Citation Nr: 1319209 Decision Date: 06/13/13 Archive Date: 06/21/13 DOCKET NO. 09-43 535 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for a left foot disability. 2. Entitlement to service connection for sinusitis. 3. Entitlement to service connection for hemorrhoids. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. M. Kirby, Counsel INTRODUCTION The Veteran served on active duty from July 1979 to April 1980 and from August 1980 to July 1985 and from February 1989 to September 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Jurisdiction rests with the RO in St. Paul, Minnesota, from which the appeal was certified. The issues of entitlement to service connection for sinusitis and entitlement to service connection for hemorrhoids are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center in Washington, D.C. FINDING OF FACT The evidence does not reveal a currently diagnosed chronic left foot disability. CONCLUSION OF LAW The criteria for service connection for a left foot disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS VA has met all statutory and regulatory notice and duty to assist provisions. See 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, 3.326 (2012). The Veteran was notified of VA's duty to assist as part of his participation in the Benefits Delivery at Discharge program, and submitted written confirmation that he received such notice in a January 2007 statement. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Some of the Veteran's service treatment records, VA medical treatment records, and identified private medical records have been obtained. Following a Formal Finding of Unavailability being issued by the RO, the Veteran was notified that other service treatment records were unavailable; he was asked to send in any copies he may have possessed. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The record does not reflect that the Veteran is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2); Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010). With respect to the Veteran's claim for a left foot disability, the February 2007 fee-basis examination was adequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The examiner considered the Veteran's medical history, the reported onset and duration of his symptoms; a physical examination was conducted, and a medical opinion as to diagnosis was offered. Review of the record does not indicate that additional evidence pertinent to the issue adjudicated in this decision is available, but not associated with the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication VA did not provide sufficient notice or assistance, such that it reasonably affects the outcome of the case, the Board finds that any such lack of sufficient notice is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset, frequency, duration, and severity of his symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (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, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F. 3d 1372 (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, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, 7 Vet. App. at 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions). As noted above, the Veteran's treatment records from his first period of service are unavailable. However, the Veteran has not alleged that he experienced a left foot injury during that first period of service, which lasted approximately 9 months, and his September 1980 service entrance examination and September 1980 report of medical history, at the beginning of his second period of service, do not reflect complaints of any left foot symptoms, reports of a history of foot injury, or a diagnosis of a left foot disability. Other records from the Veteran's second period of service reflect that he complained of left foot pain at an October 2003 sick call visit. The examining physician ordered an X-ray to determine if it was a left foot fracture or a strain. The X-ray was normal; Motrin and an ice/rest regimen were prescribed. At the Veteran's February 2007 pre-discharge examination, he reported a 3-year history of foot problems which had been initially diagnosed as muscle strain, and noted that his symptoms included left shin and thigh pain. The examination report reflects no abnormal clinical findings on physical examination or X-ray; the examiner specifically noted that there was no evidence of pes cavus, pes planus, hammertoes, Morton's metatarsalgia, hallux valgus, hallus rigidus, limited function of the foot, or uneven shoe wear. The examiner concluded that there was no pathology to render a diagnosis with respect to the Veteran's complaint of left foot pain. Review of the post-service evidence not show a currently diagnosed left foot disability. Private treatment records from University of South Florida, Bay Area Urology, and Center for Dermatology do not reflect complaints of foot symptomatology, reports of a history of foot symptomatology, or treatment for a foot disability. Similarly, records from military and VA facilities to include Naval Base Health Center Mayport, MacDill Air Force base Clinic, and the Bay Pines VA Medical Center also do not show complaints, reported symptoms, or treatment. Indeed, the problem list of the Veteran's medical conditions in the MacDill Air Force Base records does not include any reference to foot symptoms or a diagnosed foot disability. Thus, the record does not establish the existence of a chronic left foot disability. Although the Veteran credibly asserts that he has experienced left foot pain since service, pain without underlying diagnosed pathology does not in and of itself constitute a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). Without competent evidence of a chronic disability, service connection for the claimed disability cannot be awarded. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (indicating service connection presupposes a current diagnosis of the condition claimed). For this reason, the Veteran's claim for service connection for a left foot disability cannot be granted. As the disposition of this claim is based on the law, and not the facts of the case, the claim must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Where the law, rather than the facts, is dispositive, the benefit of the doubt provisions are not for application. 38 U.S.C.A. § 5107(b). Accordingly, the Veteran's claim for service connection for a left foot disability must be denied. ORDER Service connection for a left foot disability is denied. REMAND The Veteran's service treatment records reflect that he was treated for sinusitis and hemorrhoids on multiple occasions during service. Although his February 2007 pre-discharge exam showed no pathology on which to make a diagnosis of either claimed condition, he has alleged to include in his November 2009 VA Form 9 that he continues to experience current symptoms of hemorrhoids and sinusitis. A Veteran's lay statement can be competent evidence of symptoms that are capable of lay observation. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Based on the documented in-service treatment of these conditions, and the Veteran's credible lay assertions of continued symptomatology, the Board finds that new VA examinations are required to determine whether the Veteran, in fact, has pathology that would warrant current diagnoses of these conditions. This is especially the case as both sinusitis and hemorrhoids are conditions that vary in terms of severity in a given period, and it is not clear whether the February 20097 pre-discharge examination occurred at a time when both conditions were dormant. See, e.g. Ardison v. Brown, 6 Vet. App. 405, 408 (1994). Accordingly, the issues of issues of entitlement to service connection for sinusitis and entitlement to service connection for hemorrhoids are REMANDED for the following actions: 1. Notify the Veteran that he may submit lay statements of the nature and onset of any hemorrhoids or sinus symptoms from himself as well as from other individuals who have first-hand knowledge of such symptoms, to include whether the onset and recurrence of such symptoms during and since service. He should be provided an appropriate amount of time to submit this lay evidence. 2. Obtain and associate, either physical or electronically, any pertinent, outstanding treatment records. 3. Schedule the Veteran for the appropriate VA examination to determine the nature and etiology of his claimed sinusitis. If possible, this should be scheduled during a period of the year in which the Veteran is symptomatic. The claims folder should be made available to the examiner for review in connection with the examination. All necessary tests should be conducted. Based on a review of the Veteran's record and his competent lay account as to the onset and/or recurrence of any sinus problems, the examiner must opine as to whether any sinus disability present since the Veteran's discharge from active duty is related to or had its onset during service. In answering this question, the examiner must indicate whether the Veteran had a sinus disorder at any time since his discharge from active duty in September 2007. The examiner should fully explain all opinions stated. 4. The Veteran should be afforded a VA examination to determine the onset and/or etiology of any hemorrhoid disorder found to be present. If possible, this should be scheduled during a period of the year in which the Veteran is symptomatic. All indicated tests and studies are to be performed. Prior to the examination, the claims folder must be provided to the examiner. Based on a review of the Veteran's record and his competent lay account as to the onset and/or recurrence of hemorrhoids, the examiner must opine as to whether any hemorrhoid disability present since the Veteran's discharge from active duty is related to or had its onset during service. In answering this question, the examiner must indicate whether the Veteran has had a hemorrhoid disorder at any time since his discharge from active duty in September 2007. The examiner must also comment as to whether the Veteran's hemorrhoids are part of his service-connected gastritis, or a separate and distinct disability. If the examiner finds that it is a separate and distinct disability, he or she should state whether or it is at least as likely as not that any diagnosed hemorrhoid disability onset during or is otherwise related to the Veteran's period of active military service. All examination findings, along with a complete rationale for all opinions expressed, should be set forth in the examination report. 4. Then readjudicate the issues on appeal. If any benefit sought on appeal remains denied, provide a Supplemental Statement of the Case to the Veteran and his representative, and an appropriate period of time in which to respond. If the benefits sought on appeal are not granted, should issue the Veteran and his representative a supplemental statement of the case and provide the veteran an opportunity to respond. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. All claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs