Citation Nr: 1316693 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 10-48 212 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for type II diabetes mellitus. 2. Entitlement to service connection for diabetic neuropathy of the lower extremities. 3. Entitlement to service connection for hypertension. 4. Entitlement to service connection for a bilateral hearing loss disability. 5. Entitlement to service connection for bilateral tinnitus. 6. Entitlement to service connection for a bilateral knee disability. 7. Entitlement to service connection for a stomach disorder, claimed as gastroesophageal reflux disease (GERD). 8. Entitlement to service connection for a back disability. 9. Entitlement to service connection for gout and swelling of the legs. ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty from March 1, 1977, to June 8, 1977. This case comes before the Board of Veterans' Appeals (the Board) on appeal from September 2007 and July 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which denied the Veteran's claims of service connection currently on appeal. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. The Board has reviewed the documents in both the paper claims file and the electronic claims file in rendering this decision. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran has type II diabetes mellitus related to service. 2. The preponderance of the evidence is against a finding that the Veteran has diabetic neuropathy of the lower extremities related to service. 3. The preponderance of the evidence is against a finding that the Veteran has hypertension related to service. 4. The preponderance of the evidence is against a finding that the Veteran has a hearing loss disability related to service. 5. The preponderance of the evidence is against a finding that the Veteran has tinnitus related to service. 6. The Veteran does not have a current bilateral knee disability that is related to service. 7. The preponderance of the evidence is against a finding that the Veteran has a stomach disorder, to include GERD, related to service. 8. The preponderance of the evidence is against a finding that the Veteran has a back disability related to service. 9. The Veteran does not currently have gout and swelling of the legs. CONCLUSIONS OF LAW 1. Type II diabetes mellitus was not incurred in service, and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. Diabetic neuropathy of the lower extremities was not incurred in service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.309 (2012). 3. Hypertension was not incurred in service, and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 4. A bilateral hearing loss disability was not incurred in service, and sensorineural hearing loss may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 5. Bilateral tinnitus was not incurred in service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.309 (2012). 6. A bilateral knee disability was not incurred in service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.309 (2012). 7. A stomach disorder, to include GERD, was not incurred in service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.309 (2012). 8. A back disability was not incurred in service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.309 (2012). 9. Gout and swelling of the legs were not incurred in service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In correspondence dated in April 2007 and May 2009, prior to the September 2007 and July 2009 rating decisions, respectively, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2012), known as the Veterans Claims Assistance Act of 2000 (VCAA). Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claims; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. The letters also notified the Veteran of the process by which initial disability ratings and effective dates are established as set forth in Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has done everything reasonably possible to assist the Veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012). All identified and available treatment records have been secured. The Veteran's service and post-service treatment records are in the claims folder. In an August 2010 memorandum, the RO determined that the Veteran's VA Medical Center (VAMC) records from January 1, 1977, to December 31, 1978, were unavailable for review, and found that all efforts to obtain this evidence had been exhausted and further attempts would be futile. In August 2010, the Veteran was sent a letter apprising him of this development pursuant to 38 C.F.R. § 3.159(e) (2012). He was informed that he should send the records to VA if he had them or inform VA if he knew the location of the records. If the RO did not hear from him within 10 days, the claim would be decided using the evidence of record. Given the thorough efforts put forth by the RO to obtain these records, the Board finds that additional efforts would be pointless. See Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999) (noting that VA's efforts to obtain service department records shall continue until the records are obtained or unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile). As such, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A, or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claims. Furthermore, the Veteran was provided a VA examination in connection with his claim for nonservice-connected pension. The examiner conducted an examination and determined that it was less likely as not that he was a candidate for nonservice-connected pension benefits. He was not examined in connection with his claims for service connection. As will be explained in detail below, there is no evidence showing in-service incurrence of any of the claimed disabilities or that such disabilities are etiologically related to service (or in some cases even evidence of a current disability). Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in initial service connection claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. Here, the record is missing critical evidence of an event, injury, or disease that occurred in service, McLendon element (2); and evidence that the Veteran's claimed disorders may be associated with service other than the Veteran's incompetent assertions of an etiological link to service, McLendon elements(3) and (4). Such unsupported assertions are insufficient to trigger an examination in this case. Furthermore, in some cases there is no competent evidence of a current disability or persistent or recurrent symptoms of a disability, McLendon element (1). Therefore, the duty to provide an examination under McLendon has not been triggered. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). The Veteran has declined the opportunity to present evidence and additional argument in support of his claims. Thus, the duties to notify and assist have been met. Analysis The Veteran essentially contends that he has type II diabetes mellitus, diabetic neuropathy of the lower extremities, hypertension, a bilateral hearing loss disability, bilateral tinnitus, a bilateral knee disability, a stomach disorder, a spine disability, and gout and swelling of the legs related to service. In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be granted on a presumptive basis for certain chronic diseases, including diabetes mellitus, arthritis, sensorineural hearing loss, and hypertension, if they are shown to be manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In order to show a 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2012). A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), however, 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). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The evidence does not show any diagnosis of gout or a disability manifested by swelling of the legs. Notably, the August 2007 VA examination report showed that physical evaluation of both legs was normal. Based on the Veteran's complaints of pain, the examiner provided a diagnosis of bilateral leg pain with numbness of uncertain etiology. The Board notes that pain alone, without a diagnosed or identifiable underlying malady or condition, does not constitute a disability for which service connection can be granted. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Regarding numbness, the Veteran has been diagnosed as having diabetic neuropathy. "Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability ... in the absence of a proof of present disability there can be no claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The United States Court of Appeals for Veterans Claims (Court) has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this case, there is no evidence of gout or a disability manifested by swelling of the legs present at any time during the pendency of the appeal. The Veteran has not been shown to have a current disorder for which service connection can be granted. Therefore, service connection for gout and a disability manifested by swelling of the legs is not warranted. The evidence shows that the Veteran currently has type II diabetes mellitus, diabetic neuropathy, hypertension, tinnitus, hearing loss, GERD, and a spine disability (diagnosed as thoracic kyphosis). While VA records dating from 2007 do not show that the Veteran has a disability of the knees to include on x-ray examinations, a generalized diagnosis of degenerative joint disease/osteoarthritis was included in an October 2004 VA medical record. Nevertheless, as x-rays taken of the knees in August 2007 were assessed as normal, to the extent that the 2004 medical record could be read as diagnosing arthritis of the knees, such diagnosis is not shown to be chronic. There is no indication that that any of these disabilities were present in service. Additionally, diabetes mellitus, hypertension, hearing loss and any arthritis did not manifest within a year of service discharge. Consideration on a presumptive basis for these particular disabilities is thus not warranted. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Furthermore, the first indication in the record of any of the disabilities on appeal was not until 2004, which is nearly three decades after service discharge. The lengthy period of time between service and treatment for the claimed disabilities weighs against the claims. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Service connection may be granted when the evidence establishes a medical nexus between military service and current complaints. Degmetich v. Brown, 104 F. 3d 1328 (1997); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). In this case, the fact that the first indication of any of the claimed disabilities is not until nearly three decades after service weighs against a finding that such were present in service. Due to the absence of evidence of the claimed disabilities for several decades after service, the Board finds that VA opinions are not necessary. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In the absence of evidence of in-service incurrence of a disease or injury, a medical nexus opinion would seem to be an impossibility. In any case, there is no competent, probative evidence establishing a nexus between military service and the Veteran's disabilities, service connection is not warranted. The Veteran has been accorded ample opportunity to present competent evidence in support of the claims. He has failed to do so. See 38 U.S.C.A. § 5107(a) (West 2002). The Court has held that "[t]he duty to assist is not always a one-way street. If a veteran wishes help, [s]he cannot passively wait for it in those circumstances where [s]he may or should have information that is essential in obtaining the putative evidence." See Wood v. Derwinski, 1 Vet. App. 190, 92 (1991). In making all determinations, the Board has considered the lay assertions of record. In this regard, a layperson is competent to report about his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (noting that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 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); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In this case, there is no dispute that Veteran is competent to make observation of his claimed disabilities to the extent that his symptoms come to him through his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). When 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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 at n.4 (Fed. Cir. 2007) (stating that "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."). In such cases, the Board is within its province to weigh that testimony and to make a credibility determination. To the extent that the Veteran himself contends that he has diagnosis of bilateral leg disability or gout/swelling of the legs, the Board again acknowledges that the Veteran is competent to testify as to his observations. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In the instant case, however, the Board finds more persuasive the VA medical records including the pension evaluation of the VA examiner who indicated that the legs were normal. Additionally, there is no indication that the Veteran is able to provide an etiological opinion concerning the origin of his current diabetes mellitus, diabetic neuropathy, hypertension, hearing loss, GERD, or spine disability is related to service as such questions are complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). There is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render diagnoses or medical opinions regarding the nature and etiology of those claimed disabilities. See 38 C.F.R. § 3.159(a)(1) (2012) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). In this circumstance, the Board gives more credence and weight to the medical report rendered by a licensed medical professional than to the lay assertions, and to the weight of the evidence showing a lack of treatment for any disability for many years after service. With regard to diabetes, hypertension, and bilateral hearing loss, the evidence does not show that the disabilities began in service, manifested to a compensable degree within one year of discharge from service, or that they are due to an injury or disease incurred in service. With respect to diabetes and hypertension, the Veteran reported in his claim form that the disabilities began in 2005 or 2006 and he has not explained why he feels the disabilities are related to service. Regarding hearing loss, he reported that the disability began in service, however, there is no competent evidence showing that currently manifested hearing loss is related to an injury or disease during service. The Veteran is not competent as a lay person to provide an etiological opinion for hearing loss which was manifested many years after service. With respect to tinnitus, he reported that the disability began in service, however, during a September 2004 VA audiological consultation, he reported that he had tinnitus only for several years. The Veteran was counseled to cut back on his self-described "lots and lots of coffee" or switch to decaf, as possible causes for tinnitus, according to the audiologist, were caffeine and sodium. In a September 2008 statement, the Veteran stated that he had ringing in his ears during training. He did not, however, report that the ringing continued after service and in September 2004 he reported that he had tinnitus only for several years. As the Veteran did not report that current tinnitus began in service and as the audiologist did not indicate that noise exposure or any other incident of service decades earlier caused current tinnitus, the preponderance of the evidence is against finding that current tinnitus began in or is related to service. As to the claimed stomach disorder, the Veteran has not explained why he feels that current disability manifested by stomach pains and bleeding is related to service. Similarly, there is no medical evidence indicating that he has current disability due to an injury or disease incurred in service. Likewise, he has not explained how the diabetic neuropathy and back disorder are related to service, nor is there any medical evidence indicating that the disabilities are due to an injury or disease incurred in service. Moreover, as service connection for diabetes is herein denied, it follows that service connection on a secondary basis for the diabetic neuropathy is not warranted pursuant to 38 C.F.R. § 3.310 (2012). Regarding swelling and gout of the legs, the medical records do not show that the Veteran currently has gout or a disability manifested by swelling. The Veteran as a lay person is not competent to diagnose gout and the most probative evidence as to whether he has a disability manifested by swelling is the VA medical records. Although the Veteran seeks healthcare through VA, there is no diagnosis of a disability manifested by swelling of the legs. With regard to the bilateral claimed knee disorder, there is no current diagnosis of arthritis or any diagnosis with respect to a ligamentous deficiency of the knees. While the Veteran may have been diagnosed with arthritis on one occasion in 2004, the medical records dated thereafter do not show that he has arthritis or any other disability of the knees. In particular, x-rays dated in 2007 show that he does not have arthritis or any other bony abnormality of the knees. The Veteran as a lay person is not competent to diagnose arthritis or a ligamentous abnormality as such determinations require medical expertise. While he reported that his ligaments were torn up, he has not associated such with an injury or disease in service nor does the medical evidence indicate such a relationship. In sum, the Board finds that the preponderance of the evidence is against the Veteran's claims, and that the claims must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED ON NEXT PAGE) ORDER Service connection for type II diabetes mellitus is denied. Service connection for diabetic neuropathy of the lower extremities is denied. Service connection for hypertension is denied. Service connection for a bilateral hearing loss disability is denied. Service connection for bilateral tinnitus is denied. Service connection for a bilateral knee disability is denied. Service connection for a stomach disorder, including GERD, is denied. Service connection for a spine disability is denied. Service connection for gout and swelling of the legs is denied. ____________________________________________ S.S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs