Citation Nr: 1306143 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 09-28 055A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to service connection for a foot disability. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for a back disability, to include arthritis. 4. Entitlement to service connection for a deviated tracheobronchial tree. 5. Entitlement to service connection for a chronic disability manifested by body pains. ATTORNEY FOR THE BOARD M. Katz, Counsel INTRODUCTION The Veteran had service in the Recognized Guerrillas and Regular Philippine Army from October 1942 to May 1946. These matters are before the Board of Veterans' Appeals (Board) on appeal from November 2008 and June 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. 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). FINDINGS OF FACT 1. There has been no demonstration by competent and credible evidence that a chronic foot disability was demonstrated at any time during the appeal period. 2. There has been no demonstration by competent and credible evidence that bilateral hearing loss disability was demonstrated at any time during the appeal period. 3. There has been no demonstration by competent and credible evidence that any back disability, to include arthritis, demonstrated during the appeal period is etiologically related to service, nor that osteoarthritis of the back was demonstrated to a compensable degree within one year after service. 4. There has been no demonstration by competent and credible evidence that any deviated tracheobronchial tree demonstrated during the appeal period is etiologically related to service. 5. There has been no demonstration by competent and credible evidence that any chronic disability manifested by body pains demonstrated during the appeal period is etiologically related to service. CONCLUSIONS OF LAW 1. A foot disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1131, 1137 (West 2002); 38 C.F.R. § 3.303 (2012). 2. Bilateral hearing loss disability was not incurred in or aggravated by active service, and sensorineural hearing loss may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 3. A back disability was not incurred in or aggravated by active service, and osteoarthritis of the back may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 4. A deviated tracheobronchial tree was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1131, 1137; 38 C.F.R. §§ 3.303 (2012). 5. A chronic disability manifested by body pains was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1131, 1137; 38 C.F.R. §§ 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In March 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, 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. Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and/or an effective date will be assigned if service connection is awarded. In VA correspondence, dated in August 2008 and May 2011, prior to initial adjudication of the claims, respectively, VA informed the appellant of what evidence was required to substantiate the claims, of his and VA's respective duties for obtaining evidence, and of the criteria for assignment of an effective date and disability rating in the event of award of service connection. In Pelegrini v. Principi, supra, the Court held that compliance with 38 U.S.C.A. § 5103 required that VCAA notice be provided prior to an initial unfavorable agency of original jurisdiction decision. Because complete VCAA notice in this case was provided prior to the initial AOJ adjudications denying the claims, respectively, the timing of the notices does comply with the express requirements of the law as found by the Court in Pelegrini. All the VCAA requires is that the duty to notify is satisfied, and that claimants be given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996). Duty to Assist With regard to the duty to assist, the claims file contains the Veteran's available service treatment records (STRs) which consist of affidavits dated in June 1945 and May 1946. Additionally, the claims file contains statements of the Veteran in support of his claims. The Board has carefully reviewed the statements and concludes that there has been no identification of further available evidence not already of record for which VA has a duty to obtain. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim for which VA has a duty to obtain. In this regard, the Board notes that although the Veteran reported in January 1990 that he had been hospitalized at a military hospital at Sta Fe, Bukidnon from January 1942 to February 1942, following a fall in a deep ravine, such records would refer to treatment for injury sustained prior to his period of service for which compensation benefits may be awarded. The Board has considered whether the Veteran should be scheduled for a VA examination with a medical opinion regarding a possible relationship between any disability at issue and his military service. 38 C.F.R. § 3.159(c)(4) ; McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds, however, that such an examination is not necessary to decide any issue on appeal. The Secretary's obligation under 38 U.S.C. § 5103A(d) to provide the Veteran with a medical examination or to obtain a medical opinion occurs when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App.79, 81 (2006). As is discussed in greater detail below, the STRs are negative for any complaint or finding of any disability at issue in service, and the Board finds that the Veteran is less than credible with regard to such an incident or continuity of symptomatology since service. As the record does not establish the occurrence of an event in service, to which current disability may be related, a VA examination is not warranted. Legal criteria Service Connection Service connection is warranted if it is shown that a Veteran has a disability resulting from an injury incurred or a disease contracted in active service or for aggravation of a pre-existing injury or disease in active military service. 38 U.S.C.A. §§ 1110, 1131(West 2002); 38 C.F.R. § 3.303 (2012). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). For certain disabilities, such as sensorineural hearing loss and osteoarthritis, where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the disability becomes manifest to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by 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, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309 (2012). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Also, the Veteran as a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007)). Competency is a question of fact, which is to be addressed by the Board. Jandreau at 1377. In Robinson v. Shinseki, 312 Fed. Appx. 336 (2009), the Court held that, in some cases, lay evidence will be competent and credible evidence of etiology. Whether lay evidence is competent in a particular case is a question of fact to be decided by the Board in the first instance. The Court set forth a two-step analysis to evaluate the competency of lay evidence. First, the Board must determine whether the disability is the type of injury for which lay evidence is competent evidence. If so, the Board must weigh that evidence against the other evidence of record-including, if the Board so chooses, the fact that the Veteran has not provided any in-service record documenting his claimed injury, to determine whether to grant service connection. The Board observes that this Federal Circuit decision is nonprecedential. However, see Bethea v. Derwinski, 2 Vet. App 252, 254 (1992) [a non-precedential Court decision may be cited "for any persuasiveness or reasoning it contains"]. The Board believes that if Bethea applies to the utility of Court decisions, it surely applies to the utility of decisions of a superior tribunal, the Federal Circuit. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. Analysis The Board has reviewed all of the evidence in the claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. The first element of a claim for service connection is that there must be evidence of a current disability. Private medical records reflect that the Veteran has been diagnosed with compression fracture of the 9th, 10th, and 11th thoracic vertebrae, spondylosis, and deviation of the tracheobronchial tree to the right, in 2008, and with rheumatoid arthritis in 2009. Therefore, the Board will consider that the first element for service connection for a back disability, deviated tracheobronchial tree, and chronic disorder manifested by body pains, as having been met. The second element of a claim for service connection is medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of an injury or disease. The Board finds that there is no competent credible evidence of a back injury, deviated tracheobronchial tree, or rheumatoid arthritis in service. In addition, the Board finds that, for the below stated reasons, the Veteran is less than credible with regard to a back injury, deviated tracheobronchial tree, or rheumatoid arthritis, in service. The Veteran completed affidavits in June 1945 and May 1946 which are negative for any complaints of, or identification of any treatment for, a back injury, deviated tracheobronchial tree, or rheumatoid arthritis in service. Indeed, the area of the affidavit designated for listing of "Chronological Record of Wounds and Illnesses Incurred" was left blank in the June 1945 affidavit, and noted as "None" in the May 1946 affidavit. Indeed, the initial demonstration of a back disability, and deviated tracheobronchial tree, was in 2008, and rheumatoid arthritis in 2009, decades after the Veteran's discharge from service. There is no objective clinical evidence of record that links any such disability to service. The Board acknowledges the Veteran's statements attributing the disabilities to service, as well as to continuity of symptomatology since service. However, the Board finds that the demonstrated back disabilities, deviated tracheobronchial tree, and rheumatoid arthritis are not of such medical complexity as to lend themselves to lay diagnosis. The Veteran in this case has not been shown to have the requisite medical training to render such diagnoses or opinion as to etiology. The Board also does not find that the Veteran is credible as to his assertions as to continuity of symptomatology. The Board may not reject the credibility of the Veteran's current lay statement as to continuity of symptomatology simply because they are not corroborated by contemporaneous medical records. However, such absence is for consideration in adjudicating the appeal. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (noting that the absence of contemporaneous medical documentation may go to the credibility and weight of Veteran's lay testimony, but the lack of such evidence does not, in and of itself, render the lay testimony incredible). See also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case there is not simply just an absence of corroborating contemporaneous medical records. Rather, the contemporaneous medical records contradict his current statements as to continuity of symptomatology as, in May 1946, he specifically denied any injury or illness as incurred in service. With regard to a foot disability, and bilateral hearing loss disability, the Board finds that there has been no demonstration of a chronic foot disability or bilateral hearing loss disability at any time during the period on appeal. See 38 C.F.R. § 3.385 (2012). No such disability was reported in affidavits signed by the Veteran in June 1945 and May 1946, nor in the private medical evidence of record dated since service. The Court has held that Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In view of the foregoing, the Board finds that the preponderance of the evidence is against service connection for the disabilities at issue. Therefore, the benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a foot disability is denied. Entitlement to service connection for bilateral hearing loss disability is denied. Entitlement to service connection for a back disability is denied. Entitlement to service connection for a deviated tracheobronchial tree is denied. Entitlement to service connection for a chronic disability manifested by body pains is denied. _________________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs