provide and what evidence VA will attempt to obtain. VA thirdly has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations. 38 U.S.C.A. § 5103A. Initially, the Board notes that in the current appeal there is no issue as to providing an appropriate application form or completeness of the application. Next, the Board finds that written notice provided in August 2004, September 2004, December 2004, May 2005, November 2005, March 2006, May 2006, and August 2006, fulfills the provisions of 38 U.S.C.A. § 5103(a) including notice of the laws and regulations governing the assignment of disability ratings and effective dates as required by the United States Court of Appeals for Veterans Claims (Court) in Dingess v. Nicholson, 19 Vet. App. 473 (2006). While the Veteran may not have been provided complete VCAA notice prior to the initial adjudication of his claims in the November 2005 rating decision, the Board finds that providing him with adequate notice in the above letters followed by a readjudication of the claims in the January 2007 statement of the case "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34. Moreover, the Board finds that even if the above letters failed to provide the Veteran with adequate 38 U.S.C.A. § 5103(a) notice, this notice problem does not constitute prejudicial error in this case because the record reflects that a reasonable person could be expected to understand what was needed to substantiate the claims after reading the above letters as well as the November 2005 rating decision and January 2007 statement of the case. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009). Furthermore, the Board finds that there can be no prejudice to the Veteran due to a lack of adequate 38 U.S.C.A. § 5103(a) notice where, as here, none has been specifically alleged. Id. VA has also secured all available pertinent evidence and conducted all appropriate development. Specifically, a review of the record on appeal shows that VA obtained and associated with the record all available and identified medical records. In this regard, a review of the record on appeal shows that the National Personnel Records Center (NPRC) in September 2004 notified the RO that the Veteran's service treatment records were not available and in correspondence dated from May 2005 to November 2005 NPRC also notified the RO that a search of alternative sources failed to uncover any of the Veteran's service treatment records. Moreover, in September 2004 and November 2005, the RO notified the Veteran of the loss of his service treatment records and of the unavailability of any alternative records. Where, as here, "service medical records are presumed destroyed, . . . the Board's obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt is heightened." O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The cases, however, do not establish a heightened "benefit of the doubt," but rather only a heightened duty of the Board to consider the applicability of the benefit of the doubt, to assist the claimant in developing the claim, and to explain its decision when the veteran's medical records have been destroyed. The case law does not lower the legal standard for proving a claim 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 appellant. Russo v. Brown, 9 Vet. App. 46 (1996). Therefore, adjudication of this claim may go forward without these records. See Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) (the "'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 . . . [and] this duty is limited to specifically identified documents that by their description would be facially relevant and material to the claim"). Similarly, the Board notes that a single April 2003 VA treatment record memorialized the Veteran's statement to his healthcare provider that he is in receipt of Social Security Administration (SSA) disability. However, that VA treatment record thereafter also noted that the Veteran was working. Moreover, in an earlier January 2002 VA treatment record the Veteran told his VA healthcare provider that he was in receipt SSA pension and not disability. Other VA treatment records also reported that the Veteran was working. In addition, despite the Veteran being asked by the RO in August 2004 and May 2006 to notify VA of the location of all relevant records, the claimant has never identified the SSA. In fact, in August 2004 and again in June 2007, he specifically notified VA that he had no other relevant evidenced to file in support of his appeal. Given the above evidence, the Board does not find the Veteran's one time claim regarding his being in receipt of SSA disability benefits credible. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002). Therefore, the Board finds that the facts of this appeal can be distinguished from those in Dixon v. Gober, 14 Vet. App. 168, 171 (2000) and Masors v. Derwinski, 2 Vet. App. 181, 188 (1992), where the Veteran had been granted SSA disability and VA did not obtain his SSA records, because in this appeal the record does not contain credible evidence of the claimant being in receipt of SSA disability benefits. Therefore, the Board finds that a remands to request these records is not required. See Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) (the "'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 . . . [and] this duty is limited to specifically identified documents that by their description would be facially relevant and material to the claim"). The record also shows that the Veteran was not afforded a VA examination in connection with his appeal. Nonetheless, the Board finds that a remand for a VA examination is not required when, as in this appeal, the post-service treatment records are negative for the claimant being diagnosed with a chronic disability at any time during the pendency of the appeal or for many decades after his separation from military service. See 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006); Also see Paralyzed Veterans of America, et. al., v. Secretary of Veterans Affairs, 345 F.3d 1334, 1356 Cir. 2003) (holding that if the evidence of record does not establish that the Veteran suffered an event, injury, or disease in service, no reasonable possibility exists that providing a medical examination or obtaining a medical opinion would substantiate the claim and therefore VA does not have an obligation to provide the claimant with such an examination or obtain an opinion because "a medical examination or opinion generally could not fill the gap left by the other evidence in establishing a service connection."); Godfrey v. Brown, 8 Vet. App. 113, 121 (1995) (holding that the Board is not required to accept a medical opinion that is based on the veteran's recitation of medical history). Accordingly, the Board finds that there is no identified, available, and pertinent evidence which is not currently part of the claims files. Hence, VA has fulfilled its duty to assist the Veteran in the prosecution of his claims and adjudication of this appeal may go forward. 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). The Claims The Veteran claims that he has residuals of a right ankle injury he sustained while on active duty as well as varicose veins and a chronic disability manifested by poor circulation in the legs due to his active duty. It is also requested that the Veteran be afforded the benefit of the doubt. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). 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 requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Klekar v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). As to the claims of service connection for varicose veins and residuals of a right ankle injury, the Board notes that the Veteran is competent and credible to report that he had swelling and discoloration in the veins of his legs as well as to report that he twisted/injured his right ankle while on active duty and has had pain and/or swelling since that time. Davidson, supra; Buchanan, supra; Jandreau, supra; Charles, supra. However, the Board does not find these assertions to be competent evidence of a current disability because as lay persons they do not have the required medical expertise to diagnose varicose veins or residuals of a right ankle injury because such a diagnosis requires medical expertise which they do not have because, while a problem with swollen and enlarged veins as well as a painful and swollen ankle may be observable to a lay person, the diagnosis of a chronic disability, such as varicose veins and residuals of that injury, requires special medical training. Id. Moreover, the Court has said that pain alone, without a diagnosed related medical condition, does not constitute a disability for which service connection may be granted. See Sanchez- Benitez v. West, 13 Vet. App. 282 (1999). Furthermore, while post-service treatment records document the Veteran's complaints, diagnoses, and/or treatment for diabetic ulcers and cellulitis in the right ankle as well as left and right medial venous ulcers, they are negative for a diagnosis of varicose veins or residuals of a right ankle injury despite the fact that they also document the fact that the claimant uses support stockings. In light of the above, the Board must conclude that the preponderance of the competent and credible evidence of record does not show the Veteran being diagnosed with varicose veins and/or residuals of a right ankle injury at any time during the pendency of her appeal. See Hickson, supra; McClain, supra. Where there is no disability, there can be no entitlement to compensation. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Therefore, entitlement to service connection for varicose veins and residuals of a right ankle injury must be denied. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. As to the claim of service connection for a chronic disability manifested by poor circulation in the legs and service incurrence under 38 C.F.R. § 3.303(a), the Board notes, as it did above, that the Veteran's service treatment records are not available. Moreover, the Board also notes, as it did above, that while the Veteran is competent and credible to report on the fact that his legs are cold, he is not competent and credible to diagnosis a chronic disability manifested by poor circulation in the legs because such a diagnosis requires special medical training which he does not have. Davidson, supra; Buchanan, supra; Jandreau, supra; Charles, supra. Moreover, the Board notes that, while the Veteran separated from military service in 1962, the record is silent as to a diagnosis a chronic disability manifested by poor circulation in the legs, diagnosed as ischemia, until 2004 - over four decades after his separation from active duty. Accordingly, entitlement to service connection for a chronic disability manifested by poor circulation in the legs based on in-service incurrence must be denied despite the Veteran's assertions. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). As to post-service continuity of symptomatology under 38 C.F.R. § 3.303(b), as noted above, the post-service record does not shows the Veteran being treated for a chronic disability manifested by poor circulation in the legs, diagnosed as ischemia, until 2004 - over four decades after his 1962 separation from active duty. The Board finds that the length of time between the Veteran's separation from active duty in 1962 and first being treated for a chronic disability manifested by poor circulation in the legs to be compelling evidence against finding continuity. Put another way, the four decade gap between the Veteran's discharge from active duty and the first evidence of a problem with circulation in the legs weighs heavily against his claim. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd., 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment for the claimed condition for many years after service); 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); Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the Veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition); Shaw v. Principi, 3 Vet. App. 365 (1992) (a Veteran's delay in asserting a claim can constitute negative evidence that weighs against the claim). In this regard, the Board acknowledges, as it did above, that the Veteran is competent to give evidence about what he sees and feels, for example, the claimant is competent to report that he had problems with his legs being cold since service, and his representative is competent to give evidence about what he sees. See Davidson, supra; Buchanan, supra; Jandreau, supra; Charles, supra. However, upon review of the claims folders, the Board finds that the assertions that the Veteran has had this problem since service are not credible. In this regard, his claim is contrary to what is found in the post-service medical records. Therefore, entitlement to service connection for a chronic disability manifested by poor circulation in the legs based on post-service continuity of symptomatology must be denied. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(b). As to the initial documentation of the disability after service under 38 C.F.R. § 3.303(d), the Board notes that the record is negative for a medical opinion finding a causal association or link between a chronic disability manifested by poor circulation in the legs and an established injury, disease, or event of service origin. See 8 U.S.C.A. § 1131; 38 C.F.R. § 3.303(d); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein). As to the Veteran's and his representative's claims that a chronic disability manifested by poor circulation in the legs was caused by his military service, the Board finds, as it did above, that this disability may not be diagnosed by its unique and readily identifiable features and therefore the presence of the disorder is a determination "medical in nature" and not capable of lay observation. Davidson, supra; Buchanan, supra; Jandreau, supra; Charles, supra. Therefore, since laypersons are not capable of opining on matters requiring medical knowledge, the Board finds that their opinions that this disability was were caused by service not credible. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998); see also Bostain v. West, 11 Vet. App. 124, 127 (1998). Based on the discussion above, the Board also finds that service connection for a chronic disability manifested by poor circulation in the legs is not warranted based on the initial documentation of the disability after service because the weight of the competent and credible evidence is against finding a causal association or link between the post-service disorder and an established injury, disease, or event of service origin. See 8 U.S.C.A. § 1131; 38 C.F.R. § 3.303(d); Rabideau, supra. Accordingly, the Board must conclude that the weight of the evidence is against the claim of service connection for a chronic disability manifested by poor circulation in the legs. See 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. In reaching the above conclusions, the Board also considered the doctrine of reasonable doubt. 38 U.S.C.A. § 5107(b). However, as the preponderance of the evidence is against the claims, the doctrine is not for application. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for varicose veins is denied. Service connection for residuals of a right ankle injury is denied. Service connection for a chronic disability manifested by poor circulation in the legs is denied. ____________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs