Citation Nr: 1304200	
Decision Date: 02/06/13    Archive Date: 02/19/13

DOCKET NO.  11-04 874	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUES

1.  Entitlement to service connection for infection and removal of a cyst from the lower back with residual scar tissue.

2.  Entitlement to service connection for residuals of cold injury of the feet.

3.  Entitlement to service connection for hypertension.




ATTORNEY FOR THE BOARD

L. J. N. Driever



INTRODUCTION

The Veteran had active military service from September 1953 to October 1956.

This appeal to the Board of Veterans' Appeals (Board) is from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

In his February 2011 Substantive Appeal (on VA Form 9), the Veteran requested a hearing at the RO before a Veterans Law Judge of the Board.  But in a written statement since received in September 2011, the Veteran withdrew this hearing request.  38 C.F.R. § 20.704(e) (2012).

The Board has advanced his appeal on the docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

However, his claim of entitlement to service connection for infection and removal of a cyst from his lower back, with residual scar tissue, requires further development before being decided on appeal.  So the Board is remanding this claim to the RO via the Appeals Management Center in Washington, D.C.  Whereas the Board, instead, is going ahead and deciding his remaining two claims for residuals of cold injury of his feet and hypertension.


FINDINGS OF FACT

1.  The Veteran does not currently have residuals of a cold injury to his feet.

2.  His hypertension is unrelated to his active military service and did not manifest to a compensable degree within a year of his discharge from service.



CONCLUSIONS OF LAW

1.  Residuals of a cold injury to the feet were not incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012).

2.  Hypertension also was not incurred in or aggravated by active military service and may not be presumed to have been.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  The Veterans Claims Assistance Act (VCAA)

Upon receipt of a complete or substantially complete application for benefits, VA is tasked with satisfying certain procedural requirements outlined in the VCAA and its implementing regulations.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

The U. S. Court of Appeals for Veterans Claims (Court/CAVC) has mandated that VA ensure strict compliance with these provisions of the VCAA.  Quartuccio v. Principi, 16 Vet. App. 183 (2002).

A.  Duty to Notify

The VCAA and its implementing regulations provide that VA is to notify a claimant and his representative, if any, of the information and 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 his representative, if any, of which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf.  38 U.S.C.A. § 5103.

These notice requirements apply to all five elements of a service-connection claim: (1) Veteran status; (2) existence of disability; (3) a connection between service and the disability; (4) degree of disability; and (5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).  

Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  If, however, for whatever reason it was not, or the notice provided was inadequate or incomplete, this timing error can be effectively "cured" by providing any necessary VCAA notice and then readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC) - such that the intended purpose of the notice is not frustrated, rather preserved, and the Veteran is given ample opportunity to participate effectively in the adjudication of the claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The U. S. Supreme Court has made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, instead, must be judged on a case-by-case basis.  And as the pleading party attacking the agency's decision, the Veteran has the burden of proof of not only establishing error but also, above and beyond that, of showing how it is unduly prejudicial, meaning outcome determinative of his claim, i.e., more than harmless.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

In this particular case at hand, the RO provided the Veteran VCAA notice concerning his claims by way of letters dated in September 2008, October 2008, January 2009, April 2010, November 2010 and April 2012 and telephone and email contacts in January 2008, August 2009, September 2009, October 2009 and June 2010.  The content of these letters and contact reports reflects compliance with the pertinent statutory and regulatory provisions and case law, noted above.  

Therein, the RO acknowledged the claims being decided, notified the Veteran of the evidence needed to substantiate those claims, identified the type of evidence that would best do so, notified him of VA's duty to assist and indicated it was developing his claims pursuant to this duty.  The RO also provided him all necessary information on "downstream" disability ratings and effective dates.  As well, the RO identified the evidence it had received in support of his claims, the evidence it had requested, but not received, and the evidence it was responsible for obtaining.

The RO indicated it would make reasonable efforts to assist him in obtaining all other outstanding evidence, provided he identified the sources of it.  The RO also noted that, ultimately, it was his responsibility to ensure VA's receipt of all pertinent evidence.

Via the letters and contacts and a memorandum dated in October 2009, the RO informed the Veteran that it had attempted to obtain his service treatment records (STRs) on multiple occasions, but unfortunately had learned they are unavailable, apparently having been destroyed in a 1973 fire at the National Personnel Records Center (NPRC), which is a military records storage facility in St. Louis, Missouri.  See Dixon v. Derwinski, 3 Vet. App. 261 (1992) (holding that, where a Veteran's STRs have been destroyed or lost, through no fault of his, VA has a duty to advise him to obtain other forms of evidence, such as lay testimony, to support his claim).  To this end, the RO advised him that, given these circumstances, it would help him reconstruct his service file.  Although the RO did not specifically indicate there was certain evidence he could submit to substitute or try and compensate for his missing STRs, it did identify alternate types of documents he could submit to establish incurrence of a relevant disease or injury in service, including "statements from persons who knew [him]".  

Some of the notice letters and contact reports were not sent in the preferred sequence, having been provided after the RO initially adjudicated these claims.  But this was rectified ("cured") because the claims were readjudicated in a November 2012 SSOC, so since providing all required notice.  See again Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007).  

B.  Duty to Assist

VA also has a duty to assist a claimant in obtaining evidence necessary to substantiate a claim, but assistance is not required if there is no reasonable possibility that it would aid in substantiating the claim.  38 U.S.C.A. §§ 5103(a), 5103A (West 2002); 38 C.F.R. § 3.159(b), (c) (2012).

In this case, the RO attempted to obtain all evidence the Veteran identified as being potentially pertinent to his claims.  However, as previously indicated, it learned that his STRs had been destroyed in a fire and that some of the post-service treatment records he had identified were unobtainable. 

In a case, as here, in which the records concerning a Veteran's service are unavailable through no fault of his own, there is a heightened duty to assist him in developing his claim and to provide reasons or bases for any adverse decision rendered without the benefit of these records, including with consideration of the benefit-of-the-doubt doctrine.  See O'Hare v. Derwinski, 1 Vet. App. 365 (1991); Moore v. Derwinski, 1 Vet. App. 401 (1991) (holding that the heightened duty to assist a Veteran in developing facts pertaining to his claim in a case in which his STRs are presumed destroyed includes the obligation to search for alternative medical records, such as by having him complete and return National Archives (NA) Form 13055 so the RO can obtain abstracts, etc., from the Surgeon General's Office (SGO)).  See also Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005), citing Russo v. Brown, 9 Vet. App. 46, 51 (1996); and Cuevas v. Principi, 3 Vet. App. 542, 548 (1992).  In this case, with the information provided, the RO attempted to reconstruct the Veteran's service records and, as explained below, with regards to his claim of entitlement to service connection for residuals of a cold injury to his feet, ultimately accepted as sufficient proof of service incurrence alternative evidence substantiating his assertions of this alleged trauma.  See 38 U.S.C.A. § 1154(a).


But although, in this circumstance, VA has a heightened duty to consider the applicability of the benefit-of-the-doubt rule, to assist him in developing the claims, and to explain the reasons and bases for its decision, missing STRs, alone, while indeed unfortunate, do not obviate the need for him to still have competent and credible evidence supporting his claims by suggesting a correlation between his currently claimed conditions and his military service.  See Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore, 1 Vet. App. at 406) and O'Hare, 1 Vet. App. at367).  That is to say, missing STRs do not lower the threshold for an allowance of a claim; there is no reverse presumption for granting a claim.  The legal standard for proving a claim is not lowered; rather, the Board's obligation to discuss and evaluate evidence is heightened.  See, too, Russo v. Brown, 9 Vet. App. 46 (1996).  Cf. Collette v. Brown, 82 F.3d 389, 392-93 (Fed. Cir. 1996); Arms v. West, 12 Vet. App. 188, 194-95 (1999).

The important point to remember here is that VA has conceded he sustained relevant trauma (cold weather injury) during his military service, thereby lessening the importance of not having his STRs because, for all intents and purposes, VA is conceding the occurrence of that event during his service.  So his missing STRs are not ultimately determinative of his claim, if recognizing that there still in any event has to be medical evidence establishing he presently has disability as a result or consequence of that accepted trauma in service.

To assist in making this important determination of causation, the RO provided him a VA compensation examination of his feet, during which the examiner addressed whether the Veteran had residuals of a cold weather injury to his feet (so, again, if accepting as true that he had sustained this injury to his feet during his service).

The RO did not afford him a VA compensation examination concerning his claim for service connection for hypertension; however, VA is not obligated to provide him an examination concerning this other claim.

Under 38 U.S.C.A. § 5103A(d)(2) and 38 C.F.R. § 3.159(c)(4), VA's duty to assist includes providing a claimant a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on a claim and the file contains competent evidence the claimant has a current disability or persistent or recurrent symptoms of a disability and indicates the disability may be associated with his military service.  The types of evidence indicating a current disability may be associated with military service include, but are not limited to, medical evidence suggesting a nexus or link but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation.  McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).  See also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (When determining whether a VA examination and medical opinion are required under 38 U.S.C. § 5103A(d)(2), the law requires competent evidence of a disability or persistent or recurrent symptoms of a disability, but does not require competent evidence of a nexus, only that the evidence suggest an association between the disability and service or a 
service-connected disability.)

Here, though, as explained below, there is no competent and credible evidence of record suggesting the required nexus or linkage between the Veteran's hypertension and his military service, and he does not assert continuity of associated symptoms, although he has mentioned continuity of treatment.  Symptoms, not treatment, however, are the essence of continuity of symptomatology under 38 C.F.R. § 3.303(b).  In the absence of such evidence, VA's duty to assist him in the development of this claim by affording him an examination for an opinion is not triggered.  VA is not required to schedule an examination for a medical nexus opinion merely as a matter of course, such as just because he alleges there is a relationship or correlation between his claimed disability and his military service.  See Duenas v. Principi, 18 Vet. App. 512, 519 (2004) (indicating that, generally, VA is not obligated to provide an examination for a medical nexus opinion based on unsubstantiated lay statements alone, as this would circumvent the carefully tailored language indicating when an examination and opinion are required and in turn necessitate that VA provide an examination and opinion in virtually every case).


Given all that has occurred, it is difficult to discern what additional guidance VA could have provided the Veteran regarding what further evidence he should submit to substantiate his claims.  See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims.").  See also Reyes v. Brown, 7 Vet. App. 113, 116 (1994) and Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances when a remand would not serve any useful or meaningful purpose or result in any significant benefit to the Veteran and, instead, place even greater burden on VA's already limited resources).

In deciding these claims, the Board has reviewed all of the evidence in the Veteran's claims file, both his physical and electronic ("Virtual VA") file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by him or obtained on his behalf be discussed in exhaustive detail.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each and every piece of evidence).  Rather, the Board's analysis below focuses on the most salient and relevant evidence, and on what this evidence shows, or fails to show, with respect to the claims.  See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000) (the law requires only that the Board discuss its reasons for rejecting evidence favorable to him).

II.  Analysis

The Veteran is claiming entitlement to service connection for residuals of 
cold-weather injury to his feet and for hypertension.  According to his application for VA compensation or pension benefits and in written statements he submitted in November 2008 and January 2009, he received treatment for both conditions during his service, for numbness in and scar tissue on his feet beginning in February 1956 and for high blood pressure beginning in May 1956, at Elmendorf Air Force Base in Anchorage, Alaska.  Also, allegedly, from 1956 to 1958, from 1958 to 1961, from 1961 to 1983 and from 1984 to 1999, he continued to receive treatment for high blood pressure from Drs. P., E. and T. and at Family Health Clinic in Eutaw, Alabama, although the records of that treatment are unavailable.  He also asserts that, during all but the initial time period, he continued receiving treatment as well for residuals of the cold injury from Drs. E. and T. and at Family Health Clinic in Eutaw, Alabama, but the records of this treatment also are unavailable.

In support of his claims, the Veteran has submitted a written statement of his former spouse, L.E.  According to her, she was married to him from 1955 to 1957, during which time they lived in Biloxi, Mississippi (with the Veteran then stationed at Kessler Air Force Base) and in Anchorage, Alaska (with Veteran then stationed at Elmendorf Air Force Base).  She asserts that, while at the latter base, he experienced trouble with his feet following an overnight march in a temperature of below 20.  She further asserts that, after he developed frostbitten feet, he began having high blood pressure.  She contends he never had problems with his feet or high blood pressure while living in Biloxi, Mississippi.

Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty.  38 U.S.C.A. §§ 1110, 1111, 1131, 1153; 38 C.F.R. §§ 3.303(a), 3.304, 3.306.

Establishing entitlement to direct service connection generally requires:  (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of the claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a nexus or link between the injury or disease in service and the current disability.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002).

Organic diseases of the nervous system are chronic, per se, and therefore will be presumed to have been incurred in service if manifested to a compensable degree (generally meaning to at least 10-percent disabling) within one year after service.  This presumption, however, is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a).

If chronicity (i.e., permanency) of disease or injury in service is not shown, or legitimately questionable, then a showing of continuity of symptomatology following service is required to support the claim.  38 C.F.R. § 3.303(b).  See also Savage v. Gober, 10 Vet. App. 488, 494-97 (1997).  Under § 3.303(b), an alternative method of establishing the second and third Shedden elements is through a demonstration of continuity of symptomatology.  See also Clyburn v. West, 12 Vet. App. 296, 302 (1999).  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, 10 Vet. App. at 495-96; see also Hickson v. West, 12 Vet. App. 247, 253 (1999) (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection).

To establish a showing of chronic disease in service, or within a presumptive period per § 3.307, 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," is required.  38 C.F.R. § 3.303(b).  Subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  Id.

In-service notation of a condition does not require medical evidence where "the condition is of a type as to which a lay person's observation is competent."  Savage, 10 Vet. App. at 497.  However, although prong (3) does not require medical nexus evidence, "because it would not necessarily follow that there is a relationship between any present disability and the continuity of symptomatology demonstrated, medical evidence is required to demonstrate such a relationship unless such a relationship is one as to which a lay person's observation is competent."  Id (citations omitted).


A layperson is generally incapable of opining on matters requiring medical knowledge.  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).  However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when:  (1) a layperson is competent to identify the medical condition (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (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 Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  So in certain instances lay evidence has been found to be competent with regards to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet).

This is not always the case, however, as in certain other instances laypersons have not been found to be competent to provide evidence in more complex medical situations, such as concerning a form of cancer.  See also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever); Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue).

When this occurs, there must be supporting medical evidence.  Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also include statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).

In essence, then, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection."  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  See also 38 C.F.R. § 3.159(a)(2).  A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation).  Savage, 10 Vet. App. 488, 494-97.  

When, for example, 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.  In such cases, the Board is within its province to weigh that testimony and make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).

Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a).  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  As held in Davidson, section 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  See also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence" such as actual treatment records).  But see, too, Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (indicating that, for non-combat Veterans providing non-medical related testimony 

regarding an event during service (or where the incident, event, injury or disease in question is not claimed to have occurred in combat), Buchanan is distinguishable; the lack of documentation in service records must be weighed against the Veteran's statements).

A Veteran is competent to report what he/she can observe and feel through the senses.  See Layno.  Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).  When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011).

"Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology" under 38 C.F.R. § 3.303(b).  Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)).

But once evidence is determined to be competent, the Board must additionally determine whether the evidence also is credible, as only then does it ultimately have probative value.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted).


In ultimately rendering a decision on appeal, the Board must analyze the competency, then credibility, and consequent probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  To this end, the Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit Court, citing its decision in Madden, recognized that the Board had inherent fact-finding ability.  Id., at 1076; see also 38 U.S.C.A. § 7104(a).  Moreover, the Veteran's Court similarly has declared that, in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).

As a finder of fact, when considering whether lay evidence is satisfactory (meaning both competent and credible), the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing when he has testified.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  See, too, Macarubbo v. Gober, 10 Vet. App. 388 (1997) (similarly 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).

Service connection may be granted for a disease first diagnosed after discharge when the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).

The determination as to whether these requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor.  38 C.F.R. § 3.102.

A.  Residuals of Cold-Weather Injury

The Veteran had active military service from September 1953 to October 1956, so partly during the Korean Conflict.  As previously indicated, his STRs are unavailable to substantiate his assertion of cold-weather injury during an overnight march in below freezing temperatures in Anchorage, Alaska.  He has, however, submitted his daughter's birth certificate and his former spouse's written statement supporting his assertion, which the Board finds sufficient to establish that during the 1950s, while in service in Anchorage, Alaska, he was exposed to extreme cold weather as alleged.  The question thus becomes whether he currently has residuals of that cold exposure, including numbness in and scarring of his feet, as alleged, or any other cold-related foot conditions.  See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.").  And, unfortunately, it is in this equally critical respect that the evidence is less favorable to his claim.

Post-service private treatment records in the claims file establish that, since 2007, the Veteran has been receiving treatment for pain associated with multiple foot abnormalities, including hammertoe contractures bilaterally, plantar spurring, posterior heel spurring, diffused degenerate changes, an HAV deformity bilaterally with associated pre-ulcerative callouses, metatarsalgia and onychomycosis, and for diabetes and rheumatoid arthritis, which too can cause foot-related symptoms.  During treatment visits, no health care provider attributed any of these foot abnormalities or symptoms to a cold injury.

During a VA examination in November 2012 for the purpose of determining whether any of these abnormalities are residuals of the cold-weather injury he concededly sustained in service, the examiner determined the findings shown were inconsistent with a cold injury.  She acknowledged the Veteran's reported history of the cold injury (five-mile march, during which he had to sleep in snow, take off his socks and shoes to warm them over a fire, stand barefoot in the snow for 30 minutes, and march back with wet socks), his reported history of post-march treatment for cold, burning, painful feet (given special socks, a "bunny boot" and boot inserts for both feet) and post-discharge complaints and treatment (four years later, began experiencing difficulty standing for prolonged periods of time due to pain and burning, changed to desk job, after which pain became intermittent, and was given a special shoe 14 years ago and then lidocaine injections, which did not permanently relieve the burning and pain in the balls of both of his feet).  See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of 
in-service injury and instead relied on the absence of evidence in his STRs to provide a negative opinion). 

As well, she performed an objective physical evaluation, which revealed hallux valgus, severe hammertoe deformities and a calcaneal spur formation.  She indicated the hallux valgus deformity had an uncertain etiology, but that 
up-to-date medical literature notes that abnormal foot mechanics, an abnormal great toe anatomy, joint hypermobility and genetic influences are likely causes.  She also indicated the hammertoe deformity was caused by destabilizing pressure from the laterally deviated great toe.  She did not etiologically link any of the disability presently affecting the Veteran's feet to cold-weather injury of the type he sustained during his military service.

The Veteran has not submitted a medical opinion refuting the VA examiner's.  His lay assertions (and those of his ex-wife) thus represent the only evidence of record doing so.  Although they are competent to state that he has experienced numbness and pain in his feet for a particular number of years as such symptoms are capable of their lay observation, they do not have the necessary medical training or expertise, so are not also competent, to ascribe these symptoms to a particular diagnosis and, in so doing, attribute them to a cold-weather injury like the type the Veteran sustained during his military service.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (layperson is competent to report lay observable symptoms, but lacking in medical training and expertise, is not competent to diagnose a medical condition or ascribe its associated symptoms).

In the absence of competent and credible evidence indicating the Veteran has present foot disability as a residual of cold-weather injury, the preponderance of the evidence is against this claim.  And this being the case, the benefit-of-the-doubt doctrine is inapplicable, and the claim resultantly must be denied.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  See also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

B.  Hypertension

The post-service private treatment records dated since 2007 affirm the Veteran has been receiving treatment for hypertension for years.  The question, though, is whether this disability is related to his military service, including whether it incepted during his service or alternatively manifested to the required compensable degree of at least 10-percent disabling within a year of his discharge from service.

He and his former spouse claim that a physician diagnosed hypertension during the Veteran's service.  There is no documentary evidence in the file confirming this, however, and the Court has held that the connection between what a physician said and the layman's account of what the physician purportedly said, filtered as it was through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute competent medical evidence in support of a claim of entitlement to service connection.  See Robinette  v. Brown, 8 Vet. App. 69, 77 (1995).  Moreover, while they are qualified to attest that, since service, he has experienced certain symptoms such as dizziness and headaches, which may be indicative of underlying hypertension, they are not competent to indicate this is necessarily so and, in fact, they have not made any such claim.  Jandreau v. Nicholson, 492 F.3d at 1377.


In any event, the private treatment records indicate otherwise.  From April 2008 to September 2009, during private outpatient visits, the Veteran consistently reported having been first diagnosed with hypertension several years earlier, but not earlier in the sense of so long ago as dating back to his military service, which, as mentioned, ended in October 1956.

In the absence of competent and credible evidence relating his hypertension to his military service, including by indicating it incepted during his service or establishing its initial manifestation within a year of his discharge from service, the preponderance of the evidence is against this claim.  This being the case, the benefit-of-the-doubt doctrine is inapplicable, and this claim resultantly must be denied.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  See also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).


ORDER

The claim of entitlement to service connection for residuals of cold-weather injury to the feet is denied.

The claim of entitlement to service connection for hypertension also is denied.


REMAND

Prior to adjudicating the remaining claim of entitlement to service connection for infection and removal of a cyst from the lower back, with residual scar tissue, additional development is needed.  See 38 C.F.R. § 19.9 (2012).

The Veteran contends that, during his military service while stationed in Seattle, Washington (July 1955 at Fort Lewis Army Base) and Anchorage, Alaska (May 1956 at Elmendorf Air Force Base), he received treatment for an infected cyst located at the end of his tailbone.  That treatment reportedly involved surgical removal of this cyst.  Allegedly, after the surgery and the removal of all stitches, the surgical site did not heal properly and a doctor told him that the area could not be restitched due to an insufficient amount of skin.  He asserts that he has since experienced residuals of that surgery, including infections at the site every three to four months when the stitched skin comes apart.  He further asserts that, while in Anchorage, Alaska, Drs. E. and T. prescribed antibiotic ointment for the infections. 

Not surprisingly, given the fire-related nature of this case and passage of time, VA and the Veteran were unsuccessful in obtaining records of this purported treatment, including by Drs. E. and T.  VA was also unsuccessful in obtaining documentation of the Veteran's service in Anchorage, Alaska.

As alternative evidence to try and compensate for this, he has submitted a copy of his daughter's birth certificate showing that she was born at Elmendorf Air Force Base in Anchorage, Alaska, in January 1956.  He also has submitted a letter from his former spouse confirming his service at Elmendorf Air Force Base in Anchorage, Alaska, indicating they lived there together between 1955 and 1957 and noting that, while there, the Veteran had surgery on his lower back.  According to the former spouse, after the surgery, the cut kept breaking open and becoming infected.

This evidence is sufficient to establish the in-service incurrence element of a claim for service connection.  According to the Veteran, since that surgery in service, he has continued to experience residual disability.  To date, VA has not afforded him an examination of his low back and the surgical site in response to this claim.  This examination and medical nexus opinion are needed so the examiner can determine objectively whether there is indeed current disability and, if there is, whether it is related or attributable to the cyst the Veteran had and received treatment for, including surgery, while in service.


This claim therefore is REMANDED for the following additional development and consideration.

1.  Provide the Veteran a VA compensation examination of his low back, including regarding the site where he allegedly had surgery during his military service for removal of an infected cyst.  Forward the claims file to the examiner for review of all pertinent documents and history of this claimed disability.  Inform the examiner that certain symptoms, including pain, are capable of lay observation and that any opinion provided on etiology should contemplate such symptoms.  After evaluating this area of the Veteran's body, and performing all necessary diagnostic testing, the examiner is then asked to proceed as follows: 

a) record the Veteran's medical history, including the nature and location of the cyst, the treatment rendered for it, and the symptoms he has experienced during the many years since (even if recounted by him, personally, given the absence of any documentary evidence like treatment records from during his service and even during the several ensuing years after his discharge); 

b) offer an opinion as to whether the Veteran currently has residuals of the reported cyst in service, including specifying what these residuals are;

c) provide detailed rationale, with specific references to the record, for the opinions expressed; and 

d) if an opinion cannot be expressed without resorting to mere speculation, discuss why such is the case and whether there is additional evidence that would aid in providing such opinion.

2.  Review the examination report to ensure it includes all requested information and, if not, return it to the examiner for correction.  38 C.F.R. § 4.2.

3.  Then readjudicate the claim concerning this cyst in light of this and all other additional evidence.  If this claim continues to be denied, send the Veteran an SSOC and give him time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim.  


The Board intimates no opinion as to the ultimate disposition of this claim warranted, but advises the Veteran that he has the right to submit additional evidence and argument concerning this claim.  Kutscherousky v. West, 12 Vet. App. 369, 372 (1999).  


This claim has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012) and, as such, must be afforded expeditious treatment, see 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012), and expedited handling.



______________________________________________
Keith W. Allen
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs