Citation Nr: 1313620 Decision Date: 04/24/13 Archive Date: 05/03/13 DOCKET NO. 11-07 559 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for pes planus. 2. Entitlement to service connection for low back problems. 3. Entitlement to service connection for swelling of both hands. 4. Entitlement to service connection for swelling of both legs. 5. Entitlement to service connection for ruptured appendix/appendectomy. REPRESENTATION Veteran represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD L. Collins, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1948 to August 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in February 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In his March 2011 substantive appeal, the Veteran requested a video-conference hearing before a Veterans Law Judge. A hearing was scheduled for February 2013 but the Veteran failed to report. As such, his hearing request is deemed withdrawn. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002 & Supp. 2012). FINDINGS OF FACT 1. Pes planus is not shown to be causally or etiologically related to any disease, injury, or incident in service. 2. Low back problems are not shown to be causally or etiologically related to any disease, injury, or incident in service. 3. Swelling of both hands is not shown to be causally or etiologically related to any disease, injury, or incident in service. 4. Swelling of both legs is not shown to be causally or etiologically related to any disease, injury, or incident in service. 5. Ruptured appendix/appendectomy is not shown to be causally or etiologically related to any disease, injury, or incident in service. CONCLUSIONS OF LAW 1. The criteria for service connection for pes planus have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. The criteria for service connection for low back problems have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 3. The criteria for service connection for swelling of both hands have not been met. 38 U.S.C.A. §§ 1110, 1112, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.3.07, 3.309 (2012). 4. The criteria for service connection for swelling of both legs have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 5. The criteria for service connection for ruptured appendix/appendectomy have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA must provide claimants with notice and assistance in substantiating claims for benefits. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The notice requirements apply to all five elements of a service connection claim, including Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on the claim for VA benefits. 38 U.S.C.A. § 5103(a); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds that VA has satisfied its duty to notify. Specifically, a September 2008 letter, sent prior to the initial unfavorable decision issued in February 2009, advised the Veteran of the evidence and information necessary to substantiate his service connection claims and to establish a disability rating and an effective date. The same letter advised the Veteran of his and VA's respective responsibilities in obtaining the evidence and information. Relevant to the duty to assist, the Veteran's service treatment records (STRs), private treatment records from Dr. Eslami, and VA treatment records have been obtained and considered. The Veteran also identified his primary care physician, Dr. Donald Kwong, and provided the necessary release to obtain Dr. Kwong's treatment records. The RO made two attempts to obtain Dr. Kwong's treatment records, in November 2008 and December 2008. The Veteran was also informed in letters dated September 2008 and December 2008 that he could obtain Dr. Kwong's records and send them directly to the RO. The RO received no response to these attempts. The Board finds that the VA satisfied its duty to attempt to obtain the relevant private treatment records. 38 U.S.C.A. § 5103A(2)(B). In October 2008, the Veteran identified the Bessemer Outpatient Clinic (OPC) as his VA facility of treatment. The Bessemer OPC is an extension of the Birmingham VA Medical Center (VAMC), and the RO accordingly obtained all VA treatment records from the Birmingham VAMC system, dated September 2008 to February 2009. The Veteran has not identified any additional outstanding records that have not been requested or obtained. The Board acknowledges that the Veteran has not been provided with a VA examination in conjunction with his service connection claims decided below. However, as his service and post-service treatment records fail to suggest that he developed pes planus, low back problems, swelling of both hands, swelling of both legs, or ruptured appendix/appendectomy during or soon after service, and the medical evidence of record fails to suggest a nexus, VA's duty to provide an examination has not been triggered. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (holding that a VA examination is only warranted when the medical evidence suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits). The Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claims. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claims. II. Service Connection Claims Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability, in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.304. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including arthritis, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1112; 38 C.F.R. §§ 3.307, 3.309. When there is an approximate balance of evidence for and against the issue, all reasonable doubt will be resolved in the Veteran's favor. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. Pes Planus The Veteran contends that his claimed pes planus is due to service. Specifically, in his original claim application dated in September 2008, he lists "SMR" (Service Medical Records) as the medical facility that treated him for pes planus. Accordingly, the Veteran contends that he was treated for pes planus in service. The Veteran's STRs show pes planus was observed on entrance examination in September 1948. There are no other references to it, and his feet were characterized as normal when examined at service separation. The Veteran's VA treatment records do not show any reported history of pes planus. Nor do they show any current diagnoses, complaints, treatment, or observations thereof. His private treatment records from Dr. Eslami are similarly silent. The foregoing evidence of record makes clear that pes planus was not incurred in or aggravated by service. Service connection for this disability is denied. B. Low Back Problems The Veteran contends that his claimed low back problems are due to service. He does not provide an onset date for the problems, stating only that he feels they were caused while he was on active duty. Therefore, he contends that service connection is warranted. The Veteran's STRs are silent for back complaints. The separation examination report, dated July 1952, shows a normal spine and no diagnoses, history, or treatment of low back problems. The Veteran's post-service treatment records are silent with respect to low back problems. His VA treatment records do not show any reported history of low back problems. Nor do they show any current diagnoses, complaints, treatment, or observations thereof. His private treatment records from Dr. Eslami are similarly silent. The evidence of record does not show a current disability of low back problems. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer, supra. Therefore, the Board finds that the claim for service connection for low back problems must be denied because the preponderance of the evidence of record is against a finding that the Veteran has any current low back disability. C. Swelling of Both Hands The Veteran contends that his claimed swelling of both hands is due to service. He does not provide an onset date for the swelling, stating only that he feels it was caused while he was on active duty. Therefore, he contends that service connection is warranted. The Veteran's post-service private treatment records from Dr. Eslami are silent with respect to swelling of both hands. A VA treatment record dated January 2009 shows a subjective complaint of constant stiffness and arthritis in both hands. On physical examination, the VA physician found tenderness to palpation of the PIP joints in both hands, but specifically notes no edema in the extremities. She states that he has arthritis in his hands. The United States Court of Appeals for Veterans Claims has held that "a claimant's identification of the benefit sought does not require any technical precision." Brokowski v. Shinseki, 23 Vet. App. 79, 85 (2009); see also Ingram v. Nicholson, 21 Vet. App. 232, 256-57 (2007) ("It is the pro se claimant who knows what symptoms he is experiencing and that are causing him disability, .... [and] it is the Secretary who knows the provisions of title 38 and can evaluate whether there is a potential under the law to compensate an averred disability based on a sympathetic reading of the material in a pro se submission." (citations omitted)). Reading the material sympathetically, the Board finds the 2009 diagnosis of arthritis of the hands sufficient to establish a current disability of the bilateral hands. Arthritis is one of the enumerated diseases under 38 C.F.R. § 3.309(a). The regulation provides that where a Veteran served for at least 90 days during a period of war or after December 31, 1946, as this Veteran did, and the arthritis manifests to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1110, 1112, 1131; 38 C.F.R. §§ 3.307, 3.309. Here there is no evidence that arthritis manifested at all within one year of August 1952, the date of termination of the Veteran's service. The Veteran did not report an onset date on his original claim form, and there is no medical evidence of arthritis in the hands until January 2009. Therefore, his service connection claim for arthritis must fail on the basis of the presumptive regulations. Notwithstanding the foregoing presumption provisions, the Federal Circuit has determined that the presumptive service connection procedure does not preclude a Veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994). The Veteran's separation examination report shows normal upper extremities and no diagnoses, history, complaints, or treatment of swelling or arthritis in either hand. The earliest medical evidence of record of arthritis in the hands is dated January 2009. There is no medical evidence suggesting a nexus between the current disabilities and service. Direct service connection may not be granted without evidence of in-service incurrence or aggravation of a disease or injury. There is no evidence of in-service incurrence or aggravation and the Veteran stated only that he feels it was caused while he was on active duty. Although the Veteran is competent to provide testimony or statements relating to symptoms or facts of events that he observed and are within the realm of his personal knowledge, he is not competent to establish that which would require specialized knowledge or training. Layno v. Brown, 6 Vet. App. 465 (1994). Lay evidence may be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, the Board can only give lay evidence the weight to which it is entitled. A mere conclusory generalized lay statement that a service event or illness caused the claimant's current condition is insufficient. Waters v. Shinseki, 601 F.3d 1274 (2010). The Board finds that the question regarding the potential relationship between the Veteran's bilateral hand disability and his service to be complex in nature. Although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg, the claimant is not competent to provide evidence as to more complex medical questions. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Arthritis is diagnosed by medical tests and there is no evidence that the Veteran has the requisite medical knowledge to administer medical tests or interpret the results. Furthermore, he does not possess the medical knowledge to attribute any arthritis to any specific instance of his military service. While the Veteran is competent to describe his hand symptoms, the Board accords his statement regarding the etiology of his bilateral hand disability no probative value as he is not competent to opine on that complex medical question and has only offered conclusory statements. Therefore, the Board finds that a preponderance of the evidence is against a finding of direct service connection. The evidence of record does not show that it is at least as likely as not that the Veteran's bilateral hand disability was caused by or a result of service. As there is no probative medical evidence of record suggesting a connection between service and the Veteran's bilateral hand disability, and no evidence of any manifestations or symptoms attributable to arthritis during service or until many years after his discharge from service, the Board finds no basis to grant service connection. The Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for bilateral hand disability. Therefore, his claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. D. Swelling of Both Legs The Veteran contends that his claimed swelling of both legs is due to service. He does not provide an onset date for the swelling, stating only that he feels it was caused while he was on active duty. Therefore, he contends that service connection is warranted. A May 2008 private treatment record from Dr. Eslami states that the Veteran's "ankle edema improved significantly" after he stopped a particular prescription. VA treatment records show that in September 2008 he had trace ankle edema as a result of venesection. VA treatment records dated October 2008 and January 2009 show subjective complaints of recurrent swelling in both ankles. Reading the material sympathetically, the Board finds this evidence sufficient to establish a current disability of swelling in both lower extremities. Brokowski, supra; Ingram, supra. The Veteran's separation examination report shows normal lower extremities and no diagnoses, history, complaints, or treatment of swelling in either leg or ankle. The earliest medical evidence of record of swelling of the ankles is dated May 2008. There is no medical evidence suggesting a nexus between the current disability and service. Direct service connection may not be granted without evidence of in-service incurrence or aggravation of a disease or injury. There is no evidence of in-service incurrence or aggravation and the Veteran stated only that he feels it was caused while he was on active duty. Although the Veteran is competent to provide testimony or statements relating to symptoms or facts of events that he observed and are within the realm of his personal knowledge, he is not competent to establish that which would require specialized knowledge or training. Layno, supra. While lay evidence may be competent to establish medical etiology or nexus, the Board can only give lay evidence the weight to which it is entitled. Davidson, supra. A mere conclusory generalized lay statement that a service event or illness caused the claimant's current condition is insufficient. Waters, supra. The Board finds that the question regarding the potential relationship between the Veteran's bilateral swelling of the lower extremities and service to be complex in nature. Although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg, the claimant is not competent to provide evidence as to more complex medical questions. Woehlaert, supra. There is no evidence that the Veteran possesses the requisite medical knowledge to attribute swelling of the lower extremities to any specific instance of his military service. While the Veteran is competent to describe his lower extremity symptoms, the Board accords his statement regarding the etiology of his bilateral lower extremity swelling no probative value as he is not competent to opine on that complex medical question and has only offered conclusory statements. Therefore, the Board finds that a preponderance of the evidence is against a finding of direct service connection. The evidence of record does not show that it is at least as likely as not that the Veteran's bilateral lower extremity swelling was caused by or a result of service. As there is no probative medical evidence of record suggesting a connection between service and the Veteran's bilateral lower extremity swelling, and no evidence of any manifestations or symptoms attributable to lower extremity swelling during service or until many years after his discharge from service, the Board finds no basis to grant service connection. The Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for bilateral swelling of the lower extremities. Therefore, his claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. E. Ruptured Appendix/Appendectomy The Veteran contends that his claimed ruptured appendix/appendectomy is due to service. Specifically, in his original claim application dated in September 2008, he lists "SMR" (Service Medical Records) as the medical facility that treated him for ruptured appendix/appendectomy. Accordingly, he contends that he was treated for ruptured appendix, presumably by appendectomy, in service. The Veteran's separation examination report shows normal abdomen and viscera, and notes no scars. Nor are there diagnoses, history, complaints, or treatment referable to a ruptured appendix or appendectomy. An April 2008 private treatment record from Dr. Eslami shows that the Veteran reported a medical history of appendectomy. In a VA treatment record dated September 2008, the Veteran reported a history of appendix perforation with appendectomy. Neither of these records indicates when or where the appendix rupture/perforation or appendectomy occurred. The Veteran is competent to provide testimony or statements relating to facts of events that he observed and are within the realm of his personal knowledge, such as having had an appendectomy. Layno, supra. The evidence suggests that at some point the Veteran had an appendix rupture/perforation and it was treated with an appendectomy. However, there is no evidence of residuals of an appendectomy, such as a scar. Nor is there any evidence of any current diagnoses, complaints, treatment, or observations of any current disability relating to a past ruptured appendix/appendectomy. Most significantly, with the Veteran's service separation examination failing to show any appendectomy scar, it may be concluded that whenever the appendectomy occurred, it was not during service. This renders the greater weight of the evidence against the Veteran's claim. Service connection for ruptured appendix/appendectomy is denied. ORDER Service connection for pes planus is denied. Service connection for low back problems is denied. Service connection for swelling of both hands is denied. Service connection for swelling of both legs is denied. Service connection for ruptured appendix/appendectomy is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs