Citation Nr: 1300264 Decision Date: 01/04/13 Archive Date: 01/11/13 DOCKET NO. 09-17 769 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for a bilateral foot disability. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Michael Holincheck, Counsel INTRODUCTION The Veteran served on active duty from April 1954 to April 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran and his spouse testified before the undersigned Veterans Law Judge at a Travel Board hearing in October 2012. A transcript of the hearing is associated with the claims folder. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran does not have a back or bilateral foot disability that is attributable to his military service. CONCLUSIONS OF LAW 1. The Veteran does not have a low back disability that is the result of disease or injury incurred in or aggravated during active military service; nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). 2. The Veteran does not have a bilateral foot disability that is the result of disease or injury incurred in or aggravated during active military service; nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSIONS The law provides that service connection may be granted for disability resulting from disease or injury, contracted in the line of duty, incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). In addition, certain chronic diseases, including arthritis, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In the alternative, the chronicity provisions of 38 C.F.R. § 3.303(b) are applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service, or during an applicable presumptive period, and still has such condition. Such evidence must be medical unless it relates to a condition as to which under case law of the United States Court of Appeals for Veterans Claims (Court) or the United States Court of Appeals for the Federal Circuit (Federal Circuit), lay observation is competent. Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997). Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); accord Caluza v. Brown, 7 Vet. App. 498 (1995). In order for service connection to be granted for a claimed disability, there must be evidence of the current existence of such claimed disability. See Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); see also Brammer v. Derwinski, 3 Vet. App. 223 (1992) (current disability is a prerequisite to an award of service connection). The Veteran served on active duty from April 1954 to April 1956. He submitted his claim for service connection for a back disability and bilateral foot disability in November 2006. He reported that he received treatment at the dispensary at Fort Carson, Colorado, in 1954. He did not report any post-service treatment. The Veteran's service treatment records (STRs) are negative for evidence for either a back or foot condition. The Veteran's April 1954 pre-induction physical examination is negative for any abnormalities. The STR clinical entries show the Veteran was evaluated by mental hygiene in May 1954 because of repeated complaints regarding his heart, stomach, head and dizziness. The final assessment was mild anxiety reaction. His January 1956 separation physical examination was also negative for evidence of any type of back or foot problems. The Veteran submitted a statement in support of his claim in June 2007. He related how his unit would have to go out on maneuvers in the mountains in Colorado. They would have periods of classroom training in the day and then have to take turns standing duty at night. He said when they were on guard duty they would have to walk for two hours and be off for two hours and repeat the cycle. He said there was no heat at any time. They stayed in what he described as pup tents. He said that he lost feeling in his feet but did not report it because he was afraid he would be court-martialed. He said they were warned that would happen if anyone got frostbite. He said he sought treatment after service. The Veteran also said he got shots in his heels so that he could walk. He did not mention any back problems in service in his statement. The Veteran submitted a VA Form 21-4142, Authorization for Release of Information, identifying VA treatment from January 2005 to the present. He did not identify any other source of treatment. VA treatment records for the period from March 1998 to March 2009 are associated with the claims folder. The records do not reflect treatment for any type of back or foot complaint. Several entries note a problem list of medical conditions for the Veteran. Included in the list are lumbago and disc degeneration NOS (not otherwise specified). Osteoarthritis is also listed as a problem but the affected joint(s)/area(s) is not. It is not apparent how the conditions were included in the problem list; however, the VA records clearly do not provide evidence of any treatment for either a back or foot complaint. In addition, the Veteran was treated by VA in November 1956. The records from that treatment show he had a tonsillectomy. He also sought outpatient treatment for dental reasons in 1956. His claims folder also reflects several education benefit claims during the 1960's and 1970's. However, he did not submit a claim for disability compensation until 2007. The Veteran and his spouse testified at a Travel Board hearing in October 2012. The Veteran related that he injured his back on one occasion in service. He said they were falling out for formation one day and he fell down some stairs. He said he was sent to the clinic at that time. He said his back had hurt since that time. He was asked if he had sought treatment for his back after service but did not directly answer the question. The Veteran also briefly testified that his feet got cold in service and he sought treatment. He said he was told he had frostbite. He did not identify any post-service treatment. (His testimony of treatment in service is contrary to his prior statement of not seeking treatment for fear of being court-martialed). As noted above, the Veteran's STRs are negative for evidence of complaints or treatment for his claimed back and foot disabilities. His separation examination is also negative. The absence of entries in the STRs regarding the claimed disabilities is not dispositive. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Board has considered that lay evidence in the form of statements and testimony of the Veteran and his spouse is competent to establish evidence of symptomatology where symptoms are capable of lay observation even where there is no evidence in the STRs. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); Layno v. Brown, 6 Vet. App. 465, 469 (1994); Buchanan, supra. Further, a claimant is generally competent to introduce lay testimony of observable symptoms of disability and continuity of such symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although the Court and Federal Circuit has addressed the circumstances where lay evidence can/must be considered, both judicial bodies have also addressed where the Board may making findings that the lay statements are beyond the competence of the giver, or that the statements are not credible or the giver of the lay evidence is mistaken. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007); Jandreau, 492 F.3d at 1377. n.4 (Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer.). Here, however, the Veteran has not provided lay evidence of a current diagnosis regarding his claimed foot disability unless the listed problem of osteoarthritis is, assuming arguendo, related to his feet. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The only other evidence of a back disability is the listed diagnoses in the Veteran's problem list in his VA records. The only medical evidence of record, other than the STRs, consists of VA records. They do not reflect treatment for either claimed disability. As previously noted, the Veteran's problem list includes osteoarthritis, lumbago and disc degeneration, NOS without any evidence of treatment of those conditions from 1998 to 2009. Moreover, there is no objective evidence to relate any of those listed problems to the Veteran's military service. The 1956 entry related to a tonsillectomy. The Veteran did not file a claim or seek treatment from VA for either of the claimed disabilities at that time or for more than 40 years after service. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Upon review of all of the evidence of record, the Board finds that the Veteran's statements do not establish the existence of a current disability in regard to the back and feet that is related to his military service. The STRs are negative for supportive evidence. The VA treatment records do not relate any listed back problem to his service. There is no competent, objective evidence of a current bilateral foot disability. See Rabideau, Brammer, supra. The Veteran's statements are general conclusory statements that the claimed events in service resulted in the symptoms that he experiences today. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. Service connection is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2011). The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp 2012)), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. (The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008. See 73 Fed. Reg. 23353-56 (Apr. 30, 2008). The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request the veteran to provide any evidence in the veteran's possession that pertains to the claim. See 38 C.F.R. § 3.159(b)(1).) In addition, the Court has 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. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran submitted his claim for benefits in November 2006. The RO wrote to him in April 2007 with notice on how to substantiate his claim. The Veteran was advised of the evidence required to substantiate his claim for service connection. The letter informed the Veteran of the types of evidence that would be beneficial in supporting his claim. He was further advised of the information required from him to enable VA to obtain evidence on his behalf, the assistance that VA would provide to obtain evidence on his behalf, and that he should submit such evidence or provide VA with the information necessary for VA to obtain such evidence for him. He was asked to submit any medical reports that he possessed. The letter also included notice to the Veteran as to how VA determined disability ratings and effective dates. The Veteran responded to the letter in June 2007. He submitted notice of having received VA treatment. He also provided a statement regarding a claimed cold injury to his feet in service but stated he did not receive treatment in service. The Veteran's claim was denied in July 2007. He submitted his NOD in October 2007 and perfected his appeal in May 2009. He did not provide any additional evidence but provided additional comments as to why his claim should be granted. The Veteran has not disputed the contents of the VCAA notice in this case. He was afforded a meaningful opportunity to participate in the development of his claim. He demonstrated actual knowledge of what was required to establish service connection as evidenced by his statements and testimony regarding events in service. There is no evidence of prejudice to the Veteran based on any notice deficiency and he has not alleged any prejudice. Thus, the Board is satisfied that the duty to notify requirements under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) were satisfied. The Board also finds that VA has adequately fulfilled its obligation to assist the Veteran in obtaining the evidence necessary to substantiate his claim. All available evidence pertaining to the Veteran's claim has been obtained. The evidence includes his STRs, VA outpatient treatment records, and statements from the Veteran. The Veteran and his spouse testified at a Travel Board hearing in this case. The Veteran was not afforded an examination in regard to his claim. The Secretary must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (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 veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006). The Veteran did not satisfy the requirements in this case because of the lack of evidence to establish a current disability for the claimed bilateral foot disability. See Rabideau, Brammer, supra. He also failed to provide competent evidence of persistent or recurrent symptoms of a back disability. In the absence of establishing a current disability, or the existence of persistent or recurrent symptoms of a disability, no duty to provide an examination exists. The Board notes that the Veteran made a vague reference to possible missing records due to a fire in Colorado. The Veteran did not further describe the fire or what records were missing. As noted, his STRs included his entrance examination, clinical and dental entries and his separation examination. The records covered a period from April 1954 to January 1956. The Veteran signed a statement after his separation physical stating that he had not had a change in his physical status since his examination. The date of the entry is not included but it was clearly after his last examination. As noted, no back or foot problems were identified on the examination. There is no indication that the STRs associated with the claims folder are incomplete. The Board also notes that the Veteran checked the block on his claim form to indicate he was receiving disability benefits from the Social Security Administration (SSA) in November 2006. However, the RO conducted a computer query on his status and no disability payments were shown. The Veteran was in receipt of SSA benefits and was over the age of 65 at the time he submitted his VA claim. Thus, there no basis to conclude there are applicable outstanding SSA disability records. See Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010). The Board finds that VA has satisfied its duty to notify and assist. The Veteran has not identified any other pertinent evidence, not already of record. The Board is also unaware of any such evidence. ORDER Service connection for a back disability is denied. Service connection for a bilateral foot disability is denied. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs