Citation Nr: 1215167 Decision Date: 04/26/12 Archive Date: 05/07/12 DOCKET NO. 09-49 509 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for a bilateral foot disorder, to include nerve damage and arthritis. 2. Entitlement to service connection for a lower abdominal hernia. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD M. J. In, Associate Counsel INTRODUCTION The Appellant served on active duty for training from September 1986 to January 1987. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from November 2007 and July 2008 rating decisions by the Department of Veterans Affairs (VA) Regional Office in Milwaukee, Wisconsin (RO). The issue of entitlement to service connection for a bilateral foot disorder, to include nerve damage and arthritis, is addressed in the remand portion of the decision below and is remanded to the RO via the Appeals Management Center in Washington, DC. FINDING OF FACT The evidence of record does not show a current diagnosis for a lower abdominal hernia that is related to the Appellant's military service or to any incident therein. CONCLUSION OF LAW A lower abdominal hernia, or residuals therefrom, was not incurred in, or aggravated by, active military service. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the Appellant's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). Proper notice from VA must inform the claimant of any information and medical or lay 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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). The RO's July 2008 letter advised the Appellant of the foregoing elements of the notice requirements. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). With respect to the Dingess requirements, the RO's July 2008 notice letter provided the Appellant with notice of what type of information and evidence was needed to establish disability ratings, as well as notice of the type of evidence necessary to establish an effective date. Accordingly, with this letter, the RO effectively satisfied the remaining notice requirements with respect to the issue of entitlement to service connection for lower abdominal hernia. Further, the purpose behind the notice requirement has been satisfied because the Appellant has been afforded a meaningful opportunity to participate effectively in the processing of his claim, including the opportunity to present pertinent evidence. In any event, the Appellant has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). The duty to assist the Appellant has also been satisfied in this case. The RO has obtained the Appellant's available service treatment records as well as all of his identified and available post-service treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that a VA examination is not required in this case. The evidence of record does not show a current diagnosis of any residuals of lower abdominal hernia. Thus, a VA medical examination addressing the etiology of the claimed disorder is not required. See 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Finally, there is no indication in the record that additional evidence relevant to the issue being decided herein is available and not part of the record. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (finding that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis herein focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, 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); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). The Appellant's service treatment records are negative for any complaints, treatments, or diagnoses of lower abdominal hernia. After separation from service, a November 2008 private treatment report noted a past medical history of status post inguinal hernia repair in the early 1970s. No current complaints or findings were noted for any residuals of a lower abdominal hernia. The Appellant claims that he had a hernia operation at the age of five years old, but it recurred while he was in basic training. He reported that the hernia recurred, but he has not received any medical treatment for this disorder. The Appellant does not contend that he is currently experiencing any specific symptoms of a lower abdominal hernia. "Congress specifically limits entitlement for service- connected disease or injury to cases where such incidents have resulted in a disability. . . . In the absence of proof of present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). With no evidence of a current disability, service connection for a lower abdominal hernia is not warranted. As there is no medical evidence that provides a diagnosis of a lower abdominal hernia or any residuals thereof, the preponderance of the evidence is against this claim for service connection. Therefore, the doctrine of reasonable doubt is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection for a lower abdominal hernia is not warranted. ORDER Service connection for a lower abdominal hernia is denied. REMAND The Appellant is seeking service connection for a bilateral foot disorder, to include nerve damage and arthritis. He claims that the onset of this foot disorder was during his active duty for training. Based upon its review of the Appellant's claims file, the Board finds there is a further duty to assist the Appellant with his claim herein. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2011). In disability compensation claims, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the claimant's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for VA to make a decision on the claim. 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third prong, which requires that the evidence of record "indicates" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. Here, the Appellant claims he currently has bilateral foot pain due to nerve damage and arthritis that developed in basic training while on active duty for training from 1986 to 1987. Specifically, through various written statements and testimony before the August 2009 RO hearing, the Appellant has reported that he was issued a pair of poorly fitting boots, which caused him extreme pain in the course of performing the strenuous activities of basic and infantry training that included a 24 mile-long road march in the desert of New Mexico. He stated that since that time he had problems standing or walking for long periods of time. His uncle testified at the August 2009 hearing that he noticed that since the Appellant returned from military service, the Appellant never wore a regular shoes and that he observed the Appellant limping during the previous several years. In this regard, an October 1986 service treatment report shows that the Appellant complained of blisters and infection on the left foot for approximately two weeks. Additionally, on physical examination, there was a healing blister on his right foot, three centimeter in size, above the first metatarsal phalangeal joint, with superficial inflammation. Although the Appellant's service treatment records do not reference any specific diagnosis of a bilateral foot disorder, the record includes lay statements that the Appellant had painful feet following his basic training in service, and that the Appellant had problems with his feet since that time. Private treatment records noted assessments of possible inflammatory arthritis and polyarthralgia with regard to his complaints of bilateral foot pain. The Board finds that a VA examination is necessary to adequately decide the merits of the claim herein. Id. Accordingly, the case is remanded for the following actions: 1. The RO must afford the Appellant the opportunity to identify or submit any additional pertinent VA and non-VA evidence in support of his claim of entitlement to service connection for a bilateral foot disorder, to include nerve damage and arthritis. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Regardless of his response, the RO must attempt to obtain and associate with the claims file any of the Appellant's VA treatment records. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure the same, the RO must notify the Appellant and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that the Appellant is ultimately responsible for providing the evidence. The Appellant must then be given an opportunity to respond. 2. Thereafter, the Appellant must be afforded a VA examination to determine whether any bilateral foot disorder found is related to his military service. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. After a clinical examination of the Appellant, following a review of the evidence of record, and with consideration of the Appellant's statements, the examiner must state whether any current bilateral foot disorder found is related to the Appellant's active duty for training. A complete rationale must be provided for all opinions expressed. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 3. The RO must notify the Appellant that it is his responsibility to report for the scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2011). In the event that the Appellant does not report for a scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. The examination report must be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures. 5. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim of entitlement to service connection for a bilateral foot disorder must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Appellant. After the Appellant has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Appellant until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs