Citation Nr: 1308956	
Decision Date: 03/15/13    Archive Date: 03/25/13

DOCKET NO.  08-09 186	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi

THE ISSUES

1.  Entitlement to service connection for a right foot disorder.

2.  Entitlement to service connection for hypertension.

3.  Entitlement to service connection for migraine headaches.


REPRESENTATION

Appellant represented by:	Mississippi Veterans Affairs Commission


WITNESS AT HEARING ON APPEAL

The Appellant

ATTORNEY FOR THE BOARD

Robert E. O'Brien, Counsel


INTRODUCTION

The Veteran had essentially continuous active duty service from November 1952 to November 1957.

This appeal to the Board of Veterans' Appeals (Board/BVA) is from a July 2007 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which determined the Veteran had not submitted new and material evidence and, therefore, denied his petition to reopen his claim for service connection for a right foot disorder.  The RO also denied his claims for service connection for bilateral hearing loss, migraine headaches, and hypertension. He appealed all of these claims.

The RO since has issued another decision, however, in September 2009, during the pendency of this appeal, granting the claim for service connection for bilateral (i.e., right and left ear) hearing loss and assigning an initial 20 percent rating retroactively effective from January 25, 2007, the date of receipt of this claim.  The Veteran did not in response appeal for either a higher initial rating or earlier effective date.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement (NOD) thereafter must be timely filed to initiate appellate review of the claim concerning "downstream" issues such as the compensation level assigned for the disability and effective date).  So the hearing loss claim is no longer on appeal. 

In a February 2011 decision, the Board determined there was new and material evidence and, therefore, granted the Veteran's petition to reopen his claim for service connection for a right foot disorder.  However, rather than immediately readjudicating this claim on its underlying merits, the Board instead then remanded this claim, as well as those for migraine headaches and hypertension, for further development and consideration.  But since there was not compliance with the remand directives, the Board again remanded these claims in July 2012.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a Veteran is entitled, as a matter of law, to compliance with remand directives, and the Board itself commits error in failing to ensure this compliance).  Just as before, the remand of these claims to the RO was via the Appeals Management Center (AMC).

The AMC since has completed all requested development, but continued to deny the claims in a January 2013 supplemental statement of the case (SSOC).  The Veteran indicated in his February 2013 SSOC Notice Response that he had no other information or evidence to submit (that is, other than the one last additional statement he submitted along with that response).  He therefore asked the AMC to return his case to the Board for further appellate consideration as soon as possible.

The Board has advanced the appeal of these claims on the docket pursuant to 38 C.F.R. § 20.900(c) (2011).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

The most competent and credible, and therefore probative, medical and other evidence of record indicates the Veteran's right foot disorder, hypertension, and migraine headaches did not originate during his active military service and are not shown to otherwise be related or attributable to his service, including caused or worsened by a service-connected disability.


CONCLUSION OF LAW

It is not shown his right foot disorder, hypertension, and migraines are the result of disease or injury incurred in or aggravated by his active military service, or that they may be presumed to have been incurred in service, or that they are proximately due to, the result of, or aggravated by a service-connected disability.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2012).



REASONS AND BASES FOR FINDING AND CONCLUSION

The Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duties to notify and assist a Veteran in developing claims for VA benefits.  The VCAA was codified as amended at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126, and the implementing VA regulations were codified as amended at 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326(a).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, not of record:  (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that 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).

Ideally, the VCAA notice should address all five elements of the claim for service connection:  1) Veteran status, 2) existence of the claimed disability, 3) relationship between the disability and military service, but also the "downstream" 4) disability rating, and 5) effective date.  Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).

Also, ideally, the VCAA notice should be provided to the claimant before an initial unfavorable decision on the claim.  Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004) (Pelegrini II).  If, however, for whatever reason it was not, or the notice provided was inadequate or incomplete, this timing error can be effectively "cured" by providing any necessary VCAA notice and then readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated, rather preserved, and the Veteran is given ample opportunity to participate effectively in the adjudication of the claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

VCAA notices errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on a case-by-case basis.  And as the pleading party attacking the agency's decision, the Veteran, not VA, has this burden of proof of not only establishing error, but, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of the claim.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

In this case, the Board finds that the VCAA notice requirements have been satisfied by way of various letters sent throughout the course of this appeal.  The Veteran has received all required notice, has had a meaningful opportunity to present evidence that would help him develop his claims, and is not prejudiced by any technical notice deficiency along the way.  See Conway v. Principi, 353 F.3d 1,369 (Fed. Cir. 2004).  The claims have been remanded by the Board on two separate occasions for further development and were most recently readjudicated by the AMC in the January 2013 SSOC.  The Veteran indicated in his February 2013 response to that SSOC that he had no other evidence or information to submit, that is, other than the one final statement he submitted along with that SSOC Notice Response Form.

Regarding the duty to assist, VA also has satisfied its obligations in terms of obtaining all potentially relevant evidence concerning the claims.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  Only some, though unfortunately not all, of the Veteran's service treatment records (STRs) are available for consideration.  Namely, while the reports of his separation examinations in November 1955 and November 1957 are of record, his other STRs are not.  VA made the required attempts to obtain his complete STRs, including his military personnel records.  See Moore v. Derwinski, 1 Vet. App. 401 (1991) (holding that the heightened duty to assist a Veteran in developing facts pertaining to his claims in a case in which STRs are presumed destroyed includes the obligation to search for alternative medical records, such as Surgeon General's Office (SGO) extracts and by having him complete and return National Archives (NA) Form 13055).

A formal finding of the unavailability of these remaining STRs was made in November 2009.  It was indicated that all efforts to obtain the STRs from the National Personnel Records Center (NPRC) in St. Louis, Missouri, had been exhausted.  The NPRC is a military records repository.  It was determined that further attempts to obtain these records would be futile.  The Veteran also was appropriately notified of this.  38 C.F.R. § 3.159(c)(2), (c)(3), and (e)(1).

Also, the Social Security Administration (SSA) was contacted in 2009, but a response was received from this other Federal Government agency in January 2009 indicating that any medical records pertaining to the Veteran had been destroyed.

VA therefore has exhausted all efforts to obtain additional STRs or SSA records.  See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (indicating VA need only obtain relevant SSA records, which, under 38 U.S.C. § 5103A, are those records relating to the injury for which the Veteran is seeking VA benefits and have a reasonable possibility of helping to substantiate the claim).

Further concerning these missing records, in this circumstance VA has a heightened duty to consider the applicability of the benefit-of-the-doubt rule, to assist the Veteran in developing his claims, and to explain the reasons and bases for its decision.  See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005), citing Russo v. Brown, 9 Vet. App. 46, 51 (1996).  See also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).  However, missing STRs, alone, while indeed unfortunate, do not obviate the need for the Veteran to still have competent and credible evidence supporting his claims by suggesting a correlation between his claimed conditions and his military service.  See Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore, 1 Vet. App. at 406 and O'Hare, 1 Vet. App. at 367).  That is to say, missing STRs do not lower the threshold for an allowance of a claim; there is no reverse presumption for granting a claim.  The legal standard for proving a claim is not lowered; rather, the Board's obligation to discuss and evaluate evidence is heightened.  See Russo v. Brown, 9 Vet. App. 46 (1996).  Cf. Collette v. Brown, 82 F.3d 389, 392-93 (Fed. Cir. 1996); Arms v. West, 12 Vet. App. 188, 194-95 (1999).

With all of this in mind, the Board remanded these claims, in part, to have the Veteran undergo VA compensation examinations for medical nexus opinions concerning the etiologies of these claimed conditions - and especially in terms of the likelihood they are related or attributable to his military service or date back to his service.  38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4).  See also McLendon v. Nicholson, 20 Vet. App. 79 (2006).  The medical nexus opinions obtained, particularly the addendum statements in August 2012 provided following and as a result of the additional remand, are responsive to this determinative issue of causation, so additional examinations and opinions are not needed.  38 C.F.R. § 4.2.  See also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to obtain an examination and opinion for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one, or, at a minimum, notify the claimant why one will not or cannot be provided).  See also Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (VA's duty to assist includes providing an adequate examination once such an examination is indicated).  The medical evidence of record provides the information needed to properly address all pertinent concerns, and the medical nexus opinions addressing the determinative issue of causation included consideration of the Veteran's relevant medical and other history, as well as contained the required discussion of the underlying medical rationale.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  

The Veteran also testified at a hearing before a local Decision Review Officer (DRO) in July 2008.  A transcript of the proceeding is in the claims file and has been reviewed in deciding this appeal.

Thus, given that even the Veteran acknowledges he has no other evidence or information to submit, appellate review of his claims may proceed.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  Given all that has occurred, it is difficult to discern what additional guidance VA could have provided him regarding what further evidence he should submit to substantiate his claims.  See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims.").  See also Reyes v. Brown, 7 Vet. App. 113, 116 (1994) and Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances when a remand would not serve any useful or meaningful purpose or result in any significant benefit to the Veteran).

Governing Statutes, Regulations, and Precedent Cases

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or a disease incurred in or aggravated by active military service in the line of duty.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).

Establishing entitlement to service connection generally requires competent and credible evidence of three things:  1) A current disability; 2) in-service incurrence or aggravation of a relevant disease or injury; and 3) a causal relationship, that is, a nexus or correlation, between the disease or injury in service and the current disability.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002).

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

So service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available.  Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

Other diseases initially diagnosed after service also may be service connected if the evidence, including that pertinent to service, shows the diseases were incurred in service.  38 C.F.R. § 3.303(d). 


But if chronicity (i.e., permanency) of disease or injury in service is not shown, or legitimately questionable, then a showing of continuity of symptomatology following service is required to support the claim.  38 C.F.R. § 3.303(b).  For the showing of chronic disease in service, there is a required 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."  Id.  Subsequent manifestations of the same disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes.  Establishing continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of satisfying the second and third Shedden requirements to show chronicity of disease or injury in service and, in turn, link current disability to service.  See also Clyburn v. West, 12 Vet. App. 296, 302 (1999).

Consider also, however, that a recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as "chronic" under 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013).

Service connection also is permissible on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability.  38 C.F.R. § 3.310(a) and (b).  See also Allen v. Brown, 7 Vet. App. 439, 448 (1995) (when aggravation of a Veteran's nonservice-connected [secondary] condition is proximately due to or the result of a service-connected condition, such Veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability as shown prior to the aggravation; Libertine v. Brown, 9 Vet. App. 521, 522 (1996) (additional disability resulting from aggravation of a nonservice-connected [secondary] condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a)).  If a claimant succeeds in establishing service connection for a secondary condition, "the secondary condition shall be considered a part of the original condition."  38 C.F.R. § 3.310(a).

Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected.  However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury.  38 C.F.R. § 3.310(b).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

A layperson is generally incapable of opining on matters requiring medical knowledge.  Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd. sub nom Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998).  However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when:  1) a layperson is competent to identify the medical condition (for example, a broken leg, separated shoulder, pes planus, varicose veins, tinnitus, so on and so forth); 2) the layperson is reporting a contemporaneous medical diagnosis; or 3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection."  Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also  38 C.F.R. § 3.159(a)(2).  When, for example, a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  In such cases, the Board is within its province to weigh the testimony and make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection.  See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007).

Thus, medical evidence is not always uncategorically required when the determinative issue involves either a medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a).  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  As held in Davidson, § 1154 requires that VA give due consideration to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  See also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence such as actual treatment records).  The Veteran is competent to report what he observes or feels through his or her senses.  See Layno.  When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011).

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


Factual Background and Analysis

The Board has thoroughly reviewed all the evidence in the claims folder.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss in detail each and every piece of evidence submitted by the Veteran or in his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  The analysis below focuses on the most salient and relevant evidence, and on what this evidence shows, or fails to show, on the claims.  The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board discuss its reasons for rejecting evidence favorable to him).  

Right Foot Disorder

A review of the available STRs reflects that the Veteran was seen on one occasion during his service, in December 1952, for an unknown condition.  He was returned to duty the following day, however.

On separation examination in November 1955 he expressed no complaints with regards to his feet, including as concerning his right foot in particular, and clinical evaluation at that time also revealed normal feet.  Likewise, at the time of his later separation examination in November 1957, there again were no complaints with regards to his feet, including as concerning his right foot in particular, and clinical evaluation again revealed his feet were normal.

Records concerning a disability determination by SSA in 1983 refer primarily to problems with the Veteran's low back as being responsible for his difficulties with employment.  These records do not refer to any problems with his right foot, including dating back to his military service.


The other post-service medical evidence includes a report of an examination of the Veteran's feet by VA in April 1994.  He complained of painful feet bilaterally.  He stated that, while in service in 1953, he had a problem with his feet while marching and was hospitalized for a brief period of time.  He did not remember any other specific treatment.  Then currently, X-rays of his feet were negative.  Clinical evaluation was also normal and the examination's diagnosis was "normal orthopedic examination of feet bilaterally."

The Veteran's initial claim for disability benefits because of right foot problems was not received until September 1993.  He stated that he had injured both feet while in training in early 1953.  He recalled having been hospitalized at a service department hospital for one week.  

Of record is a private medical report dated in May 2000 referring to an unrelated disability.  No reference was made to any problems with the right foot in the physician's report.

During his hearing before a local DRO in July 2008, the Veteran testified that he did not first seek medical treatment for right foot problems until 1994, so admittedly not until many years following his discharge from service.  He indicated that he was fitted with shoe braces by a private physician.  He related that the private physician did not tell him what was wrong with his feet.

The Veteran was provided an examination of his right foot by VA in February 2011.  He complained that in 1952 he was marching in the snow when he fell, and that he had continued to have pain in his right foot ever since.  Following clinical and X-ray examination, he was given a diagnosis of mild midfoot arthritis.  

Because, however, that VA examiner had not commented on the etiology of that diagnosis, including especially in terms of whether it was related or attributable to any disease, injury or event during the Veteran's military service, the Board remanded this claim in July 2012 to obtain this necessary supplemental medical nexus opinion.

A VA physician accordingly reviewed the claims file and the STRs in August 2012 and opined that he could not find any "specific event to link to [the Veteran's] midfoot condition.  I see no identifiable injury to the foot which could have potentially led to post-traumatic arthritis of the midfoot.  Given this information I would say it is less likely than not that his current foot pathology is related to his service."

In Dalton v. Nicholson, 21 Vet. App. 23 (2007), the U. S. Court of Appeals for Veterans Claims (Court/CAVC) found an examination inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of evidence in the Veteran's STRs to provide a negative opinion.

Here, at least at first glance, it appears the examiner is relying exclusively on the absence of any documented injury in the STRs as reason or cause for disassociating the current disability (midfoot arthritis) from the Veteran's military service.  This, if indeed the only reason for concluding unfavorably, seemingly would be penalizing the Veteran for not having this documentation in his STRs when, in fact, most of his STRs are not available for consideration through no fault of his.  In other words, it does not seem reasonable to say the Veteran does not have the required proof of injury in service when the records (his STRs) that could provide this proof are unavailable through no fault of his.  One must additionally consider, though, that at least some of his STRs are available for consideration, and they do not mention anything with regards to problems with his right foot in particular, including especially as a result or consequence of the type of activity in service that he now cites as the source or cause of his current right foot disability.  He had not relevant complaints concerning this foot while in service, and there equally were no objective clinical findings either, so the VA examiner's unfavorable opinion also appears to take this into account as well.

There is no medical evidence of record in the Veteran's favor.  The VA physician who reviewed the file in August 2012 indicated that he saw no indication of injury to the foot which could have potentially led to the currently diagnosed post-traumatic arthritis of the midfoot area.  

It is the responsibility of the Board to assess the credibility and weight to be given the evidence.  See Hayes v. Brown, 5 Vet. App. 60 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)).  The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as to any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board.  See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993).

In this case, while the Veteran believes that his current right foot arthritis is related to his military service, arthritis is not the type of "simple" condition that is readily amenable to just lay comment regarding either its diagnosis or etiology.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5003 and 5010 (indicating arthritis, including post-traumatic arthritis, must be objectively confirmed by X-ray).  See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue).  In this particular case at hand, the Board did indeed obtain a medical nexus opinion on this determinative issue of causation, and unfortunately it is unfavorable to the claim and more probative than the Veteran's unsubstantiated lay testimony to the contrary since, again, the type of condition at issue (namely, arthritis) does not lend itself to mere lay comment regarding its diagnosis and etiology.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (reiterating this axiom in a claim for rheumatic fever).

It is really unfortunate that not all the Veteran's STRs are available for consideration in this appeal, and he made a point of this in his most recent statement in February 2013 in response to the SSOC that had been issued the prior month, in January 2013.  Every effort has been made by VA to obtain all records still available.  What is of record are reports of his separation examinations in November 1955 and November 1957.  And it cannot simply be ignored that they reflect no mention whatsoever of any difficulty with his right foot.  Had he in fact been experiencing problems with this foot during his service, particularly on a chronic or recurrent basis as he is now alleging, it seems only logical that he would have mentioned this during those separation examinations, but he clearly did not.  Because they are far more contemporaneous to the events in question during his service, they tend to have more probative weight than his contrary assertions offered many years later, long after the fact.  See Struck v. Brown, 9 Vet. App. 145 (1996).

Although there is a report from service indicating he was seen for medical purposes on one occasion in 1952, the presumption is that whatever injury he had sustained healed rather quickly because he was returned to duty the following day and there were no further indications of any potentially relevant problems with his right foot for the remainder of his service, particularly again at the time of his separation examinations in 1955 and 1957.  Additionally, the record reflects he was seen for medical examination in conjunction with the claim with the SSA, and those records contained no reference whatsoever to any problems he might have been having with his right foot.  Further, while he was seen specifically for complaint of bilateral foot problems by VA in 1994, a thorough evaluation at that time was entirely normal and a diagnosis of a right foot disorder was not made.  The aforementioned medical evidence tends to refute his assertion that he has had right foot problems continuously since his service.  This is not simply a situation where there is a lack of medical evidence.  To the contrary, there are two service separation examinations of record and treatment records in the years following service, and they show there was no right foot disability for years following his discharge from service, either in the way of a relevant subject complaint or objective clinical finding such as a pertinent diagnosis.  In this circumstance, the Board may consider the absence of any indication of a relevant medical complaint until relatively long after service as one factor, just not the only or sole factor, in determining whether a disease or an injury in service resulted in chronic or persistent residual disability.  See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  See, too, Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology and had failed to account for the lengthy time period for which there was no clinical documentation of the claimed disorder).

Ultimately, the Board must consider all the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service, and any other pertinent facts.  Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000).  Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role.  See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness).

Accordingly, the Board finds that the preponderance of the evidence shows the Veteran did not have a chronic right foot disorder during his service and that his statements that he injured the right foot in service and has had problems ever since, while competent, are not credible.  See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (The Board must make an express credibility finding regarding lay evidence.)  Arthritis of the right foot was not diagnosed or objectively confirmed by X-ray within the one-year presumptive period following the Veteran's separation from service in November 1957, meaning by November 1958.  The Board therefore may not presume this arthritis was incurred during his service.  See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a).  Accordingly, because the evidence of record does not establish that the Veteran was disabled from any injury or disease during his service, service connection for a right foot disorder is not warranted.  

Hypertension

With regards to this claim for hypertension, the reports of the November 1955 and November 1957 general medical examinations reflect blood pressure readings within normal limits.  No reference then was made to hypertension, meaning persistently elevated blood pressure.  

The records concerning the SSA's disability determination in 1983 likewise are without reference to any problems the Veteran might have been having with hypertension.

Of record is a January 1982 communication from D. S. K., M.D.  He stated the Veteran had been under his care for a work-related injury sustained in March 1979.  Notation was made of the Veteran having a back disability.  No reference was made to hypertension.

The Veteran's initial claim for disability benefits that was received in September 1993 referred only to problems with his feet.  No reference was made to any problems with hypertension.

The Veteran was accorded a hypertension examination by VA in April 2010.  The claims file was reviewed by the examiner.  The Veteran gave the date of onset of elevated blood pressure as 1953, so during his military service.  He stated he was hospitalized for a week or two while in Korea for migraine headaches, high blood pressure, and an ear infection.  He stated that he was only given the medication equivalent of aspirin.  He was later released and returned to duty after a week or two, even though he did not feel well.  He stated he had been on blood pressure medication for many years, but was "unsure how long."  The examiner stated a review of the record showed "no medical records of evidence for claim could be found."  Following evaluation the Veteran was given a diagnosis of "essential hypertension, uncontrolled."  

In an addendum that same day, the examiner stated that "I see the diagnosis of essential hypertension rendered."  She stated she could not assume for rating purposes "that this means it is not due to the perforated tympanic membrane."  She opined that the Veteran's hypertension was not due to or related to his perforated tympanic membrane noted in service.  She gave as rationale that there were no anatomical or physiological manifestations of a perforated eardrum that could eventually result in a person having hypertension.  


Although that VA examiner disassociated the Veteran's hypertension from his perforated eardrum, the Board has in the past nonetheless remanded this claim for still further medical nexus opinion regarding whether the Veteran's hypertension incepted during his military service from November 1952 to November 1957, or to a compensable degree of at least 10-percent disabling within the one-year presumptive period following his discharge from service - meaning by November 1958, or is otherwise related or attributable to his military service, either directly, such as due to an injury or a disease in service, or secondarily by way of a service-connected disability, as alternatively either caused or aggravated by the service-connected disability.  However, the examiner who subsequently performed this VA compensation examination on remand in March 2011 merely provided a reiteration of the earlier opinion, disassociating the hypertension from the perforated eardrum, which the Board already had acknowledged and therefore did not need further comment concerning.  Therefore, another remand was required to comply with the prior remand directive.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999); and Chest v. Peake, 283 Fed. App. 814 (Fed. Cir. 2008).

The March 2011 examiner, like the prior April 2010 examiner, had indicated the Veteran's hypertension is not a result of his perforated tympanic membrane (ear drum) while on active duty in Korea.  But the Board already had explained when remanding this claim in February 2011 to, if possible, have the VA examiner that had evaluated the Veteran in April 2010, and who subsequently had submitted the medical nexus opinion in June 2010, provide supplemental comment concerning the likelihood (very likely, as likely as not, or unlikely) the Veteran's hypertension, though unrelated to his perforated tympanic membrane (ear drum) in service, nonetheless initially manifested during his service or alternatively to a compensable degree of at least 10-percent disabling within one year of his discharge from service, meaning by November 1958 (since he was discharged in November 1957).  So the Board did not need further comment on the asserted relationship between the hypertension and perforated tympanic membrane in service, since the VA examiner already had discredited this notion, rather, only on the alternative possibility the hypertension had initially manifested during service or within the one-year presumptive period following the Veteran's discharge.  And it was in this equally critical latter respect that the March 2011 VA examiner's comments were insufficient.

The March 2011 VA examiner clarified that the Veteran has essential hypertension, the most common type.  This examiner also conceded the Veteran may have had elevated blood pressure readings while hospitalized in Korea for his perforated tympanic membrane as he reports in his history.  An elevation in blood pressure or other vital signs such as heart rate and respiration, further explained this VA examiner, are all physiological signs associated with pain, and associated signs and symptoms of a perforated tympanic membrane are pain to the affected ear and dizziness.  Never did this VA examiner actually address, however, whether the elevated blood pressure readings in service (per the Veteran's history) were suggestive or indicative of hypertension, i.e., persistently elevated blood pressure versus just, instead, mere incidental or isolated findings in comparison.  Medical comment therefore also was still needed concerning this, prompting the Board to again remand this claim in July 2012.

Another health-care provider resultantly provided this necessary additional medical comment in August 2012, concluding that, although the Veteran "did have elevated blood pressure readings once or twice, that is normal during acute medical events but there was no ongoing diagnosis of HTN over the years until the 1970's so the past BP elevations were temporary and not related to current HTN."

So similar to the discussion pertaining to the right foot arthritis, the Board notes that the examinations done during service in 1955 and 1957 tend to refute the Veteran's assertion that he had hypertension during his service and has continued to during the many years since his discharge.  To reiterate, hypertension would imply persistently elevated blood pressure, not just episodically or on occasion and not just, as the VA examiner has explained, on account of a single isolated event such as a perforated eardrum, although the Veteran may have experienced a temporary elevation of his blood pressure after that event.  That is not tantamount to concluding it resulted in chronic hypertension, however, and that is the point the VA examiner makes.

The Board has unsuccessfully attempted to obtain records regarding reported hospitalization during service, but critical documents that are of record include the separation examination reports in November 1955 and November 1957.  They are dated subsequent to the reported hospitalization and contain no indication whatsoever of the Veteran having elevated blood pressure readings, let alone persistently elevated readings suggestive of hypertension.  Lay statements when medical examination is being conducted are afforded great probative value.  Such records are generated with a view toward ascertaining the appellant's then state of health.  See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care).

Thus, the Board finds that the Veteran's current statements that he had hypertension during his service and has had it ever since, even if competent, are not also credible, therefore not ultimately probative.  Consider also that a diagnosis of hypertension is based on objective data, namely, blood pressure readings taken over a course of time, so is not the type of "simple" condition lending itself to probative lay comment regarding its diagnosis and etiology.  See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1), indicating hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days.  It is difficult to understand how the Veteran would not mention having been hospitalized when examined in 1955 and again in 1957, even aside from the fact that there was no indication of elevated blood pressure, certainly not persistently so, during either of those evaluations.  The medical opinions of record are against this claim and there is no medical opinion of evidence to the contrary.  Hypertension also was not diagnosed within one year of his separation from service in 1957 to otherwise warrant presuming it was incurred during his service.  See 38 C.F.R. §§ 3.307, 3.309(a).


Migraine Headaches

The Veteran's STRs (those available) also do not make any reference to complaints or findings suggesting he had migraines while in the military.  The records reflect he was seen on sick call on one occasion in December 1952.  However, he was returned to duty the same day, so rather immediately.  The reports of his November 1955 and November 1957 examinations make no reference to migraines, either in the way of a relevant complaint or objective clinical finding such as a pertinent diagnosis.  Clinical evaluation in November 1955 was entirely unremarkable.  At the time of the November 1957 examination, notation was made of a perforation of the right tympanic membrane.  However, there was no indication of any headaches, including associated with that trauma.

The post-service medical evidence includes documentation in conjunction with a SSA disability benefits claim.  The records reflect that the Veteran had significant back problems in the early 1980s.  But there was no mention of migraines.

A January 1982 statement from D. S. K., M.D., indicates the Veteran had been under his care for a work-related injury sustained in March 1979.  The focus of Dr. K.'s comments was on the Veteran's back disability.  There was no mention of migraines or even a history of this disease, certainly not dating back to the Veteran's service.

Of record, as well, is an undated communication from the Veteran in which he refers to having undergone extensive treatment for various problems, including migraine headaches "in the past years...."

Also of record is an undated statement from J.J.M., M.D., indicating the Veteran had been under his care since December 1986 for disabilities that included "severe vascular headaches."  But even accepting a history of headaches dating back to December 1986 or thereabouts, that was still far removed from the Veteran's service, which, as mentioned, had ended many years earlier in November 1957.  Dr. J.J.M. did not elaborate on just how long the Veteran had experienced headaches, including in terms of whether since his military service.

The Veteran had a VA examination of his feet in April 1994.  Medical history obtained in conjunction with the examination referred primarily to problems with his back and blood pressure.  He did not identify any difficulty he was experiencing at the time with headaches.  

In his application for compensation and/or pension benefits that was received in July 2007, he stated that, in pertinent part, he had migraine headaches that had begun in 1953 while in Korea.  He reported having received treatment while in Korea.  He did not refer to health-care providers from where he had received treatment in the years following service.  

Also on file is a report of a miscellaneous neurological disorder examination accorded the Veteran by VA in March 2011.  The claims file was reviewed by the examiner.  It was reported the Veteran's headaches began while in Korea in 1953.  It was remarked that at the time he was receiving treatment for a perforated eardrum.  He claimed that after discharge from service he began seeking treatment from private physicians for his headaches.  He and his son were unsure whether any head CT scans were done prior to a stroke he had in 2000.  Following examination the examiner opined that the Veteran's reported headaches were less likely than not caused by any service-connected acoustic trauma.  He stated the headaches were also less likely than not caused by or a result of exposure to hand grenades or heavy artillery during the Korean Conflict.  He gave as rationale that migraines were thought to be a type of vascular headache and vascular headaches are caused by problems with the blood vessels in the head.  The examiner explained that migraines "may start when blood vessels in your head widen or swell.  Veteran's hypertension has been determined to not be service connected to his military career.  He can, however, have associated headaches when his blood pressure is out of control.  His readings on today's visit were elevated, whereas his levels are normotensive with his clinical provider's visits.  He did not [complain of] a headache on today, yet headaches are a common side effect of hypertension out of control."  

Also of record is what appears to be the report of a telephone conversation between the Veteran and Dr. A.  The Veteran asked the physician whether an untreated perforated eardrum and headache pain may be intertwined with hypertension.  He stated this stemmed from an explosion to his ears in the Korean Conflict that to the present time had continued to drain.  The physician stated in response that "I would say that the answer is yes because untreated headache and perforated eardrum leads to stress which can give high blood pressure end result because stress is an important risk factor for high blood pressure.  On the other hand, persistent high blood pressure can give rise to headaches too...."  He remarked that it was important to be evaluated and receive treatment for the conditions.  No rationale from the physician was provided and there is no indication that he had access to the claims file.  

It is the responsibility of the Board to assess the credibility and weight to be given the evidence.  The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as to all evidence, the credibility and weight to be attached to medical opinions are within the province of the Board.  See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993).

In this case, the Board finds the 2011 VA examiner's opinion of greater probative weight than the general comments from Dr. A.  The VA examiner gave detailed reasons for her opinion that any current migraine headaches do not have any causal relationship to the Veteran's military service or to any service-connected disability.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (probative value of a medical opinion comes from its reasoning).  The VA examiner in 2011 had access to the entire claims file while Dr. A did not.  And while this, alone, is not determinative or dispositive of a medical opinion's probative value, it does have significance if evidence in the file, if considered, may have affected the underlying basis or outcome of the opinion.  See Neives-Rodriguez.  Further, it appears that Dr. A did not evaluate the Veteran in person, but rather, responded to a question over the phone.  Dr. Amir's comments were based on history given by the Veteran, a history which the Board finds to be not credible.  In Kowalski v. Nicholson, 19 Vet. App. 171(2005), the Court indicated the Board may not disregard a favorable medical opinion solely on the rationale it was based on a history given by the Veteran.  Rather, as the Court further explained in Coburn v. Nicholson, 19 Vet. App. 427 (2006), reliance on a Veteran's statements renders a medical report not credible only if the Board rejects the statements of the Veteran as lacking credibility.

The Veteran has claimed that he received treatment for headaches during his service and has had problems ever since service.  However, while he may or may not have been hospitalized in service for evaluation of headaches in 1953, and it is not his fault that records are not able to be obtained pertaining to any hospitalization at that time, the record does contain reports of examinations accorded him in 1955 and 1957.  At neither time did he make any reference whatsoever to having been hospitalized at any time during service and, in any event, no mention was made whatsoever of any problem with headaches, certainly not on an ongoing or chronic basis.  To the contrary, headaches are not referred to for years following service discharge.

The Board therefore finds that the preponderance of evidence regarding nexus weighs against a relationship between any current headaches and any service-connected disability or the Veteran's active service.  As such, service connection for migraine headaches under any theory is unwarranted.

In deciding these claims, the Board has considered the applicability of the benefit of the doubt doctrine, particularly, as mentioned, given the absence of some of the Veteran's STRs.  However, as a preponderance of the evidence is against the claims, for the reasons and bases discussed, this doctrine is not for application.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009).



ORDER

The claims of entitlement to service connection for a right foot disorder, hypertension, and migraine headaches are denied.



	                        ____________________________________________
	KEITH W. ALLEN
	Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs