Citation Nr: 1304538	
Decision Date: 02/07/13    Archive Date: 02/19/13

DOCKET NO.  97-00 034	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to service connection for a bilateral leg disability (to include Buerger's disease), claimed as secondary to nicotine dependence.


REPRESENTATION

Veteran represented by:	Vietnam Veterans of America


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

Helena M. Walker, Counsel

INTRODUCTION

The Veteran served on active duty in the United States Army from May 1969 to January 1972.  Service in the Republic of Vietnam is indicated by the evidence of record.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 1996 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas which, in part, denied service connection for a bilateral leg disability.

In August 1998, the Veteran and his spouse testified at a personal hearing, conducted via videoconferencing equipment, which was chaired by a Veterans Law Judge (VLJ) who is no longer employed by the Board.  In a March 2010 letter, the Veteran was notified of this fact, and was given the option to have another hearing before a different VLJ.  The Veteran responded shortly thereafter indicating that he did not wish to appear at another hearing.  See the Veteran's March 31, 2010 letter, received by the Board on April 9, 2010.  

As noted in the September 2011 Board remand, the Veteran has revoked power of attorney from his private counsel, and has duly appointed the VVA as his representative for the matter at issue.

The Veteran's service-connection claim for a bilateral leg disability has been denied by the Board on four separate occasions.  See the Board's decisions in November 1998, April 2002, April 2006, and May 2010.  Each of these decisions has been vacated by the Court of Appeals for Veterans Claims (the Court) for various procedural or evidentiary deficiencies.  Most recently, in January 2011, the Court granted the parties' Joint Motion for Remand of the Board's May 2010 decision.  In substance, the Joint Motion stipulates that the Board failed to provide an adequate VA examination in relation to the Veteran's service-connection claim, and failed to provide an adequate statement of reasons and bases in denying the claim.  

In September 2011, the Board remanded the Veteran's claim, in light of the Joint Motion, for a new VA examination.  The requested action was taken and the case has been returned to the Board for adjudication.  Therefore, there is compliance with the Court's and the Board's remand instructions.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance).


FINDINGS OF FACT

1.  The preponderance of the evidence is against a finding that a bilateral leg disability is related to service or that Buerger's disease manifested within a year of service discharge.  

2.  There is no competent medical evidence that the Veteran acquired a nicotine dependence in service.  


CONCLUSION OF LAW

A bilateral leg disability was not incurred in or aggravated by service, and Buerger's disease may not be presumed to have been incurred therein.  38 U.S.C.A. §§ 1101, 1103, 1110, 1112, 1113, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.300, 3.303, 3.307, 3.309 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board has thoroughly reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran.  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 piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).

Veterans Claims Assistance Act of 2000 (VCAA)

With respect to the Veteran's claims, the 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) (2012).

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and 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).  In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim.  The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal.  See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008).  Thus, any error related to this element is harmless. 

VCAA letters dated in February 2004, November 2004, and February 2005 satisfied the duty to notify provisions.  See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187.  The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims.  The letters informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA.  See Pelegrini II, at 120-121.  In light of the Board's denial of the Veteran's claim, no disability rating or effective date will be assigned, so there can be no possibility of any prejudice to him under the holding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 

Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail.  See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served.").  In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair."  Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). 

In this case, the Veteran has been represented by either an experienced national service or private attorney throughout much of the appeal period and has submitted argument in support of his claims.  These arguments have referenced the applicable law and regulations necessary for a grant of service connection.  Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claims and is not prejudiced by a decision in this case.  As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided).

The Board also concludes VA's duty to assist has been satisfied.  The Veteran's service treatment records (STRs) and VA medical records are in the file.  Private medical records identified by the Veteran have been obtained, to the extent possible.  The Veteran has at no time otherwise referenced outstanding records that he wanted VA to obtain or that he felt was relevant to the claims. 

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4)(i) (2012).  

In this case, the Veteran was provided multiple VA examinations-most recently in September 2012.  The examiner considered the Veteran's in-service complaints, as well as the service treatment records, post-service treatment records, and conducting a physical examination.  Based on the foregoing, the examiner concluded that the Veteran's currently bilateral leg disability was not due to or aggravated by an event, disease, or injury incurred during active service, nor was he shown to have nicotine dependence during service.  Therefore, as the opinion was based on review of the claims file, including the Veteran's statements, and provided an extensive rationale for the opinion provided, the Board concludes that the opinion provided is adequate.  Given the foregoing, the Board finds the evidence of record to be thorough, complete, and sufficient upon which to base a decision with respect to the Veteran's claim for service connection.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate), see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  As such, the Board finds that the medical evidence of record is sufficient to adjudicate the Veteran's claim.

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, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

Pertinent Legal Criteria

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  Service connection may 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 C.F.R. § 3.303(d). 

If Buerger's disease becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  This presumption 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.  

VA General Counsel issued a precedential opinion in May 1997 in order to clarify when service connection may be granted if a disability is claimed secondary to nicotine dependence arising from a veteran's tobacco use during service.  The VA General Counsel found that a determination as to whether secondary service connection should be established depends upon affirmative answers to the following three questions: (1) whether nicotine dependence may be considered a disease for purposes of the laws governing veterans' benefits; (2) whether the veteran acquired a dependence on nicotine in service; and (3) whether that dependence may be considered the proximate cause of disability or death resulting from the use of tobacco products by the veteran.  VAOPGCPREC 19-97, 62 Fed. Reg. 37,954 (1997).

The Board notes that on July 22, 1998, the Internal Revenue Service Restructuring and Reform Act was enacted.  That law added 38 U.S.C. § 1103, which prohibits service connection for disability or death on the basis that it resulted from disease or injury attributable to the use of tobacco products during a veteran's active service. However, by its terms, 38 U.S.C. § 1103 is applicable only to claims filed after June 9, 1998.  See also 38 C.F.R. § 3.300.  Crucially, since the Veteran filed his claim in 1995, his claim is not barred by 38 U.S.C. § 1103.  Accordingly, nicotine dependence may be considered a disease for purposes of the laws governing veterans' benefits in this case.  Thus, in order to establish service connection for a bilateral leg disability secondary to nicotine dependence, evidence must be of record demonstrating that the Veteran acquired a dependence on nicotine in service, and that dependence may be considered the proximate cause of disability resulting from the use of tobacco products by the Veteran.

The determination as to whether the Veteran was dependent on nicotine in service is a medical issue.  See VAOPGCPREC 19-97, page 3.  The Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) outlines the criteria for diagnosing substance dependence.  Under these criteria, nicotine dependence may be described as a maladaptive pattern of nicotine use leading to clinically significant impairment or distress, as manifested by three or more of the following criteria occurring at any time in the same 12-month period:

(1) tolerance, as manifested by the absence of nausea, dizziness, and other characteristic symptoms despite use of substantial amounts of nicotine or a diminished effect observed with continued use of the same amount of nicotine-containing products;

(2) withdrawal, marked by appearance of four or more of the following signs within twenty-four hours of abrupt cessation of daily nicotine use or reduction in the amount of nicotine used: (a) dysphoric or depressed mood; (b) insomnia; (c) irritability, frustration, or anger; (d) anxiety; (e) difficulty concentrating; (f) restlessness; (g) decreased heart rate; or (h) increased appetite or weight gain; or by use of nicotine or a closely related substance to relieve or avoid withdrawal symptoms;

(3) use of tobacco in larger amounts or over a longer period that was intended;

(4) persistent desire or unsuccessful efforts to cut down or control nicotine use;

(5) devotion of a great deal of time in activities necessary to obtain nicotine (e.g., driving long distances) or use nicotine (e.g., chain-smoking); 

(6) relinquishment or reduction of important social, occupational, or recreational activities because of nicotine use (e.g., giving up an activity which occurs in smoking-restricted areas); and 

(7) continued use of nicotine despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by nicotine.

See VAOPGCPREC 19-97, pages 3 and 4 [outlining the DSM-IV criteria].  

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  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, 1 Vet. App. at 54. 

Factual Background and Analysis

The Veteran seeks entitlement to service connection for a bilateral leg disability.  He essentially contends that he incurred a bilateral leg disability in service during basic training.  He further contends that he sought treatment for the leg disability during service but was told to return to his unit.  He indicates that the bilateral leg disability continued to bother him since service discharge, and maintains that he was treated soon after service by Dr. L., his family doctor, but that Dr. L. has died and his records are no longer available.  In the alternative, the Veteran asserts that his bilateral leg disability is secondary to nicotine dependence.

The Veteran's service treatment records are pertinently negative for any record of diagnosis or treatment of Buerger's disease or any other disease affecting the Veteran's legs while in service.  The only notation of a problem with the Veteran's lower extremities in service is a reference to cramping in the right knee in May 1970.  However, physical examination of the knee in May 1970 did not show any abnormality, and no lower extremity was diagnosed in May 1970 or later in service, including on discharge examination in December 1971.

Following service, the evidence of record shows that the Veteran's first leg complaints occurred in 1993, at which time he was diagnosed as having peripheral neuropathy of the left leg.  The Veteran testified, however, that he sought private treatment soon after discharge from service from his family doctor, and these visits included describing complaints of leg problems.  

The Veteran was first diagnosed as having a bilateral leg disability during an October 1995 VA general medical examination, which included a diagnosis of Buerger's disease.  Thus, there is no question that the Veteran has a currently bilateral leg disability, and the main issue before the Board is whether any currently diagnosed bilateral leg disability was caused or worsened by his active service, presumptively related to service, or is secondary to nicotine dependence.  

Following review of the claims file and physical examination of the Veteran, the October 1995 VA examiner indicated that the Veteran had bilateral leg pains (etiology undetermined) and restless leg syndrome.  There was some question as to whether the Veteran's had Buerger's disease versus arteriosclerosis obliterans with impaired circulation.  The examiner stated that the Veteran has been advised to quit smoking due to his complaints.  

During the Veteran's August 1998 hearing, the Veteran testified that he had bilateral leg pain during service, and that he went to sick call related to his leg complaints.  He recalled being cursed out and sent back to his unit after being told that his legs hurt because he was not used to running.  

In December 2004, The Veteran submitted a tobacco product use questionnaire.  He indicated that he did not smoke before he entered military service, and he was first introduced to smoking in boot camp (May 1969).  He began smoking two to three cigarettes per day and increased to two packs per day.  He endorsed using cigarettes following service and smoked two to two and a half packs a day.  Under the question as to whether the Veteran tried to discontinue tobacco products, he indicated that he attempted quitting 15 years ago, and it only lasted one day.  

In May 2005, the Veteran was afforded a VA examination to determine whether his Buerger's disease was caused by his tobacco abuse.  Following review of the claims files and physical examination of the Veteran, the examiner opined that it was at least as likely as not that the Veteran's Buerger's disease is related to tobacco use in service.  The examiner further opined (and contradicted himself) that it is unlikely that the Veteran would have developed Buerger's disease in his two years on active duty, and it is most likely a result of continued smoking for some 33 years.  

In August 2009, the Veteran's claims files were sent to a VA examiner for an opinion as to the etiology of the Veteran's Buerger's disease and whether he had nicotine dependence during active duty.  The VA examiner noted that upon review of the claims folder that there was no indication of any complaints in the service treatment records suggestive of Buerger's disease.  He pointed out that at service discharge, the Veteran indicated he was in good health and no abnormalities were noted on physical examination.  Finding that the earliest notation as to symptoms related to a disability was in 1993, the examiner noted that on VA examination in January 1995, the Veteran reported that that his left leg had not had circulation for two years.  The examiner opined that the Veteran did not meet the criteria for a diagnosis of nicotine dependence, but only discussed two of the seven DSM-IV criterion.  

Following the Board's most recent remand, the Veteran was afforded a VA examination in October 2011, at which time he was diagnosed as having thrombosis obliterans (Buerger's disease) and peripheral vascular disease (PVD).  The Veteran reported that he was seen 35 years ago by a private physician for complaints of pain in the feet at night and with walking, and muscle twitching with leg movement at night.  The examiner opined that the Veteran did not meet the criteria for nicotine dependence.  The Veteran described that he first began smoking in basic training (1969), and that his cigarettes were provided to him by the military.  The examiner opined that the Veteran did not meet the DSM-IV criteria for a diagnosis of nicotine dependence because he denied any withdrawal symptoms within 24 hours of abrupt cessation of nicotine.  Further, the Veteran denied experiencing decreased heart rate, anxiety, insomnia, and restlessness following a four-hour period without cigarettes.  The examiner also noted that the Veteran reported attempting to stop smoking "a while back," but he denied that his nicotine use interfered with his social, occupational, and recreational activities.  As to the Veteran's reports of increased nervousness, irritability, and being withdrawn from his family, the examiner found these to be related to his depression and anxiety.  

In September 2012, the Veteran was afforded another VA examination for a clarified opinion regarding his claimed in-service nicotine dependence.  Following review of the claims file, previous examinations, and interview of the Veteran, the examiner opined that his bilateral leg disability was not caused by the claimed in-service injury, event, or illness.  In so opining, the examiner found that the Veteran did not meet the criteria for a diagnosis of nicotine dependence during military service as he did not meet at least three of the seven criteria (as listed above) for a diagnosis of nicotine dependence during his period of active service.  

The examiner opined that the Veteran met the criteria of tolerance as his smoking increased from when he began basic training to when he left service.  He went from smoking a few cigarettes per day and increased to two packs per day by the end of service "in order to achieve the desired effect of nicotine use." 

The examiner found that the Veteran did not meet the criteria of development of withdrawal.  He noted that the Veteran did not report he attempted to quit or reduce use during his three years of military service.  As such, the examiner indicated that it is unknown as to whether withdrawal symptoms would have developed had the Veteran attempted to quit during service.  He went on to state that he could not assume that he would have developed withdrawal because there are many individuals who use large of amounts of substances and have no withdrawal symptoms when they stop.  

The examiner opined that the Veteran did not meet the criteria of using nicotine in larger amounts or over a longer period of time than he intended.  In reaching this conclusion, the examiner noted that the Veteran stated that he never gave any thought to how much he was smoking, nor was he worried that his consumption increased from his time in basic training.  The examiner indicated that without the Veteran having any intention to keep use to a minimum during service, this criteria was not met.  

The examiner also opined that the Veteran did not indicate a persistent desire or have unsuccessful efforts to cut down or control his nicotine usage during service.  Again, the examiner looked to the Veteran's reports that he never made any attempts to cut down or control his smoking during service.

Additionally, the examiner found that the Veteran did not spend a great deal of his time participating in activities to obtain, use, or recover from use of nicotine during service.  The examiner noted that the Veteran was very clear that cigarettes were cheap, readily available, easy to obtain, and in his opinion, encouraged during service.  

The examiner opined that during service, the Veteran did not give up or reduce participation in important social, occupational, or recreational activities because of his nicotine use.  In so opining, the examiner noted the Veteran's comments that smoking was never something that hindered him.  The Veteran described smoking right along with whatever activity he was doing as it was socially acceptable and widespread in offices, homes, clubs, restaurants.  He denied having to give up any of the activities or be socially disapproved because of his smoking.  

Finally, the examiner indicated that the Veteran did not meet the criteria that he continued use despite having knowledge of having persistent or recurrent physical or psychological problems exacerbated by the nicotine.  The Veteran denied worrying about his smoking during service, and had no unpleasant side effects from using nicotine in service other than some shortness of breath if ascending stairs.  He even stated that he did not associate his shortness of breath with his smoking.  

In conclusion, the examiner found that the Veteran did not meet at least three of the seven criteria for a diagnosis of nicotine dependence during military service.  

In a January 2013 Informal Hearing Presentation (IHP), the Veteran's representative argued that the September 2012 VA examination was inadequate and the Veteran should be afforded another VA examination.  He specifically indicated that the examiner's findings related to the criteria regarding withdrawal and persistent desire/unsuccessful efforts to cut down or control use were based upon pure speculation.  The representative cited to an NIH article indicating that there is usually nicotine withdrawal following quitting smoking.  Regarding the other criteria the representative argued that the Veteran may have had a problem quitting smoking during service because he reported having problems quitting "a while back."  The representative argued that the evidence supports his contention that if the Veteran had attempted to cut down or control his nicotine use in service, he would have been unsuccessful.  

The Board appreciates the arguments from the Veteran's representative in the January 2013 IHP, but finds them unpersuasive.  The September 2012 VA examiner based his opinions following review of the evidence of record and in light of the Veteran's own reports related to his smoking history.  The examiner found that the Veteran denied any withdrawal during service and never reported trying to quit during service.  The examiner's findings were not speculative, but based upon the reported history provided by the Veteran's and evidence of record.  As such, the Board finds no deficiencies in the September 2012 VA examination and report.  Barr, supra; Stefl, supra.

Upon careful review of the evidence of record, the Board finds that the Veteran is not entitled to service connection for his bilateral leg disability on a presumptive or direct basis, nor it is shown to have been caused by nicotine dependence during service.  It is clear from the record that the Veteran has PVD and Buerger's disease in the bilateral lower extremities.  As noted above, the Veteran contends that his bilateral leg disability is directly due to service or due to nicotine dependence that developed during service.  Based on the evidence of record, the Board concludes it was not.  

The Veteran's first documented complaints of bilateral leg problems were over twenty years after discharge.  While the Veteran has contended that he saw his family physician soon after service discharge, there is no medical evidence to support this contention.  Such a long interval of time between service separation and the earliest documentation of the disease is, of itself, a factor weighing against a finding of service connection.  See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000).

It is noted that VA must consider all favorable lay evidence of record.  38 USCA § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995).  Accordingly, in addition to the medical evidence above the Board has considered the lay evidence offered by the Veteran in the form of his testimony, his correspondence to VA and his statements to various medical providers and examiners.

The Board notes that a layperson is competent to testify in regard to the onset and continuity of symptomatology.  Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991).  However, once evidence is determined to be competent, the Board must determine whether such evidence is also credible.  See Layno v. Brown, 6 Vet. App. 465 (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").

The Board is not required to accept a veteran's uncorroborated account of his active service experiences.  Wood v. Derwinski, 1 Vet. App. 190, 192 (1991).  However, if the Board finds the Veteran's account to be not credible, the Board must articulate its reasons.

In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness.  Caluza, 7 Vet. App. 498.  The Board may not ignore a veteran's testimony simply because he or she is an interested party and stands to gain monetary benefits; personal interest may, however, affect the credibility of the evidence.  Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991).

The Veteran is not shown by the evidence of record to have any bilateral leg disabilities related to his period of active duty, nor was Buerger's disease shown within his first post-service year.  There is no clinical evidence of record showing a link (or possible link) between the claimed disabilities and his military service.  Further, the Veteran has not been shown by the clinical evidence of record to have experienced nicotine dependence during service to warrant service connection for the Buerger's disease that has been found to be related to nicotine dependence.  

The Board appreciates the Veteran's assertions that he has bilateral leg disability attributable to his period of active duty, but must acknowledge the holding Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007), in which it was held that a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg.  Here, however, the question of causation extends beyond an immediately observable cause-and-effect relationship.  As such, the Veteran is competent to address the initial injury and pain associated with it, but he is not competent to address etiology of his bilateral leg disability in the present case.

With respect to the Veteran's statements to the effect that he has had chronic bilateral leg pain since service (continuity of symptomatology) and that he was treated soon after discharge from service, the Board finds that the Veteran is not credible.  In this regard, the Board notes that the statements are not supported and/or contradicted by the evidence of record.  The clinical evidence does not show that the Veteran was treated for any bilateral leg problems during service and there was no notation of any chronic disability of either leg during service or upon discharge.  Additionally, the Veteran was not found to have any musculoskeletal or neurological disabilities at discharge.  His testimony indicating that he was treated for bilateral leg problems just after service is not corroborated by the evidence of record, and this is buttressed by the fact that the Veteran was not shown to have any bilateral leg problems until the early-1990s.  Moreover, he underwent VA treatment in the 1990s to the present, and it would be reasonable for the Veteran to have reported that he was treated for bilateral leg problems just after service if he was so diagnosed.  Ultimately, his statements regarding continuity of symptomatology are inconsistent with the clinical evidence of record showing no bilateral leg disabilities at service separation or complaints for over 20 years following discharge from service. 

The Board also finds that the recent, October 2011 and September 2012 opinions are afforded considerable weight in the determination that the Veteran's current bilateral leg disability is not related to his military service, nor was he shown to meet the criteria for nicotine dependence during service.  The opinions were based on a full review of the Veteran's claims file and a detailed history provided by the Veteran.  In the examination reports, the physicians summarized the Veteran's relevant in-service and post-service medical history, in finding that he did not meet the DSM-IV criteria for a diagnosis of nicotine dependence during service.  When viewed in context, the Board finds that the physician's opinions are accompanied by a sufficient explanation.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Wray v. Brown, 7 Vet. App. 488, 493 (1995) (holding that the adoption of an expert medical opinion may satisfy the Board's statutory requirement of an adequate statement of reasons and bases if the expert fairly considered the material evidence seemingly supporting a veteran's position); Lee v. Brown, 10 Vet. App. 336, 338 (1997) (an etiological opinion should be viewed in its full context, and not characterized solely by the medical professional's choice of words).  The Board finds these opinions to be highly credible and probative of the issue of nexus, or the lack thereof. 

The Board has considered the other medical evidence of record, but it finds it less probative as to the issue of the etiology of the current bilateral leg disability.  The relevant treatment notes do not include an actual opinion finding that the Veteran had clinically diagnosed nicotine dependence during service, nor is his bilateral leg disability otherwise related to an event, injury to disease during service.  During post-service treatment, the Veteran did not relate his current bilateral leg problems to his military, nor did he report to treating personnel that he has had bilateral leg pain since service-as he now relates to the Board.  Further, the Veteran told the medical professionals have found that the Veteran's Buerger's disease is related to his significant smoking history-a history that does not include a diagnosis of nicotine dependence during his period of service.  This also diminishes the Veteran's credibility in his statements of the onset and continuity of symptomatology regarding his bilateral leg disability beginning in service. 

Accordingly, based on the evidence and analysis above, the Board finds the criteria for service connection for a bilateral leg disability are not met on a direct, or presumptive basis; the claim must therefore be denied. 

In addition, the Board has considered whether the Veteran had nicotine dependence during his period of service, but finds no competent medical evidence that he acquired nicotine dependence during his period of service.  The Veteran's service treatment records are devoid of any mention of any nicotine dependence.  

Pursuant to the September 2011 remand, the Board requested that an additional opinion be sought to determine whether the Veteran had nicotine dependence during service.  The September 2012 VA examiner listed all seven criteria under the DSM-IV for a diagnosis of nicotine dependence.  Following examination/interview of the Veteran and review of the claims file, the examiner found that the Veteran only met one of the seven criteria, and thus, opined that the Veteran did not have nicotine dependence during his active duty service.  

The Board finds the opinion of the September 2012 VA examiner to be competent, credible, and highly probative as to whether the Veteran had nicotine dependence during service.  Again, the Board appreciates the assertions made by the Veteran and his representative that had the Veteran tried quitting smoking during service he would have been unsuccessful and experienced withdrawal, but the evidence of record, including the Veteran's own statements, show otherwise.  Simply put, the Veteran and his representative are not competent to diagnose the Veteran as having nicotine dependence during service, and the Veteran's own statements show that he was not experiencing nicotine dependence during service as contemplated by the DSM-IV.  

Absent a competent clinical opinion of record diagnosing nicotine dependence during the Veteran's active duty service, the Board finds that service connection secondary to such disability is not warranted.  

Because the evidence preponderates against the claim, the benefit-of-the-doubt rule does not apply.  Gilbert, 1 Vet. App. 49, 54.


ORDER

Service connection for a bilateral leg disability, to include Buerger's disease, is denied.  



____________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs