Citation Nr: 1318043 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 09-28 210 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for a cervical spine disability, to include strain. 2. Entitlement to service connection for a left ankle disability. 3. Entitlement to service connection for bilateral pes planus. 4. Entitlement to service connection for tinnitus. 5. Entitlement to service connection for asthma. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers ATTORNEY FOR THE BOARD Cheryl E. Handy, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from February 2001 to May 2001 and from March 2004 to March 2008, including service in Southwest Asia. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in May 2008 of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. These claims are now in the jurisdiction of the Newark, New Jersey RO. The Veteran had requested the opportunity to appear at a Video Conference hearing and offer testimony in support of his claim. A hearing was scheduled in May 2012 and he was duly notified of the date and time. He did not appear for the scheduled hearing and good cause for his absence has not been provided. Therefore, the Board deems his request for a hearing to be waived. This case was previously before the Board in September 2012, when it was remanded for further development, to include provision of VCAA notice and additional VA examinations. The notice was duly provided, but the Veteran did not appear for the scheduled examinations. As the Board deems that a good faith effort was made to complete the requested development, no further action to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. Although there is evidence of a cervical strain during active duty service, there is no evidence of a current cervical spine disability during the appeals period; there is also no showing of arthritis, and no competent medical opinion of etiology is of record. 2. Although there is evidence of a left ankle sprain during active duty service, there is no evidence of a current left ankle disability during the appeals period; there is also no showing of arthritis, and no competent medical opinion of etiology is of record. 3. The Veteran's bilateral pes planus pre-existed his military service; the evidence fails to show that it was permanently worsened as a result of his active duty service. 4. Although there is evidence of tinnitus during active duty service, there is no evidence of current tinnitus disability during the appeals period. 5. There is no evidence of current asthma during the appeals period and there is no competent medical opinion of etiology of record; asthma is not a chronic disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a cervical spine disability, to include strain, have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). 2. The criteria for service connection for a left ankle disability have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). 3. The criteria for service connection for bilateral pes planus have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2012). 4. The criteria for service connection for tinnitus have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). 5. The criteria for service connection for asthma have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Duty to Notify Proper notice from VA must inform the claimant of any information and medical or lay 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 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent letters in January 2008 and October 2012 that provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal. The letters also explained what type of information and evidence was needed to establish a disability rating and effective date. The Board acknowledges that, in the present case, complete notice was not issued prior to the adverse determination on appeal. However, fully compliant notice was later issued in the October 2012 communication, and the claim was thereafter readjudicated in April 2013. Accordingly, any timing deficiency has here been appropriately cured and no further development is required with respect to the duty to notify. Mayfield, 444 F.3d 1328 (Fed. Cir. 2006). Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran was afforded a VA examination in March 2008 with respect to all of the disabilities claimed at that time, with the exception of tinnitus for which an examination was scheduled, but the Veteran did not attend. Unfortunately, the VA examination report was not sufficiently specific to enable the Board to render an informed decision on the disabilities on appeal. As a result, the matter was remanded to provide for additional VA examinations necessary to decide these claims. As discussed above, the Veteran was scheduled for examination on two separate occasions. In November 2012, he did not attend the scheduled examinations, but provided a statement regarding good cause for his absence, namely work responsibilities out of the area. The RO duly rescheduled the examinations for a time frame identified by the Veteran as suitable, that is, after January 2013. The examinations were scheduled for March 2013 and proper advance notice of the date and time for the examinations was sent to the Veteran's address of record. He did not appear for the scheduled examinations nor did he provide information as to good cause - or, indeed, any cause - for his absence. While the Board has considered remanding these claims to provide another opportunity for an examination, the Veteran's history of failing to appear as scheduled - to include for the tinnitus examination in March 2008 and for the Videoconference hearing in May 2012 - indicates that the action would likely be futile. In this regard, VA's duty to assist in developing the pertinent facts and evidence in connection with a claim is not a one-way street, and the Veteran has a responsibility to cooperate in such development. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board also notes that the Veteran was advised in a letter sent in February 2013 of his responsibility to report for the rescheduled examinations and was put on notice that failure to report without providing good cause would result in a decision on the evidence of record or even a possible denial of his claims. See 38 C.F.R. §§ 3.326(a), 3.655. As a result, the Board finds that the claim should be decided on the evidence of record and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). Further regarding the duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file. These files together comprise the claims file. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims. In compliance with the Board's September 2012 remand, the Veteran was provided with proper VCAA notice in relation to his tinnitus and cervical disability claims. VA also made efforts to provide the Veteran with a medical examination in November 2012 and again in March 2013. As discussed above, the Veteran did not appear for these examinations and the claim will therefore be decided based on the evidence of record. Thus, there was substantial compliance with the September 2012 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Principles of Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110. Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). All three elements must be established by competent and credible evidence in order that service connection may be granted. In this case, several legal theories operate in conjunction with 38 U.S.C.A. §§ 1110 and 1131 as implemented in 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In a service connection claim, the threshold question is whether or not the Veteran actually has the disability for which service connection is sought. In the absence of proof of present disability, there can be no valid claim of service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement of a current disability may be met by evidence of symptomatology at the time of filing or at any point during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 323 (2007). It is the Veteran's general evidentiary burden to establish all elements of the claim, including evidence of a current disability. 38 U.S.C.A. § 5107(a); Fagan v. Shinseki, 573 F.3d. 1282, 1286 (Fed. Cir. 2009). Evidentiary Standards VA must give due consideration to all pertinent medical and lay evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is 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); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A Veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding that, 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). The Board, as fact finder, must determine the probative value or weight of the admissible evidence. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed. Cir. 2000) ("Fact-finding in veterans cases is to be done by the Board")). When there is an approximate balance of positive and negative admissible evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Facts Service treatment records include an initial enlistment examination in January 2001 showing mild asymptomatic pes planus. At the time of his second pre-screening examination in October 2003, the examiner indicated a normal arch in his feet. In March 2004 the Veteran was seen for complaints of bilateral foot pain in his arches. The provider noted that he had flat feet and needed inserts for his shoes. In June 2004 the Veteran was seen for complaints regarding a pulled left hamstring muscle. He reported experiencing sharp pain that radiated from his thigh into his left foot. The provider noted an antalgic gait and tenderness to palpation and diagnosed a hamstring strain. In December 2004, the Veteran was seen for a left ankle injury sustained during physical training. He was limping slightly and there was minor swelling and loss of motion. He was given a temporary profile. The Veteran was seen in January and February 2005 for complaints of continued ankle pain with running and certain movements. A January 2005 X-ray showed no evidence of fracture, but there was mild soft tissue swelling of the distal fibula. A repeat X-ray in February showed no evidence of arthritic or inflammatory changes and no evidence of narrowing or effusion. His profile continued through July 2005. A chest X-ray in September 2005 after a diagnosis of hypertension showed no active cardiopulmonary disease and no pleural effusion, focal infiltrate, or airspace consolidation in the lungs. The Veteran's post-deployment health assessment in September 2006 noted that during his deployment he was sometimes exposed to smoke from burning trash or feces, often exposed to vehicle exhaust fumes and JP8 or other fuels, sometimes exposed to sand or dust, and often exposed to loud noises, excessive vibration, and industrial pollution. On the Veteran's January 2007 post-deployment health assessment, he reported having swollen, stiff, or painful joints, to include a right wrist inquiry in Iraq. An April 2007 X-ray record indicated complaints of increased pain with weight bearing in his right ankle. He reported 8/10 pain when walking and though he might have suffered an inversion injury, but gave no real history of trauma. The right ankle X-ray was read as normal, but the radiologist did note evidence of pes planus. The provider diagnosed a 1st degree ankle sprain, although he listed it as the left ankle despite the remainder of the record which showed right ankle pain. On his December 2007 post-deployment health questionnaire, the Veteran indicated that he had concerns about his exposure to vehicle or truck exhaust fumes, JP8 or other fuels, loud noises, and sand or dust. He also had experienced ringing in his ears. At the time of his service separation examination in January 2008, the Veteran reported a history of a left ankle sprain in March 2005, with recurrent snapping on certain motions. He also gave a history of some hearing loss over the past year and of exposure to fumes. In January 2008, the Veteran's private chiropractor provided records of treatment of his cervical and lumbar pain. In December 2004 he was treated for low back pain and stiffness along the cervical spine and upper trapezius muscles. In August 2005, July 2006, December 2006, January 2007, and July 2007, the Veteran was treated for cervical pain and for occasional bilateral ankle pain and stiffness. Findings included restricted motion in his neck and his ankles and he was advised to stretch and exercise. On February 2008 VA examination, the Veteran reported hurting his upper back lifting cargo in 2002 and experiencing increased pain while in Iraq in 2005. It had never caused an incapacitating episode and was more of a dull ache and a muscle pain when he did heavy lifting or pushing. He had full range of motion in his neck without pain and repetitive motion did not result in increased pain or limitation of motion. The examiner noted a diagnosis of thoracic spine strain, with no discussion of whether that was based on the Veteran's history or evidence of a current disability and no discussion of etiology or current severity. The examiner also evaluated the bilateral pes planus, which had been present since birth. The Veteran reported he had never had pain in his foot, had never been given orthotic inserts or special shoes and was not limited in standing or running. He had no complaints related to his feet. The examiner noted a diagnosis of bilateral pes planus, asymptomatic, with no discussion regarding etiology or aggravation. The VA examiner also evaluated the Veteran's left ankle, noting the history of a sprain in about January 2005 which placed him on limited duty for about three months with a soft cast. Since that time, he had not required any assistive devices or braces and he denied experiencing any flare-ups. He had full range of motion in the left ankle with no pain or evidence of instability. There was no swelling or redness or laxity in the ankle and repetitive motion did not result in fatigue, pain, or other symptoms. The examiner noted a diagnosis of left ankle strain, with no discussion of whether that was based on the Veteran's history or evidence of a current disability and no discussion of etiology or current severity. The February 2008 VA examination also included an evaluation of the Veteran's complaints of shortness of breath secondary to PDL fumes and exhaust. He reported that he could only run one mile. He had asthma prior to service but had not required medication or treatment since before 2001. He had not had pneumonia, productive cough, wheezing, or any other pulmonary symptoms since his entrance into the military but stated he had sometimes felt short of breath since his exposure to PDL. On examination, his lungs were clear to auscultation and percussion and his nose throat and mouth appeared normal. The examiner noted a diagnosis of asthma, with no discussion of whether that was based on the Veteran's history or evidence of a current disability and no discussion of etiology or aggravation or current severity. Analysis Cervical strain The Veteran seeks service connection for a cervical strain and there is evidence that he was treated for a cervical strain in service. However, an award of service connection requires that there be evidence of a current disability during the appeals period. 38 C.F.R. §§ 3.303, 3.304. In this instance, there is no evidence of an ongoing or current disability involving the Veteran's cervical spine or neck. At the March 2008 VA examination, he gave a history of his pain in service, he made no express complaints referable to the neck at that time. Moreover, he had a full range of motion on examination, with no other abnormal findings shown. The VA examiner did not provide a diagnosis of any cervical strain or other neck disability. It is the Veteran's general evidentiary burden to establish all elements of the claim, including evidence of a current disability. 38 U.S.C.A. § 5107(a); Fagan v. Shinseki, 573 F.3d. 1282, 1286 (Fed. Cir. 2009). Here, he has not provided any medical evidence showing treatment or diagnosis of a cervical disability since separation. Nor has he provided any lay statements regarding symptomatology or any functional limitations. Without evidence of a current disability, the claim must fail. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In reaching the above conclusion, the Board notes that even if the record could be favorably construed as showing current disability, the claim must still fail. Indeed, recent case law precludes establishing service connection solely based on continuity of symptomatology (i.e., where no competent medical nexus opinion favors the claim), except for chronic diseases as defined under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). While arthritis is a chronic disease, no arthritis is shown in the record. Thus, even with evidence of in-service treatment and current disability, the claim would fail due to the absence of a medical nexus opinion linking the two. Here, the Veteran has failed on numerous occasions to report for examination scheduled for the purpose of determining the etiology of any neck disability present. In sum, even if VA were to concede current disability, the claim must still fail. Left ankle The Veteran also seeks service connection for a left ankle disability and the record shows that he sustained a sprained left ankle in service. He was treated for ankle pain from December 2004 through at least March 2005, but there is no evidence of continuing disability after that point. All indications suggest the injury was acute and transitory and resolved before service separation some three years later. While the Veteran did provide a history of the injury in service at his March 2008 VA examination, there was no demonstration of current pathology of the left ankle. He had full range of motion with no pain, instability, swelling, or redness. While the examiner did note a diagnosis of left ankle strain, he did not indicate whether that was based on the Veteran's history or current symptoms. However, inasmuch no current pathology was shown at the time of the examination, the Board must conclude that the diagnosis was based on history alone. It is the Veteran's general evidentiary burden to establish all elements of the claim, including evidence of a current disability. 38 U.S.C.A. § 5107(a); Fagan v. Shinseki, 573 F.3d. 1282, 1286 (Fed. Cir. 2009). In this instance, the Veteran has not provided any medical evidence showing treatment or diagnosis of any left ankle disability since separation. Nor has he provided any lay statements regarding symptomatology or any functional limitations. Without any evidence of a current disability, the claim must fail. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In reaching the above conclusion, the Board notes that even if the record could be favorably construed as showing current disability, the claim must still fail. Indeed, recent case law precludes establishing service connection solely based on continuity of symptomatology (i.e., where no competent medical nexus opinion favors the claim), except for chronic diseases as defined under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). While arthritis is a chronic disease, no arthritis is shown in the record. Thus, even with evidence of in-service treatment and current disability, the claim would fail due to the absence of a medical nexus opinion linking the two. Here, the Veteran has failed on numerous occasions to report for examination scheduled for the purpose of determining the etiology of any left ankle disability present. In sum, even if VA were to concede current disability, the claim must still fail. Bilateral pes planus The Veteran also seeks service connection for bilateral pes planus. In this instance, the Board notes that there is evidence that the disability pre-existed service. Under the law, a Veteran is presumed to be in sound condition when he entered into military service except for conditions noted on the entrance examination or where the evidence demonstrates that the condition pre-existed military service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304. A preexisting injury or disease will be considered to have been aggravated by active service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the condition. Clear and unmistakable (obvious and manifest) evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. Aggravation may not be conceded where the disability underwent no increase in severity during service, on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. "Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered 'aggravation in service' unless the underlying condition, as contrasted to symptoms, is worsened." See Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The service treatment records show that in 2001 on entrance examination the Veteran had asymptomatic bilateral flat feet or pes planus. Service treatment records show that the Veteran was treated in service on two occasions for foot pain and that orthotic inserts were necessary. On VA examination in March 2008, the Veteran denied ever having worn orthotics or experienced foot pain. The examiner diagnosed bilateral pes planus, asymptomatic. The Board notes that the October 2003 entrance examination recorded normal arches on the Veteran's feet, which arguably weighs against a finding of pre-existing pes planus, at least as to the second period of service. However, the March 2008 VA examiner noted that the Veteran had pes planus, a condition that had existed since birth. In addition, the condition was shown on the 2001 entrance examination and was described in the same terms as those of the March 2008 VA examination. The Board therefore finds that there is sufficient evidence to conclude that pes planus pre-existed all periods of service. As the condition pre-existed service, the question before the Board is whether the Veteran's pes planus was worsened by his military service. As noted, in 2001 the entrance examination described mild asymptomatic pes planus. Although the Veteran was treated in service for foot pain and requested orthotics, he denied any such treatment or the use of orthotics at the March 2008 VA examination. While the reason for these statements is unclear, the VA examiner stated that the Veteran said his feet did not bother him. The examiner diagnosed asymptomatic pes planus. The Veteran has not provided any lay or medical evidence to the contrary. Where the evidence shows that the Veteran's current diagnosed disability is asymptomatic, just as it was the time of service entrance in 2001, it cannot be said to have worsened in service. As such, based on the preponderance of the evidence, the presumption of soundness is rebutted, and there is no basis for service connection on under 38 C.F.R. § 3.310. 38 C.F.R. § 3.306. Tinnitus The Veteran also seeks service connection for tinnitus and the evidence shows that he complained at one point in service of experiencing a ringing in his ears. However, other than the one complaint in December 2007, there is no other evidence of the condition, which indicates the injury was acute and transitory and resolved before service separation. On March 2008 VA examination, the Veteran did not raise any concerns regarding ringing in the ears or offer any history of such a symptom. He was scheduled to undergo a separate examination for his hearing just after the examination of record, but he did not attend. Nor did he attend the examinations schedule on remand. He has not made any statements regarding whether he still experiences ringing in his ears or other tinnitus symptoms. It is the Veteran's general evidentiary burden to establish all elements of the claim, including evidence of a current disability. 38 U.S.C.A. § 5107(a); Fagan v. Shinseki, 573 F.3d. 1282, 1286 (Fed. Cir. 2009). In this instance, the Veteran has not provided any evidence showing ongoing symptomatology of tinnitus since service separation, let alone any treatment or diagnosis fo the condition. Without any evidence of a current disability, the claim must fail. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In reaching the above conclusion, the Board acknowledges that the Veteran is competent to report and diagnose tinnitus, as such disorder is capable of lay observation. However, as noted above, he has not provided any post-service lay as to this issue. Accordingly, the claim may not be granted at present. Asthma The Veteran also seeks service connection for asthma, asserting that he had experienced subjective shortness of breath since his exposure to PDL fumes and exhaust in service. The evidence shows that he was exposed to jet fuel and diesel fuel, as well as exhaust fumes, blowing sand and dust, and burning garbage during his deployments in Iraq. A chest X-ray in September 2005 showed normal lungs. There is no evidence of complaints, symptoms, treatment, or diagnosis of any lung disability, to include asthma, in service. On March 2008 VA examination, the Veteran provided a history of the exposure in service and complained of subjective shortness of breath since the exposure. On physical examination, his lungs were clear to auscultation and percussion and his nose throat and mouth appeared normal. While the examiner did note a diagnosis of asthma, he did not indicate whether that was based on the Veteran's history or current symptoms. However, inasmuch as he had no current symptoms or any evidence of lung pathology at the time of the examination, the Board must conclude that the diagnosis was based on history alone. It is the Veteran's general evidentiary burden to establish all elements of the claim, including evidence of a current disability. 38 U.S.C.A. § 5107(a); Fagan v. Shinseki, 573 F.3d. 1282, 1286 (Fed. Cir. 2009). In this instance, the Veteran has not provided any evidence showing symptoms, treatment or diagnosis of asthma since separation. Nor has he provided any lay statements regarding symptomatology or any functional limitations. Without any evidence of a current disability, the claim must fail. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In reaching the above conclusion, the Board notes that even if the record could be favorably construed as showing current disability, the claim must still fail. Indeed, recent case law precludes establishing service connection solely based on continuity of symptomatology (i.e., where no competent medical nexus opinion favors the claim), except for chronic diseases as defined under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Neither asthma nor any similar respiratory disorders are listed as a chronic disease under 38 C.F.R. § 3.309(a). Thus, even with evidence of in-service treatment and current disability, the claim would fail due to the absence of a medical nexus opinion linking the two. Here, the Veteran has failed on numerous occasions to report for examination scheduled for the purpose of determining the etiology of any respiratory disability present. In sum, even if VA were to concede current disability, the claim must still fail. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for a cervical spine disability, to include strain, is denied. Entitlement to service connection for a left ankle disability is denied. Entitlement to service connection for bilateral pes planus is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for asthma is denied. ____________________________________________ Eric S. Leboff Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs