Citation Nr: 1124075 Decision Date: 06/24/11 Archive Date: 06/29/11 DOCKET NO. 09-09 659 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a bladder disorder manifested by burning on urination. 2. Entitlement to service connection for a disability manifested by chest pain. 3. Entitlement to service connection for residuals of exposure to a microscopic virus. 4. Entitlement to service connection for a disability manifested by chronic sore throat (to include cough, fever, flu). 5. Entitlement to service connection for general malaise. 6. Entitlement to service connection for residuals of left foot strain. ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran had active military service from June 1969 to June 1973. This matter comes to the Board of Veterans' Appeals (Board) from a July 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the claims on appeal. Additional issues of entitlement to service connection for venereal warts and heart disease have been raised by the record via statements submitted by the Veteran in September 2007 and March 2008, but have not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over them, and they are referred to the RO for appropriate action. The issue of entitlement to service connection for a disability manifested by chronic sore throat (to include cough, fever, flu) is addressed in the REMAND portion of the decision below and REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant when further action is required. FINDINGS OF FACT Based upon the preponderance of the competent and probative evidence of record, the Veteran's claimed bladder disorder manifested by burning on urination, a disability manifested by chest pain, residuals of exposure to a microscopic virus, general malaise, and residuals of left foot strain are not related to active military service or any incident thereof. CONCLUSIONS OF LAW 1. A bladder disorder was not incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.304 (2010). 2. A disability manifested by chest pain was not incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.304 (2010). 3. No residuals of exposure to a microscopic virus was incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.304 (2010). 4. General malaise was not incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.304 (2010). 5. Residuals of left foot strain were not incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.304 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1) (2010). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or SSOC. Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has held that an error in VCAA notice should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, the appellant has not demonstrated any prejudicial or harmful error in VCAA notice and, as discussed herein, the Board has not identified any. In April 2007 VA sent the Veteran a letter informing him of the types of evidence needed to substantiate his claim and its duty to assist him in substantiating his claim under the VCAA. The letter informed the Veteran that VA would assist him in obtaining evidence necessary to support him claim, such as medical records, employment records, or records from other Federal agencies. He was advised that it is his responsibility to provide or identify, and furnish authorization where necessary for the RO to obtain, any supportive evidence pertinent to his claim. See 38 C.F.R. § 3.159(b)(1). The Board finds that the content of the letter provided to the Veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify and assist. In addition, the July 2007 rating decision, February 2009 SOC, and November 2010 SSOC explained the basis for the RO's action, and the SOC and SSOC provided him with additional periods to submit more evidence. In addition, we note that the decision of the Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006) requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date. This requirement was fulfilled in the April 2007 letter which VA sent to the Veteran. With regard to VA's duty to assist, VA obtained the Veteran's service treatment records (STRs) and the Veteran submitted private treatment records. The RO did not afford the Veteran a VA examination for a bladder condition manifested by burning urination, a disability manifested by chest pain, exposure to microscopic virus, general malaise, and residuals of left foot strain, on the basis that there is already sufficient medical evidence to decide the claim, and the Board agrees. In McClendon v. Nicholson, 20 Vet. App. 79 (2006), the Court reviewed the criteria for determining when an examination is required by applicable regulation and how the Board applies 38 C.F.R. § 3.159(c). The three salient benchmarks are: competent evidence of a current disability or recurrent symptoms; establishment of an in-service event, injury, or disease; and indication that the current disability may be associated with an in-service event. There is no indication that a bladder condition manifested by burning urination, a disability manifested by chest pain, exposure to microscopic virus, general malaise, and residuals of left foot strain are associated with service, as discussed below in detail. Therefore, the Board finds that the evidence of record does not trigger the necessity of an examination in order to decide the claim on the merits. See 38 C.F.R. § 3.159(c). It appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims file, and he has not identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. It is therefore the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claims, and to respond to VA notices. Accordingly, we find that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA, as to the issues decided in the present decision. Therefore no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefits flowing to the Veteran. The Court of Appeals for Veteran Claims has held that such remands are to be avoided. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). III. Service connection A. Applicable Law Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2010); 38 C.F.R. § 3.303(a) (2010). Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation in service will permit service connection. To show 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may be granted for disease that is diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). The Court of Appeals for Veterans Claims has held that, in order to prevail on the issue of service connection, 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 present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). When there is an approximate balance in the 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(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. B. Facts and Analysis The Veteran seeks service connection for a bladder condition manifested by burning urination, a disability manifested by chest pain, residuals of exposure to a microscopic virus, general malaise, and residuals of left foot strain. The STRs show the Veteran was treated for a flu syndrome in December 1969. He had general malaise, chills, nausea, and a temperature of 102 degrees. A September 1970 treatment record shows complaints of burning on urination and urethral discharge. He was prescribed pyridium. An October 1970 treatment record shows complaints of chest pain times one week after being hit in the chest with a football. Physical examination showed tenderness of the ribs. The impression was probable rib fracture one week before. In January 1972, the Veteran was found to have a ligamentous strain in the medial side of the left foot. There is no further mention of treatment for any of those ailments. The May 1973 discharge examination report shows that clinical evaluation of the chest, genitourinary system, and feet was normal. Laboratory findings including urinalysis also were negative. The Veteran submitted copies of private treatment records dated from November 1973 to January 1997. An February 1977 treatment record notes a finding of general malaise, and an October 1989 treatment record notes a finding of questionable gout with no complaints of foot pain. In December 1993, the Veteran also was found to have general malaise. None of the treatment records show ongoing findings related to a bladder disorder, chest pain, residuals of exposure to a microscopic virus, general malaise, or residuals of foot strain. Rather, he had intermittent treatment within a 20-year time frame. Continuity of the claimed disorders since service has not been established by the evidence. The Board acknowledges that the Veteran is competent to give evidence about what he experienced; for example, he is competent to discuss his current experienced symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Moreover, the Federal Circuit Court has held that in certain situations, lay evidence can even be sufficient with respect to establishing medical matters such as a diagnosis. Specifically, in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit commented that competence to establish a diagnosis of a condition can exist when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See also Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms). Similarly, the Court of Appeals for Veterans Claims has held that, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Furthermore, lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, the resolution of issues which involve medical knowledge, such as the diagnosis of a disability and the determination of medical etiology, requires professional evidence. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). In the present case, the Veteran's symptoms associated with his claimed bladder disorder, chest pain, residuals of exposure to microscopic virus, general malaise, or residuals of foot strain are found to be capable of lay observation, and thus his statements constitute competent evidence. The Board must now consider the credibility of such evidence. As noted, while the STRs show treatment for general malaise, burning urination, chest pain, and foot strain, there is no evidence that any of the claimed disabilities persisted on a chronic or continuous basis during service or after service. In light of these factors, any current statements to the effect that he has experienced continuous symptomatology since active service, while competent, are not deemed to be credible. Therefore, the absence of documented chronic complaints or treatment following his military discharge is more probative than his current recollection as to symptoms experienced in the distant past. See Curry v. Brown, 7 Vet. App. 59 (1994). Moreover, there are no competent opinions relating any of the claimed disabilities to military service. Accordingly, continuity of symptomatology is not established by either the competent evidence or the Veteran's own statements. We recognize the apparent sincerity of the arguments advanced by the Veteran that his bladder disorder, chest pain, residuals of exposure to a microscopic virus, general malaise, and residuals of foot strain are service connected. However, there is no objective evidence supporting his assertions. Moreover, resolution of issues that involve medical knowledge, such as the diagnosis of a disability and the determination of medical etiology, requires professional evidence. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). It is true that the Veteran's lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); see Jandreau, supra; Buchanan, supra (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when a lay person is competent to identify the medical condition, the lay person is reporting a contemporaneous medical diagnosis, or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, supra. However, a bladder disorder, chest pain, exposure to microscopic virus, general malaise, and residuals of foot strain require specialized training for a determination as to diagnosis and causation, and are therefore not susceptible of lay opinions as to cause or etiology. As noted above, the Veteran has not been treated for a bladder disorder, chest pain, residuals of exposure to a microscopic virus, or residuals of foot strain after his separation from service, he has manifested only two findings of general malaise in the 38 years since service, and there are no competent opinions of record that any of the claimed disabilities are related to service. Since the Veteran has not had symptoms at any time since service, there cannot have been continuity of symptomatology since his release from active duty. See 38 C.F.R. § 3.303(b). Moreover, there is no medical evidence of record showing any present disabilities related to complaints of a bladder disorder, chest pain, exposure to microscopic virus, general malaise, or residuals of foot strain. A symptom alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability. With respect to the service connection claim for exposure to microscopic virus, a laboratory finding is not, in and of itself, an actual disability for which VA compensation benefits are payable. See generally 61 Fed. Reg. 20,440, 20,445 (May 7, 1996). There is no evidence that the Veteran has underlying disability due to exposure to a microscopic virus, and as such this alone is not a "disability" for VA compensation benefits purposes. With respect to the claims for burning on urination, general malaise, and chest pain, without a pathology to which the complaints can be attributed, there is no basis to find a disorder for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001) (pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted). Absent proof of the existence of the disability being claimed, there can be no valid claim. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Degmitech v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). The Board recognizes the Court has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis may be negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). However, where the overall record fails to support a current diagnosis of the claimed disability, that holding is inapplicable. Because the preponderance of the evidence is against the claims for service connection for a bladder disorder, chest pain, exposure to microscopic virus, general malaise, and residuals of foot strain, the benefit-of-the-doubt doctrine is inapplicable, and the claims must be denied. 38 U.S.C.A. § 5107(b); Gilbert, supra. ORDER Entitlement to service connection for a bladder disorder manifested by burning on urination is denied. Entitlement to service connection for a disability manifested by chest pain is denied. Entitlement to service connection for exposure to a microscopic virus. Entitlement to service connection for general malaise is denied. [Continued on Next Page] Entitlement to service connection for residuals of left foot strain is denied. REMAND The Veteran seeks service connection for a disability manifested by a chronic sore throat (to include cough, fever, and flu). The STRs show that he was treated for flu syndrome in December 1969 and for a head cold with a sore throat, runny nose, ears being "stopped up," and non-productive cough in January 1971. After service, private treatment records dated from November 1973 to January 1997 show continued complaints of sore throat and dry coughing. Findings included acute tonsillitis, pharyngitis, allergic rhinitis, and bronchitis. Because the record shows symptoms of having a sore throat in service and continued findings of sore throat for more than 20 years post-service with various diagnoses to possibly account for the chronic symptoms, a medical examination is warranted to determine whether the Veteran has any present disability manifested by a chronic sore throat that is related to his military service. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a letter asking him to identify any current or past treatment he has received for any disability manifested by a chronic sore throat, to include cough, fever, and flu (other than the records he already submitted), and obtain his authorization to obtain such records. 2. Schedule the Veteran for a VA ear, nose, and throat examination to determine whether it is at least as likely as not (i.e., to at least a 50/50 degree of probability) that he has any current disability manifested by a chronic sore throat (to include cough, fever, and flu) that is causally related to the findings of sore throat in service; or whether such a causal relationship between any present disability and service is unlikely (i.e. less than a 50/50 degree of probability). Note: As used above, the term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. The claims file, to include private treatment records dated from 1973 to 1997 plus any newer records identified by the Veteran and obtained on Remand, as well as a copy of this Remand, must be available for review in conjunction with the examination. All relevant information of record should be considered. A complete rationale must be provided for any medical opinion. If the above questions cannot be answered without resort to speculation or remote possibility, the examiner must indicate why that is so. 3. When the development requested has been completed, readjudicate the case on the basis of the additional evidence,. If the benefit sought is not granted, furnish the Veteran with a Supplemental Statement of the Case and afford a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ___________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs