Citation Nr: 1315256 Decision Date: 05/08/13 Archive Date: 05/15/13 DOCKET NO. 09-48 154 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to service connection for a disability manifested by joint pain, aching, and swelling of the feet, to include as due to a qualifying chronic disability. WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD C.L. Krasinski, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from July 1989 to December 1989, and from November 1990 to May 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. In April 2009, the RO reopened service connection for arthritis and denied the claim on the merits. In January 2010, the Veteran testified at a local hearing before a Decision Review Officer (DRO). A copy of the transcript is of record. In a November 2012 decision, the Board reopened service connection for arthritis of the feet and remanded this issue to the RO to afford the Veteran a VA examination to obtain medical evidence as to the nature and etiology of the claimed foot disability. See 38 C.F.R. § 3.159(c)(4) (2012). The Veteran was notified and was scheduled for a January 2013 VA examination. He failed to report to this examination. A January 2013 letter from the AMC had notified the Veteran of the consequences of a failure to report to an examination without good cause. In the February 2013 supplemental statement of the case, the AMC informed the Veteran that he failed to report to his scheduled examination and again notified the Veteran of the consequences of a failure to report to an examination. To date, the Veteran has not shown good cause for his failure to report to the scheduled VA examination. Based on the foregoing, the Board finds that the agency of original jurisdiction substantially complied with the mandates of the November 2012 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (finding that a remand by the Board confers on the appellant the right to compliance with the remand orders). In light of the Veteran's failure to cooperate, the Board finds that no further action is necessary to meet the requirements of the VCAA. See 38 C.F.R. § 3.655 (2012); see also Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); Olson v. Principi, 3 Vet. App. 480, 483 (1992) (holding that the duty to assist is not always a one-way street, or a blind alley, and that the veteran must be prepared to cooperate with the VA's efforts to provide an adequate medical examination and submit all the medical evidence supporting his claim). Therefore, the Board will proceed to review and decide the claim based on the evidence that is of record. The Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the Veteran's file on the "Virtual VA" system to ensure a complete assessment of the evidence. FINDINGS OF FACT 1. The Veteran served in the Southwest Asia theater of operations, to include Saudi Arabia and Kuwait, during the Persian Gulf War. 2. The Veteran engaged in combat during the Persian Gulf War. 3. The Veteran does not have a current diagnosed bilateral foot disability or arthritis of the feet. 4. The Veteran does not currently have objective symptoms of pain, aching, or swelling in the feet, and examination of the feet is normal. 5. A qualifying chronic disability manifested by pain, aching, and swelling in the feet did not manifest during service in Southwest Asia or to a compensable degree for any six-month period since service. CONCLUSION OF LAW The criteria for service connection for a bilateral foot disability manifested by pain, aching, and swelling, to include arthritis and as due to a qualifying chronic disability, have not been met. 38 U.S.C.A. §§ 1110, 1117, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.317 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The Board finds that the VCAA notice requirements have been satisfied by June 2008, November 2008, January 2010, and January 2013 letters. In these letters, VA informed the Veteran of the evidence and information needed to substantiate a claim for service connection and informed the Veteran of which information and evidence he was to provide to VA and which information and evidence VA would attempt to obtain on his behalf. VA informed the Veteran it had to obtain any records held by any federal agency. These letters also informed the Veteran that on his behalf VA would make reasonable efforts to obtain records that were not held by a federal agency, such as records from private doctors and hospitals. Finally, the letter told the Veteran that he could obtain private records himself and submit them to VA. The VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection was awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the June 2008, November 2008, and January 2010 letters explained the type of evidence necessary to establish service connection and the type of evidence necessary to establish a disability rating and effective date for the claims on appeal. Regarding the duty to assist, VA must make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the claim on appeal, the evidence of record includes the Veteran's service treatment records, VA outpatient treatment records, private treatment records, January 2010 DRO hearing transcript, and VA examination reports dated September 1993, December 2008, and March 2010. In a November 2012 decision, the Board reopened service connection for arthritis of the feet and remanded this issue to the RO to afford the Veteran a VA examination to obtain medical evidence as to the nature and etiology of the claimed foot disability. See 38 C.F.R. § 3.159(c)(4). The Veteran was notified and was scheduled for a January 2013 VA examination. He failed to report to this examination. A January 2013 letter from the AMC had notified the Veteran of the consequences of a failure to report to an examination without good cause. In the February 2013 supplemental statement of the case, the AMC informed the Veteran that he failed to report to his scheduled examination and again notified the Veteran of the consequences of a failure to report to an examination. To date, the Veteran has not shown good cause for his failure to report to the scheduled VA examination. The duty to assist is not a one-way street. See Wood, 1 Vet. App. at 193. Under VA regulations, it is incumbent upon a veteran to submit to a VA examination if a veteran is applying for, or in receipt of, VA compensation or pension benefits. See Dusek v. Derwinski, 2 Vet. App. 519 (1992). Individuals for whom examinations have been authorized and scheduled are required to report for such examinations. 38 C.F.R. § 3.326(a) (2012). By the Veteran's failure to report for the scheduled examination, he has not satisfied his responsibilities in the development of his claim, and has precluded the creation of potentially favorable evidence of current disability and relationship to service. In the January 2013 letter, VA informed the Veteran that a failure to appear and participate in any scheduled VA examinations may result in denial of the claim. In light of the foregoing, the Board finds that VA has developed all relevant facts to the extent possible, and that no further assistance to the Veteran in developing the facts pertinent to the duty to assist is required. It is acknowledged that the Veteran reported in a December 2008 statement that, in reference to his prior service connection claim for malignant invasive thymoma (cancer), he is currently completely disabled by the Social Security Department due to "this nonservice-connected disability." The March 2010 VA examination report also noted the Veteran "is on Social Security Disability Income and a Veterans Administration pension for this [thymic cancer]." The Veteran's Social Security records do not need to be obtained in this case because the Veteran's December 2008 statement and the March 2010 VA examination report indicate the benefits received from the Social Security Administration are not related to the current claims on appeal, but relate to the service-connected thymic cancer. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (holding that SSA records need not be obtained if they are not relevant or potentially relevant to a claim). For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim on appeal. The evidence of record provides sufficient information to adequately evaluate the claim, all obtainable evidence identified by the Veteran relative to the claim has been obtained and associated with the claims file, and the Board is not aware of the existence of any additional relevant evidence which was not obtained. Therefore, no further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Service Connection Laws and Regulations 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. Service connection may also be granted for a disease first 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). Service connection requires competent evidence showing, (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). In this case, arthritis is listed among the "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. In the case of any veteran who engaged in combat with the enemy in active service and during a period of war, VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304 (2012). Section 1154(b), however, can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to the current disorder. See Libertine v. Brown, 9 Vet. App. 521, 522-23 (1996). Section 1154(b) does not establish service connection for a combat veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service. A veteran must still establish his claim by competent medical evidence tending to show a current disability and a nexus between that disability and those service events. See Gregory v. Brown, 8 Vet. App. 563, 567 (1996); see also Kessel v. West, 13 Vet. App. 9, 17-19 (1999). The specific dates encompassing the "periods of war" are set by statute, to include the Persian Gulf War beginning on August 2, 1990, and ending on the date thereafter prescribed by Presidential proclamation or by law. 38 U.S.C.A. § 101(33) (West 2002); 38 C.F.R. § 3.3(i) (2012). Service connection may also be granted on a presumptive basis for a Persian Gulf Veteran who exhibits objective indications of qualifying chronic disability, including resulting from undiagnosed illness, that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 21, 2016, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(1). In claims based on qualifying chronic disability, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Notably, laypersons are competent to report objective signs of illness. A "qualifying chronic disability" for VA purposes is a chronic disability resulting from (A) an undiagnosed illness, (B) a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome (CFS), fibromyalgia, or irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or (C) any diagnosed illness that the Secretary determines in regulation prescribed under 38 U.S.C.A. § 1117(d) warrants a presumption of service connection. 38 U.S.C.A. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i)(B). "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to a physician, and other, non-medical indicators that are capable of independent verification. To fulfill the requirement of chronicity, the illness must have persisted for a period of six months. 38 C.F.R. § 3.317(a)(2), (3). Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; and (12) abnormal weight loss. 38 C.F.R. § 3.317(b). Effective July 13, 2010, VA has amended its adjudication regulations governing presumptions for certain Persian Gulf War Veterans. Such revisions amend 38 C.F.R. § 3.317(a)(2)(i)(B) to clarify that CFS, fibromyalgia, and irritable bowel syndrome are examples of medically unexplained chronic multisymptom illnesses and are not an exclusive list of such illnesses. Additionally, the amendment removes 38 C.F.R. § 3.317(a)(2)(i)(B)(4) which reserves to the Secretary the authority to determine whether additional illnesses are "medically unexplained chronic multisymptom illnesses" as defined in subsection 38 C.F.R. § 3.317(a)(2)(ii) so that VA adjudicators will have the authority to determine on a case-by-case basis whether additional diseases meet the criteria of 38 C.F.R. § 3.317(a)(2)(ii). These amendments are applicable to claims pending before VA on October 17, 2010, as well as claims filed with or remanded to VA after that date. See 75 Fed. Reg. 61,997 (October 7, 2010). Compensation under 38 U.S.C.A. § 1117 shall not be paid if there is affirmative evidence that: (1) an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; (2) an undiagnosed illness was caused by a supervening condition or event that occurred between the Veteran's most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or (3) the illness is the result of the Veteran's own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(c). The term "Persian Gulf Veteran" means a veteran who served on active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317(e)(1). The "Southwest Asia theater of operations" refers to Iraq, Kuwait, Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317(e)(2). The Board must analyze the credibility and probative value of the evidence, account for the persuasiveness of the evidence, and provide reasons for rejecting any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both 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"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence; therefore, the veteran prevails in his claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against a veteran's claim that the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis of Service Connection A. Status as a Persian Gulf Veteran Based upon a review of service records, the Board finds that the Veteran is a Persian Gulf Veteran. The Veteran's DD Form 214 reflects he served in the Southwest Asia theater of operations from December 1990 to April 1991. An April 1991 VA outpatient treatment record specified the Veteran was assigned ashore in Saudi Arabia from December 1990 to February 1991 and from March 1991 to April 1991, and in Kuwait from February 1991 to March 1991. During the assignment, the Veteran was exposed to sand inhalation and smoke from the burning oil wells in the Greater Burgan Oil Field in Kuwait. Based on the threat of possible chemical/biological attack, he was also required to take NAP (Pyridostigmine Bromide 30mg) pills for a total of one week in combination with Ciprofloxacin. B. Combat Status The evidence establishes that the Veteran engaged in combat with the enemy in active service. Service records show receipt of the Combat Action Badge (CAB) and active service in the Southwest Asia theater of operations during the Persian Gulf War from December 1990 to April 1991. The Board will resolve all reasonable doubt in favor of the Veteran to find that the in-service occurrences reported by the Veteran that are consistent with the circumstances, conditions, or hardships of such service actually occurred. See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). For direct service connection for a diagnosed disability, the evidence as to each claimed disorder must still show a current disability and a nexus between that disability and those service events. See Gregory, 8 Vet. App. at 567; see also Kessel, 13 Vet. App. at 17-19. C. Service Connection for a Disability of the Feet The Veteran contends that since serving in the Gulf War, he has had aches and pains and arthralgia in various joints including his feet. In a March 1993 Application for Compensation and/or Pension, via a VA Form 21-526, the Veteran's request for service connection noted "all joints ache mostly both hands and feet." At a September 1993 VA examination, he explained that, while in Desert Storm, he lost his sleeping bag and slept without it at night, was exposed to cold weather, and noticed swelling of his feet since that time. At the January 2010 DRO hearing, the Veteran testified that he believed that his arthritis was due to exposure to the cold temperatures at night in the desert. In a January 2010 statement, the Veteran explained that he submitted additional evidence that shows how his health condition, to include arthritis (pain and stiffness of joints) is related to his service in Southwest Asia (Persian Gulf War). At the DRO hearing, the Veteran further asserted that his claims for arthritis/joint pain are due to environmental exposures while serving in Southwest Asia. The Board notes that during this pendency of this appeal, in a November 2012 Board decision, the Board granted service connection for arthritis of the knees and arthritis of the hands as due to a qualifying chronic disability. A December 2012 rating decision implemented the Board decision and assigned 10 percent ratings to the left knee arthritis, right knee arthritis, joint pain in the right hand, and joint pain in the left hand, effective from November 24, 2008. The Board finds the weight of the competent and credible evidence shows that the Veteran does not have a current diagnosed disability of the feet or arthritis of the feet. The Veteran has provided lay evidence of symptoms of pain, aches, and swelling in his feet since service in the Gulf War. The Board notes that the Veteran is competent to report observable symptoms such as aches and pains; however, the Veteran is not competent to render a clinical diagnosis of a specific type of disease process such as arthritis without the requisite medical training and expertise. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Rendering a diagnosis of arthritis falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) ("Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer."). VA regulations require a diagnosis of arthritis by a diagnostic test, specifically x-ray examination. See 38 C.F.R. § 4.71a, Diagnostic Code 5003 (which requires degenerative arthritis to be established by x-ray examination). The medical evidence does not establish a diagnosis of arthritis of the feet or other clinical diagnosis pertinent to the feet. Service treatment records indicate that on enlistment examination in October 1988, examination of the feet was normal. A November 1989 release from active duty examination report indicates that examination of the feet was normal. An April 1991 service treatment record notes that the Veteran had no defects of the feet on separation. The Veteran was afforded a VA examination in September 1993. It was noted that the Veteran reported having various joint aches but he did not consistently refer to one joint or another. He reported that, while in Desert Storm, he lost his sleeping bag and slept without it at night, was exposed to cold weather, and noticed swelling of his feet since that time. Physical examination of the extremities was normal. X-ray examination of the feet was not conducted. The Veteran was afforded a VA Gulf War examination in March 2010. The Veteran reported having arthritis, joint pain, muscle symptoms, and arthralgia. He specifically referred to the back, knees, and fingers. Notably, he did not report any symptoms in the feet. He also reported having generalized myalgias. The report indicates that the Veteran's back, knees, and hands were examined and the findings were reported in detail. The examiner noted that the remainder of the musculoskeletal examination was symmetric and there were firm muscles with full range of motion. Physical examination revealed that there was no joint swelling, effusion, muscle spasm, atrophy, or laxity. Gait and posture was normal. Muscle strength was 5/5. There were some findings of diffuse tenderness. There was no diagnosis pertinent to the feet. Objective indications of joint pain or aches in the feet were not noted. Private medical evidence submitted by the Veteran shows that examination of the musculoskeletal system was normal. Treatment records from Dr. P.S., Internal Medicine, indicate that in July 2006, March 2007, April 2007, and February 2008, examination of the musculoskeletal system revealed full range of motion, no objective deformities, and normal tone. A February 2008 record from C.M. indicates that examination of the extremities revealed no edema or erythema. There was normal gait and strength. The extremities were nontender. A March 2008 record from the Veteran's oncologist indicates that examination of the extremities revealed no edema. Muscle strength was 5/5. An August 2007 VA treatment record indicates that examination of the musculoskeletal system was negative. The weight of the competent evidence shows that the Veteran does not have a identifiable disability of the feet, and examination of the feet was negative. The medical evidence of record does not establish a diagnosis of arthritis of the feet and there are no x-ray examination findings of arthritis of the feet. The Court has held that Congress 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, 3 Vet. App. at 225. Without competent evidence of a diagnosed disability, service connection for the disorder cannot be awarded. See Brammer; supra; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004) (holding that service connection requires a showing of current disability); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (holding that a grant of service connection requires that there be a showing of disability at the time of the claim, as opposed to sometime in the distant past). Accordingly, on this record, the evidence is found to preponderate against the claim that the Veteran has a disability of the feet to include arthritis that was incurred in service. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. The claim for service connection for a bilateral foot disability on a direct basis is denied. Next, the Board finds the weight of the competent and credible evidence is against a finding that the Veteran has a qualifying chronic disability manifested to a compensable degree for any six-month period since service. Service connection may be granted on a presumptive basis for a Persian Gulf Veteran who exhibits objective indications of qualifying chronic disability, including resulting from undiagnosed illness, that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 21, 2016, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(1). "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to a physician, and other, non-medical indicators that are capable of independent verification. To fulfill the requirement of chronicity, the illness must have persisted for a period of six months. 38 C.F.R. § 3.317(a)(2), (3). In this case, the weight of the competent and credible evidence establishes that the Veteran does not have objective indications of a chronic disability manifested to a compensable degree for any six-month period since service. The Board recognizes that the Veteran's combat status during the Persian Gulf War provides a factual basis upon which to determine that the Veteran's reported complaints of joint pain of the feet during service. See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). However, the evidence of record does not document findings of objective indications of a qualifying chronic disability manifested to a compensable degree for any six-month period since service. Degenerative arthritis established by x-ray findings is rated according to limitation of motion for the joint or joints involved. Where limitation of motion is noncompensable, a rating of 10 percent is assigned for each major joint or group of minor joints affected by limitation of motion to be combined not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion a 10 percent rating is assigned where there is x-ray evidence of involvement of two or more major joints, or two or more minor joint groups; and a 20 percent evaluation is assigned where there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012). Multiple involvements of the interphalangeal, metatarsal, and tarsal joints of the lower extremities are considered a group of minor joints. 38 C.F.R. § 4.45(f) (2012). Under Diagnostic Code 5003, when the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate Diagnostic Codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined and not added, under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40 (2012). Weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability. 38 C.F.R. § 4.45 (2012) The rating schedule does not provide a diagnostic code for rating limitation of motion of the feet. However, under Diagnostic Code 5284, disabilities from other foot injuries are rated 10 percent when moderate, 20 percent when moderately severe, and 30 percent when severe. 38 C.F.R. § 4.71a, Diagnostic Code 5284 (2012). With actual loss of use of the foot, a 40 percent rating is assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5167 (2012). In this case, the weight of the competent and credible evidence establishes that the Veteran does not have objective indications of a chronic disability manifested to a compensable degree for any six-month period since service. The weight of the competent evidence shows that the Veteran does not have any findings of limitation of motion objectively confirmed or objective findings of swelling, muscle spasm, or satisfactory evidence of painful motion of the feet. At the September 1993 VA examination, the Veteran reported having aches and problems with his joints but he did not specifically identify these symptoms in his feet. The VA examination reports note that the Veteran identified having these symptoms in his hands and knees. The examiner noted that the Veteran did not consistently refer to one joint or another. At the VA examination in September 1993, the Veteran reported that while in Desert Storm he lost his sleeping bag and slept without it at night, was exposed to cold weather, and noticed swelling of his feet since that time. Physical examination of the extremities was normal. The diagnosis was normal physical examination. The Veteran underwent examination in the arthritis clinic and the diagnosis was history of arthralgia in the hands and knees without any significant physical findings and probable Reynaud's disease. There were no findings pertinent to the feet. The Veteran reported having arthritis, joint pain, muscle symptoms, and arthralgia at the VA Gulf War examination in March 2010. He specifically referred to the back, knees, and fingers and he did not refer to the feet. He did not describe or report any symptoms in his feet. Musculoskeletal examination revealed that there was no joint swelling, effusion, muscle spasm, atrophy, or laxity. Gait and posture was normal. Muscle strength was 5/5. There were some findings of diffuse tenderness. There was no diagnosis pertinent to the feet. Objective indications of limited motion, painful motion, or swelling in the feet were not noted. The Board finds the weight of the evidence demonstrates that the Veteran did not sustain an injury, disease, or event involving the feet, did not experience symptoms of a bilateral foot disorder during active service, and the Veteran has not exhibited objective indications of a qualifying chronic disability manifested to a compensable degree for any six-month period since service. While pursuing VA disability compensation, the Veteran reported symptoms of pain and aches in the feet on one occasion after service in March 1993. In the March 1993 Application for Compensation and/or Pension Benefits, the Veteran's request for service connection claimed "all joints ache mostly both hands and feet." The Veteran also informed the September 1993 VA examiner that while in Desert Storm he was exposed to cold weather at night and noticed swelling of his feet since that time; however, he did not mention these symptoms again, including did not mention these symptoms at the VA examination in March 2010. Physical examination of the extremities was normal in 1993 and in 2010. The weight of the competent evidence shows no objective indications of a qualifying chronic disability manifested to a compensable degree for any six-month period since service. A qualifying chronic disability of the feet did not manifest during service in Southwest Asia or to a compensable degree for any six-month period since service. Thus, the theory of presumptive service connection for a disability manifested by foot pain, aching, and swelling as due to a qualifying chronic disability, is not warranted. The weight of the evidence is against service connection for a presumptive qualifying chronic disability manifested to a compensable degree for any six-month period since service. See 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. For the reasons and bases discussed above and after a review of all the evidence, both lay and medical, the Board finds that a preponderance of the evidence is against the claim for service connection for a foot disability manifested by foot pain, aches, and swelling to include arthritis as directly incurred in service and as presumptively due to a qualifying chronic disability; therefore, this claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for a bilateral foot disability manifested by foot pain, aching, or swelling to include arthritis, including as due to a qualifying chronic disability, is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs