Citation Nr: 1306936 Decision Date: 02/28/13 Archive Date: 03/01/13 DOCKET NO. 09-03 643A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a bilateral foot disability, claimed as athlete's foot with itching. 2. Entitlement to service connection for a bilateral eye disability. 3. Entitlement to service connection for a circulatory disability of the lower extremities. 4. Whether new and material evidence has been received to reopen a previously denied claim of service connection for a hernia, and if so, whether the claim may be granted. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W.H. Donnelly, Counsel INTRODUCTION 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). The Veteran served on active duty with the United States Army from January 1955 to January 1957. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision by a United States Department of Veterans Affairs (VA) Regional Office (RO), which in pertinent part denied service connection for foot, eye, and circulatory disabilities, and declined to reopen a previously denied claim of service connection for a hernia. The Veteran testified at a January 2013 hearing held before the undersigned Veterans Law Judge via videoconference from the RO; a transcript of the hearing is of record. Based on the Veteran's testimony and submissions, the issues with regard to a bilateral foot disability and a circulatory disability have been recharacterized to better reflect his allegations and the evidence of record. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to insure review of the totality of the evidence. The issue of reopening the claim of service connection for a hernia is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. There is no current bilateral foot disability manifested as itching or other skin or fungal infection. 2. No eye condition, visual impairment, or injury was noted upon separation from service in 1957; there is no competent and credible evidence of an eye disability for decades following service. 3. There is no current circulatory disability of the lower extremities. CONCLUSION OF LAW 1. The criteria for service connection of a bilateral foot disability are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. The criteria for service connection of a bilateral eye disability are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 3. The criteria for service connection of a circulatory disability of the lower extremities are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2011). A November 2007 letter, issued prior to adjudication, satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's VA medical treatment records have been obtained. Although the Veteran indicated he had received private treatment beginning in 1957, he reported that such records were not available. Indeed, in connection with adjudication of an earlier claim in 1995, the doctor had certified that he did not have records for the Veteran. VA has attempted to obtain service treatment records, but the National Personnel Records Center (NPRC) has certified that they are fire-related, meaning they were in that area of the storage facility destroyed in a 1973 fire. A separation examination dated in January 1957 is of record. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). No VA examinations have been afforded the Veteran. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). The threshold for determining a possibility of a nexus to service is a low one. McLendon v. Nicholson, 20 Vet. App. 79 (2006). With regard to the feet and circulatory problems alleged, the extensive VA treatment records contain sufficient information to establish that there is no current disability. With regard to the eyes, the evidence of record fails to indicate any reasonable possibility of an association between current disability and service. As is discussed in greater detail below, the Veteran's bare allegations are contradicted by the documentary evidence and known circumstances. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Service Connection Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 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). Competent lay evidence is 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). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Foot Disability In August 2007 correspondence, the Veteran initiated a claim of service connection for left and right foot problems. He was asked to clarify his claim, and in November 2007 he stated that the specific disability he was claiming related to sweating, athletic foot, and itching. He reiterated this at the January 2013 Board hearing, when he denied any injury of the feet but stated that he had gotten athlete's foot in service. He stated that he had not seen a doctor in service, as going on sick call for minor things was discouraged, but the condition seemed to get worse over time. He reported that he had seen a doctor soon after separation, who told him to treat his feet "nice" by changing socks daily and using powder. The Veterans examination for separation from service, dated in January 1957, shows no notation of any foot condition, infection, or disability. The veteran made no mention of any foot condition or symptomatology in connection with a 1995 claim for VA benefits, and VA treatment records reveal no complaints of or clinical findings related to any bilateral foot condition. No skin disability, fungal infection, or similar condition is noted in problem lists, and there is no indication of any medication being used or prescribed for such. The Veteran in fact did not state at the hearing that he was having current problems of the feet related to infection. He instead referred to a fear of problems associated with nonservice connected diabetes; he had been warned of the danger that disease posed to his extremities. No doctor treating diabetes, including those conducting foot examinations, noted any current foot diagnosis. They merely cautioned the Veteran to watch for open wounds and sores on the feet, as he experienced some numbness and tingling related to diabetes. In short, there is no lay or medical evidence of any current disability of the left or right foot as claimed by the Veteran. No fungal infection, athlete's foot, itching, or similar condition is noted. The sole foot manifestations referred to by doctors are related to nonservice-connected disease processes. In the absence of a current disability, service connection cannot be awarded. The preponderance of the evidence is against the claim; there is no doubt to be resolved. Circulatory Disability Similarly, service connection for a circulatory disability of the lower extremities must be denied. At the January 2013 hearing, the Veteran stated that he had experienced poor circulation in his legs and feet since service. He stated that although he had problems in service, he had not sought treatment until he separated. His private doctor gave him a diagnosis, but he could not recall it. The Veteran reported receiving current treatment at the VA for his problems; doctors cautioned him to wear shoes and not walk barefoot. They had tested the sensation on the soles of his feet. Again, the separation examination notes no circulatory problems or complaints, and there is no reference to such problems until the Veteran's August 2007 claim. Moreover, the extensive VA treatment records do not show any diagnosis of or treatment for circulation problems. Pulses are repeatedly noted to be normal. There was no notation of discoloration or low temperature in the feet or legs. The Veteran was on a blood thinner for a diagnosed heart condition for a time, but this was unrelated to any physical circulation problems of the lower extremities. He also complained regularly of edema of the lower extremities; this was also related to the heart (and changes in associated medications) by doctors. On a June 2009 report of VA examination for housebound status or a need for aid and attendance, the doctor was instructed to list all conditions of the lower extremities, particularly those affecting ambulation, and there was no reference to any circulatory problems or symptoms associated with such. The preponderance of the evidence is against the claim; there is no doubt to be resolved. There is no current circulatory disability of the leg. Service connection is not warranted. Eyes With regard to the eyes, current VA treatment records document several eye problems. The Veteran complained of decreased vision; he wore glasses, but encountered increasing difficulty reading. He had periods of tearing and dryness bilaterally. The Veteran was also diagnosed with diabetes in approximately 2000, and so was monitored regularly for retinopathy; none has been diagnosed. Pseudophakia and dry eye syndrome were diagnosed, as were vortex keratopathy and presbyopia. The Veteran was prescribed, and uses, eye drops daily for lubrication. At the January 2013 hearing, the Veteran reported that he now wore glasses and was treated at VA, including having undergone surgery at some point. He believed this was for cataracts. However, despite the evidence of a current disability, service connection cannot be granted. The evidence of record is against a finding of any disease or injury in service, and hence there can be no nexus to service. The Veteran has alleged that he sustained an eye injury in service when he got particles in his eye. He did not seek treatment, however, because he was afraid of being punished if he went on sick call. He reported that in service he had blurry vision and things "just popped up." He did not wear glasses, though he thought about getting some. The other evidence of record does not support his allegations. The January 1957 examination on separation from service noted his vision to be 20/20 bilaterally, with no report of glasses or any vision problems of any sort. There is no report or complaint of vision problems documented until decades following service. Importantly, when the Veteran filed a claim for benefits in 1995, he did not mention any eye problems or an in-service injury. Given his current allegations, particularly that he has had progressive problems since 1957, his long silence is puzzling. Further, at his hearing, the Veteran stated that he had been unaware of the availability of VA treatment for this problem, so he saw private providers. However, he clearly learned of VA services by 1995, yet remained silent. When asked at the hearing why he had not filed claims for current disabilities in 1995, in light of his testimony that they had been extant for four decades at that point, he stated, "I don't know. I can't even answer that question because I might have had the problem but, you know, it's...." Accordingly, although the Veteran is competent to report symptoms he experiences and the facts of treatment and diagnosis, the Board finds his reports lack credibility. They are contradicted by, or are at least highly inconsistent with, documentary evidence of record and historical circumstance. Therefore, there is no evidence of record linking current diagnoses of pseudophakia and dry eye syndrome, as there is no competent and credible evidence of in-service injury or initial manifestation, or of any difficulties until decades after separation. Vortex keratopathy and presbyopia were also diagnosed, but are related to causes other than service. Vortex keratopathy is noted by the VA optometry resident to be caused by the Veteran's use of the medication amiodarone, while presbyopia is, by definition, age-related vision degeneration. The preponderance of the evidence is against the claim; there is no doubt to be resolved. Service connection for a bilateral eye disability is not warranted. ORDER Service connection for a bilateral foot disability is denied. Service connection for a circulatory disability of the lower extremities is denied. Service connection for a bilateral eye disability is denied. REMAND Service connection for a hernia was denied in an August 1995 rating decision by the RO on the grounds that no nexus to service was shown. The Veteran perfected an appeal of this denial, and in February 1998, the Board confirmed the denial of entitlement to service connection for a hernia. However, the Board based its denial on a finding that no hernia had ever been diagnosed; there was no current disability. The Veteran did not appeal the Board's decision. Board decisions are generally final as of the date of issuance and mailing. 38 U.S.C.A. § 7103; 38 C.F.R. § 20.1100. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C.A. § 5108. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). Rating actions from which an appeal is not timely perfected become final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. Accordingly, the Veteran's August 2007 claim is an attempt to reopen the previously denied claim. Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). Where a previously denied claim is being reopened, the notice must inform the Veteran of both the reopening criteria and the criteria for establishing the underlying claim for service connection. See Kent v. Nicholson, 20 Vet. App. 1 (2006). Here, the November 2007 assistance letter did inform the Veteran that new and material evidence was required to reopen the previously denied claim, and described the criteria for service connection. However, the letter incorrectly informed him that the last final denial of the claim was the RO's August 1995 decision. That decision was not final, as the Veteran appealed, and the Board issued a decision which subsumed the rating decision. The Veteran is prejudiced by this error, as the letter then described the basis of the denial in that decision, and not the basis relied upon by the Board in its February 1998 denial. The Veteran's presentations have focused on the element of nexus, and have paid little attention to the existence of a current disability. Discussions at the Board hearing pointed out the need for evidence of a current disability, but the prejudice is not mitigated, as the late date of the corrected information deprived the Veteran of a full and fair opportunity to participate in the adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Remand is therefore required for adequate notice and readjudication. Moreover, clarification of the claim is required. The Veteran has discussed, or the treatment records reflect, three different types of hernia. Initially, it appeared the claim involved an inguinal hernia, which involves protrusion of the abdominal contents through the inguinal canal. However, treatment records refer to an umbilical hernia, which involves protrusion around the belly button, and a hiatal hernia, in which the stomach protrudes into the chest. The Veteran referred to all three at his hearing. On remand, the Veteran must be asked to clearly identify the disability he is claiming. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is required.) 1. Contact the Veteran and provide him fully compliant notice as required under applicable laws, regulations, and legal precedents. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); and Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Kent v. Nicholson, 20 Vet. App. 1 (2006). Notice must inform him that the last final denial of service connection for a hernia was the February 1998 Board decision, and the reason for denial was an absence of a current disability. The Veteran must also be asked to specify the form of hernia he alleges is service-connected, be it inguinal, umbilical, or hiatal. 2. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claim on appeal, to include consideration of whether the claimed form of hernia is encompassed by prior denials. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs