Citation Nr: 1307760	
Decision Date: 03/08/13    Archive Date: 03/11/13

DOCKET NO. 10-06 113	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

1. Entitlement to service connection for hypertension. 

2. Entitlement to service connection for emphysema, to include as due to exposure to herbicides.

3. Entitlement to service connection for jungle rot, claimed as a bilateral foot deformity and a condition of the lower extremities. 

4. Entitlement to service connection for a disorder manifested by bilateral foot pain.

5. Entitlement to service connection for a disorder manifested by joint inflammation. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

D. M. Ames, Counsel


INTRODUCTION

The Veteran had active service from December 1969 to February 1972.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. 

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.

The Veteran testified at a hearing in October 2011 before the undersigned. A copy of the transcript has been associated with the claims file. At the hearing, he submitted additional evidence and waived his right to have it initially considered by the RO. 38 C.F.R. §§ 20.800, 20.1304(c) (2012).

The issue of entitlement to service connection for a disorder manifested by bilateral foot pain 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. The preponderance of the evidence reflects that the Veteran does not have hypertension due to any incident of his active duty service. 

2. The preponderance of the evidence reflects that the Veteran does not have emphysema due to any incident of his active duty service, to include as secondary to exposure to herbicides. 

3. The preponderance of the evidence reflects that the Veteran does not have a bilateral jungle rot claimed as a deformity of the feet/lower extremity condition, due to any incident of his active duty service.

4. The preponderance of the evidence reflects that the Veteran does not have a disorder manifested by joint inflammation, including arthritis, due to any incident of his active duty service or that manifested within one year of separation.


CONCLUSIONS OF LAW

1. The Veteran's hypertension was not incurred or aggravated in service, and may not be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303 3.307, 3.309 (2012). 

2. Emphysema was not incurred or aggravated in service. 38 U.S.C.A. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 

3. Jungle rot, claimed as a bilateral foot deformity and a condition of the lower extremities, was not incurred or aggravated in service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 

4. A disorder manifested by joint inflammation was not incurred or aggravated in service, and arthritis may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303 3.307, 3.309 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate 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); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

VA has satisfied its duty to notify by issuing a pre-adjudication notice letter in December 2008. This letter advised the Veteran of what evidence was required to substantiate his claims, and of his and VA's respective duties for obtaining evidence. The December 2008 letter provided notice regarding the disability evaluation and effective date elements of a service connection claim. Dingess, 19 Vet. App. at 473. 

The duty to assist provisions of the VCAA have been met. The claims file contains service treatment records (STRs), reports of post-service medical treatment, and a transcript of his October 2011 hearing. 

The Veteran has not been afforded VA examinations to assess the nature and etiology of his hypertension, lung condition, bilateral lower extremity disability, or joint inflammation. VA must provide a VA medical examination 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 medical evidence on file for VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 

With regard to hypertension, the Veteran has not been shown to have an event, disease, or injury in service to which a current diagnosis could be related. His service treatment records are negative for any complaints, treatment, or diagnosis of hypertension and the record contains no probative evidence that demonstrates otherwise. Waters v. Shinseki, 601 F. 3d 1274, 1278 (Fed. Cir. 2010) (noting that a veteran's conclusory generalized statement that a service illness caused his present medical problems was not enough to entitle him to a VA medical examination since all veterans could make such a statement, and such a theory would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require VA to provide such examinations as a matter of course in virtually every disability case).

With regard to emphysema, the Veteran has not been shown to have emphysema at any time during the appeal period. He has chronic obstructive pulmonary disease (COPD). The RO denied entitlement to COPD in a rating decision that is not currently on appeal. The Veteran also has asthma. His service treatment records are negative for any complaints, treatment, or diagnosis of asthma and the record contains no probative evidence that demonstrates otherwise. Further, there is no competent evidence that the Veteran was exposed to herbicides during service. Therefore, because there is no event, injury, or disease in service or a service-connected disability to which a current disorder could be related, the Board finds that a VA examination is unnecessary. 38 C.F.R. § 3.159(c)(4)(i) ; cf. Duenas v. Principi, 18 Vet. App. 512, 517 (2004), citing Paralyzed Veterans of Am. V. Sec'y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003) (noting that a medical examination conducted in connection with claim development could not aid in substantiating a claim when the record does not already contain evidence of an in-service event, injury, or disease).

With regard to jungle rot and/or a bilateral lower extremity disability, the record does not include competent and credible evidence of such disability. Therefore, because there is no current disorder that could be related to an event, injury, or disease in service, the Board finds that a VA examination is unnecessary. Id., see also Waters, 601 F. 3d at 1278. 

Lastly, with regard to a disorder manifested by joint inflammation, the Veteran has been diagnosed with nonspecific arthritis. He has not specified which joints are inflamed and stated that he did not know if he had been diagnosed with any disability of a joint. He stated that he knows he has a disability because his body hurts and he feels older than he is. His service treatment records are negative for any complaints, treatment, or diagnosis of joint problems and the record contains no probative evidence that demonstrates otherwise. As will be discussed below, the Board finds that the Veteran's lay statements regarding continuity of symptomatology are not credible. An examination is not warranted. 

The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide the appeal. He has been given ample opportunity to present evidence and argument in support of his claims. Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of this issue has been obtained and the case is ready for appellate review. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012). 
Service Connection 

Service connection may be granted for a 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. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. For the showing of chronic disease in service, (or within a presumptive period per § 3.307), there is required 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." 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. Medical nexus evidence demonstrating an etiological link is not necessary to prove service connection when evidence, regardless of its date, shows that a Veteran had a chronic condition in service, or during an applicable presumptive period, and that he still has the same chronic condition. Groves v. Peake, 524 F.3d 1306, 1309-1310 (2008). See also 38 C.F.R. § 3.303(b). In this regard, chronic diseases listed at 38 C.F.R. §§ 3.307, 3.309 are accorded special consideration for service connection. Where a Veteran served at least 90 days during a period of war or after December 31, 1946, and a listed chronic disease, such as arthritis and/or hypertension, becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease will be presumed to have been incurred in or aggravated by, service, even though there is no evidence of such disease during service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Thus, for chronic diseases specifically listed at 38 C.F.R. § 3.309(a), if there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b); see also, Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 

Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (finding that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis herein focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). 

The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 

Hypertension

The Veteran has been diagnosed with hypertension, satisfying the first element of a service connection claim. Hickson, 12 Vet. App. at 253. According to 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101, Note (1) (2012), hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. For purposes of that section, the term hypertension means that the diastolic blood pressure is predominantly 90 mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm. Further, according to DC 7101, the minimum compensable rating of 10 percent for hypertension requires diastolic blood pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum elevation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. 

The Veteran's STRs are negative for any diagnosis of or treatment for hypertension or elevated blood pressure. At his December 1969 enlistment examination, his blood pressure was within normal limits at 122/72. In his report of medical history, he denied a history of high blood pressure. At his February 1972 separation examination, his blood pressure was within normal limits at 114/76 and hypertension was not noted by the examining physician. His STRs do not contain other blood pressure readings. The second element of a service connection claim is not met. Id. 

The nexus requirement may be satisfied by evidence that a chronic disease subject to presumptive service connection (here, hypertension) manifested itself to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In this case, the evidence does not show that the Veteran had hypertension that manifested to a compensable degree within one year of separation in February 1972. At his October 2011 hearing, he testified that he was first diagnosed with hypertension in 2000 and that was when he began to take medication. Presumptive service connection is not warranted. 

Lastly, the preponderance of the evidence is against a nexus between the Veteran's current hypertension and his period of active service. His post-service treatment records show treatment for hypertension but do not indicate a link to service. 

In October 2011, the Veteran testified that he gained weight in service and that after he separated from service, his blood pressure was elevated. As noted above, the Veteran's separation examination blood pressure was 114/76. He underwent a VA examination in August 1983 and his blood pressure was within normal limits at 124/80 and hypertension was not diagnosed. The Veteran is competent to state whether he was noted to have elevated blood pressure. Layno v. Brown, 6 Vet. App. 465 (1994). To the extent he believes that he had elevated blood pressure when he left the military, his statement is credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). However, it is less probative than the blood pressure reading at his separation examination and the one at his August 1983 VA examination. The Veteran testified that he was not diagnosed with hypertension until 2000, 28 years after separation from service. Although not dispositive, a lengthy period without complaint or treatment is considered evidence that there has not been a continuity of symptomatology and weighs heavily against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Veteran's lay assertion is outweighed by the other evidence of record. 

The Board finds that the preponderance of the evidence is against service connection for hypertension. 38 U.S.C.A. § 5107(b). The appeal is denied. 

Emphysema

The Veteran asserts that he has emphysema as a result of exposure to chemical weapons in service as part of Operation Red Hat. Alternately, he asserts that he was exposed to Agent Orange by handling equipment that had been in Vietnam and had not been cleaned. The record indicates that the Veteran served in Okinawa from May 1970 to November 1971. There is no verified or claimed service in Vietnam. The Board notes, however, that Agent Orange and other herbicide agents were not included in the items stored in Okinawa and moved to Johnston Island for storage during Operation Red Hat in 1971. The transferred agents involved chemical warfare agents, mustard gas and VX nerve gas. Thus, although not verified, while the Veteran may have been exposed to chemical munitions during service, Agent Orange is not a chemical weapon but a tactical herbicide. Further, the U.S. Army and Joint Service Records Research Center was unable to document that the Veteran was exposed to Agent Orange while stationed in Okinawa, Japan as available records did not document the spraying, testing, transporting, storage, or usage of Agent Orange in Okinawa between May and June 1970. The Veteran's assertions regarding his proximity to equipment that had been in Vietnam and were allegedly covered with herbicides is essentially anecdotal and unverified.

The Veteran's STRs and post-service treatment records are entirely negative for a diagnosis of emphysema. He has been diagnosed with COPD, but service connection was denied for COPD in a rating decision that is not currently on appeal and is therefore outside the scope of this decision. In October 2011, he testified that he had been diagnosed with asthma and his post-service treatment records reflect this diagnosis. The first element of a service connection claim is satisfied. Hickson, 12 Vet. App. at 253.

The Veteran asserts he was treated for breathing problems in service. On his report of medical history for his December 1969 enlistment examination, he reported a history of frequent and chronic colds. No respiratory condition was noted on his entrance examination and his respiratory evaluation was normal. In service, he was treated several times for allergic skin reactions but was not noted to have a respiratory condition. In October 1970 he had a normal chest x-ray. His February 1972 separation examination was negative for any symptoms or diagnoses of a respiratory condition. The second element of a service connection claim is not satisfied. Id. 

At his hearing, the Veteran asserted that he was exposed to chemicals such as herbicides during Operation Red Hat, while he was serving on Okinawa. He believes this was the cause of his lung condition. Alternatively, he argued that his lung condition was caused by his allergies in service. As noted above, however, Operation Red Hat did not involve herbicides, and to the extent that he purportedly was involved in this operation and exposed to chemical warfare agents, there is no competent or credible evidence that any current emphysema is related to such exposure.  Further, neither emphysema nor asthma are among the diseases associated with exposure to herbicides for the purposes of presumptive service connection and no evidence of record indicates that there may be a direct link between such exposure and his condition. 38 C.F.R. §§ 3.307, 3.309; see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 

The Veteran testified that he has experienced respiratory problems continuously since service. He is competent to discuss observable symptoms such as breathing problems. Layno v. Brown, 6 Vet. App. 465 (1994). For the reasons discussed below, the Board finds his assertions not credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). 

His statements are contradicted by the STRS, which are entirely devoid of any chronic respiratory problems. The Veteran's pre-separation physical examination is particularly probative both as to his subjective reports and their resulting objective findings. They were generated with a view towards ascertaining the Veteran's then-state of physical fitness and are akin to statements of diagnosis or treatment. Rucker v. Brown, 10 Vet. App. 67, 73(1997) (Observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rationale that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). 

Further, the Veteran filed claims for compensation benefits in June 1983 and December 1984 and did not include any respiratory condition as part of his claim. Shaw v. Principi, 3 Vet. App. 365 (1992) (a veteran's delay in asserting a claim can constitute negative evidence that weighs against the claim).

There are no post-service records prior to 2002. The Board may not find the Veteran not credible based upon a lack of evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, at his May 1985 VA examination he stated that he did not have a history of difficulty breathing. This provides evidence against his assertion that he has experienced breathing problems since service. Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by the Veteran). The Veteran's statements in this regard are not credible for the reasons discussed above, and are therefore not probative evidence. 

There is no other evidence of record linking his claimed emphysema to his period of active service. The Board finds that the preponderance of the evidence is against service connection for emphysema. 38 U.S.C.A. § 5107(b).  The appeal is denied. 

Jungle Rot/Lower Extremity Condition

The Veteran has not been diagnosed with jungle rot. At his hearing, he testified that he had a bilateral lower extremity disability manifested by pain in his legs. He stated that he has a skin condition on his feet. He stated that it began in the military. He also stated that he was prone to infections because he was diabetic. The Veteran has been diagnosed with diabetes mellitus, but it is not a service-connected condition. The record does not show that the Veteran has a bilateral lower extremity disability, and there is no competent and credible evidence that he has had such a disability during the entirety of the appeal period. McClain v. Nicholson, 21 Vet. App. 319, 321-323 (2007). Therefore, the first element of a service connection claim is not met. Hickson, 12 Vet. App. at 253. Because the Veteran does not have a bilateral lower extremity condition to include jungle rot, the preponderance of the evidence is against his claim. 38 U.S.C.A. § 5107(b).  The appeal is denied. 


Joint Inflammation Disorder

In October 2011, the Veteran testified that he had pain in his joints since the 1970s and that his whole body hurt. He stated that he did not know if he had been diagnosed with any disability involving the joints. When asked to clarify his claim, he began to discuss his skin condition and how it made him feel worn out. He also stated that he had a tumor removed from his abdomen. The Veteran was unable to articulate which joints were impacted or specify a joint condition for which he sought service connection. 

During the appeal period, the Veteran's VA treatment records are mostly silent for a condition of the joints. In December 2009, he complained of joint and foot pain for over 30 years. Degenerative disc disease (DDD) as well as "pain in limb" were, in pertinent part,  diagnosed. 

Prior to the start of the appeal period, in February 2002, Dr T. K., a private physician, noted that the Veteran had arthritis in his hands. In October 2007, Dr. R S., a private physician, noted that the Veteran had osteoarthritis but did not state which joints were impacted. 

Construing the Veteran's claim for "joint inflammation" in the most liberal manner possible, the Board interprets it to encompass the above diagnoses of arthritis as well as DDD, and the first element of a service connection is met. Hickson, 12 Vet. App. at 253.

The Board notes that the Veteran has complained of unspecified joint pain. Pain alone, without a diagnosis or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). 

During his testimony, the Veteran stated that his pain began in the 1970s but did not articulate an incident in service that caused it. The Veteran's STRs are negative for any symptoms of or a diagnosis of a joint disorder, including the back. The STRs note a fractured toe and deformity, and this is discussed in the Remand section below. The second element of a service connection claim is not met. Hickson, 12 Vet. App. at 253.

The nexus requirement may be satisfied by evidence that a chronic disease subject to presumptive service connection (here, arthritis) manifested itself to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In this case, the evidence does not show that the Veteran had arthritis that manifested to a compensable degree within one year of separation in February 1972, nor does the Veteran so contend. Presumptive service connection is not warranted. 

The medical evidence of record is entirely negative for a link between the Veteran's arthritis, DDD or any other joint condition and his period of military service. Although he has been diagnosed with arthritis and DDD, his post-service treatment records are largely silent for treatment other than his reports of joint pain. The post-service medical records are not probative evidence in support of a nexus. 

The Veteran testified that he has had joint problems since the 1970s. He is competent to discuss observable symptoms such as joint pain. Layno v. Brown, 6 Vet. App. 465 (1994). For the reasons discussed below, the Board finds his assertion not credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). 

His statements are contradicted by the STRs, which are entirely devoid of any joint problems. The Veteran's pre-separation physical examination is particularly probative both as to his subjective reports and their resulting objective findings. They were generated with a view towards ascertaining the Veteran's then-state of physical fitness and are akin to statements of diagnosis or treatment. Rucker v. Brown, 10 Vet. App. 67, 73(1997); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46. 

Further, the Veteran filed claims for compensation benefits in June 1983 and December 1984 and did not include any joint condition as part of his claim. Shaw v. Principi, 3 Vet. App. 365 (1992) (a veteran's delay in asserting a claim can constitute negative evidence that weighs against the claim). The Board finds that the Veteran's assertion of continuity of symptomatology with respect to joint inflammation (arthritis) is not credible for the reasons discussed above, and is therefore not probative evidence. 

There is no other evidence of record linking arthritis, DDD or any other joint condition to his period of active service. The Board finds that the preponderance of the evidence is against service connection for a disorder manifested by unspecified joint inflammation. 38 U.S.C.A. § 5107(b).  The appeal is denied. 


ORDER

Service connection for hypertension is denied. 

Service connection for emphysema is denied.

Service connection for jungle rot/bilateral lower extremity disability is denied. 

Service connection for a disorder manifested by joint inflammation is denied. 


REMAND

While the Board regrets the further delay that a remand of this case will cause, the record is not ready for appellate review of the remaining issue on appeal. The following further development is required. 

The Veteran testified about several foot problems. He discussed fracturing a toe in service, but he was unable to specify which one. He stated that his toe was pushed on top of his other toes. He also stated that he has growths on his toes. 

At his December 1969 enlistment examination, the physician noted that the Veteran fractured his left fifth toe three years prior to enlisting, and that he had a calcium deposit on the bottom of his right foot. In February 1970, it was noted that the Veteran had a possible fracture of a toe on his left foot, and was diagnosed with chronic degenerative joint disease of unspecified toes on his left foot. In September 1970 he complained of swelling of his right foot and three to four red sores were noted. He was told to treat them with warm saline soaks. Foot problems were not noted at separation.

VA must provide a VA medical examination 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 medical evidence on file for VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is a low one. Id., at 83. 

In March 2009 the Veteran was noted to have a flexion deformity and a bony protrusion on either the base of the distal phalanx or intermediate phalanx on an unspecified toe of his left foot. Because the Veteran had a noted pre-existing left fifth toe fracture and right foot calcium deposit, and was seen for foot problems in-service, there is an indication that the Veteran may have a disability that began in service, or a preexisting disability that was aggravated during service. However, the Board does not have sufficient medical evidence to ascertain the nature and etiology of any current foot disabilities. Thus, a VA examination is required. McLendon v. Nicholson, 20 Vet. App. 79 (2006), see also Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991) (the Board may not make use of its own unsubstantiated medical conclusions); 38 U.S.C.A. § 5103A(d). 

Accordingly, the case is REMANDED for the following action:

1. Schedule the Veteran for an examination with an appropriate clinician. 

The purpose of the examination is to determine whether the Veteran has a left and/or right foot disability that had its onset in, or was aggravated by, active service; whether arthritis was manifested to a compensable degree within one year of active service; and whether any such foot disabilities are otherwise related to any incident of service.

The following considerations will govern the opinion:

a) The claims folder and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. 

b) The mere statement of the examiner's expertise and/or a bare summary conclusion is not alone sufficient under the law to accomplish VA's legal obligation to assist the Veteran. By law, the Board must evaluate multiple factors in determining whether medical opinions are sufficient to evaluate a claim. These factors include but are not limited to whether the examiner was aware of all facts of record; reviewed the claims folder; conducted any necessary clinical testing or interview with the Veteran, and whether the examiner explained the factual and medical bases for any opinion. 

c) The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the credibility of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. 

d) The examiner must provide all applicable diagnoses for any foot or toe disabilities of each foot. For each condition diagnosed, the examiner must provide an opinion as to whether it began during active service or is related to any incident of service. 

f) If arthritis is diagnosed, the examiner must state whether it began within one year of the Veteran's separation from service. 

g) If a disability of the left fifth toe or a calcium deposit on the right foot is diagnosed, the examiner must also opine as to the following: 
 
i) On the basis of the clinical record, is there clear and unmistakable evidence (obvious or manifest) that the Veteran's preexisting left fifth toe facture and/or right foot calcium deposit were not aggravated to a permanent degree in service beyond that which would be due to the natural progression of the disease?

ii) If the Veteran's left fifth toe fracture and/or right foot calcium deposit are not found to have so preexisted service, did they have their onset during active military service? 

h) The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established medical principles. 

i) If the examiner is unable to render the requested opinion(s) without resort to speculation, he or she must so state. A complete explanation for such a finding must be provided. 

2. After the above has been completed, the RO must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 

3. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, in whole or in part, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity 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 or matters 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. 2011).




______________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs