Citation Nr: 1320784 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 93-02 358 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for pes planus. 2. Entitlement to service connection for a bilateral hammertoe deformity with bunions and blisters. 3. Entitlement to service connection for hypertension. 4. Entitlement to service connection for circulatory problems of the bilateral lower extremities. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran served on active duty from February 1974 to February 1976. He also served in the Army Reserve from February 1976 to February 1980. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from rating actions of the Department of Veterans Affairs (VA) Regional Offices (RO). Historically, the RO denied the Veteran's claim for a bilateral foot disability in September 1991. In March 1992, the RO denied the Veteran's claims for service connection for pes planus; a hammertoe deformity with bunions and blisters; hypertension; and circulatory problems, lower extremities. In September 1994 and July 1999, the Board remanded the Veteran's claims for further evidentiary development. In February 2003, the Board denied the claims. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court), which vacated the Board's decision and remanded it for further action in December 2003. In March 2004, the Board remanded the claims for additional development. In March 2005, the Board denied entitlement to service connection for the disabilities on appeal. The Veteran again appealed that decision to the Court, which in September 2006 again vacated the Board's decision and remanded the claims. . In March 2007, the Board once again remanded the claims for further development, and in August 2011, denied the claims on the merits. That decision was also vacated by the Court and remanded for additional action. The matter is now back before the Board. Notably, the Veteran testified at RO hearings in June 1992 and September 2007. He also testified at a Board videoconference hearing in January 2011. Copies of all hearing transcripts are associated with the claims file. FINDINGS OF FACT 1. Pes planus was not manifest during service or for many years thereafter, and there is no competent or credible evidence relating pes planus to the Veteran's military service. 2. A bilateral hammertoe deformity with bunions and blisters was not manifest during service or for many years thereafter, and there is no competent or credible evidence relating a bilateral hammertoe deformity with bunions and blisters to the Veteran's military service. 3. Hypertension was not manifest during service or for many years thereafter, and there is no competent or credible evidence relating hypertension to the Veteran's military service; hypertension was not manifest to a compensable degree during the first post service year. 4. Circulatory problem of the lower extremities, including varicose veins, were not manifest during service or for many years thereafter, and there is no competent or credible evidence relating a circulatory problem of the lower extremities, including varicose veins, to the Veteran's military service. CONCLUSIONS OF LAW 1. Pes planus was not incurred in or aggravated by active duty military service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 2. Bilateral hammertoe deformities with bunions and blisters were not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303 (2012). 3. Hypertension was not incurred in or aggravated by active duty military service and may not be presumed to have been incurred in or aggravated by such service. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). 4. Circulatory problems of the lower extremities, including varicose veins were not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 A. Duty to Notify Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2012). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). During the adjudication of the Veteran's claims, a letter dated in March 2004 was sent to the Veteran in accordance with the duty to notify provisions of the VCAA. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Veteran was notified of the evidence that was needed to substantiate his claim; what information and evidence that VA will seek to provide and what information and evidence the Veteran was expected to provide, and that VA would assist him in obtaining evidence, but that it was his responsibility to provide VA with any evidence pertaining to his claims. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Here, the duty to notify was not satisfied prior to the initial decision on the Veteran's claims by the RO. Under such circumstances, VA's duty to notify may not be "satisfied by various post-decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant's presentation." Rather, such notice errors may instead 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) (where notice was not provided prior to the AOJ's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the AOJ) see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case (SOC) or supplemental statement of the case (SSOC), is sufficient to cure a timing defect). In this case, the VCAA duty to notify was satisfied subsequent to the initial AOJ decision by way of the March 2004 letter. Although the notice letter was not sent before the initial RO decision in this matter, the Board finds that this error was not prejudicial to the Veteran because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the Veteran been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the claim was then readjudicated by way of an SSOC in November 2004, after the notice was provided. For these reasons, it is not prejudicial to the Veteran for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. See Shinseki v. Sanders/Simmons, 129 S.Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the United States Court of Appeals for Veterans Claims (Court) to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). Moreover, in Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, although the notice provided did not address either the rating criteria or effective date provisions that are pertinent to the appellant's claim, such error was harmless given that service connection is being denied, and hence no rating or effective date will be assigned with respect to this claimed condition. B. Duty to Assist The Veteran's service treatment records, VA treatment records, private treatment records, Social Security Administration (SSA) records, VA authorized examination reports, lay statements, and hearing transcripts have been associated with the claims file. Notably, the Veteran's service treatment records are incomplete, despite multiple requests to the National Personnel Records Center (NPRC), a military records repository; the Adjutant General of Texas; and, numerous individual service military hospital installations in an attempt to locate any available treatment records. Given the multiple unsuccessful attempts, evident from the record, to obtain his complete service treatment records, the Board finds that additional attempts to obtain these records would be futile. 38 C.F.R. § 3.159(c)(2) and (c)(3). The Board is mindful that, in a case such as this, where service treatment records are unavailable, there is a heightened obligation to explain findings and conclusions and to consider carefully the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). The case law does not, however, lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant. See Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (the Court declined to apply an "adverse presumption" where records have been lost or destroyed while in Government control which would have required VA to disprove a claimant's allegation of injury or disease in service in these particular cases). The Veteran has not been afforded VA examinations addressing the etiology of his claimed conditions. As noted in the most recent action by the Court, the Board did not address in the August 2011 decision whether such examinations were warranted. However, the Board finds that the evidence, which does not reflect credible evidence of an injury or disease in service, or a relationship of a current condition to service, leads to the conclusion that a remand for examinations and/or opinions is not necessary to decide the claims. See 38 C.F.R. § 3.159(c)(4). Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in service connection claims, 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, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. As discussed below, the evidence does not satisfy the standards of McLendon, as the evidence is against a finding of an injury in service or a relationship between a current disability and service. Furthermore, as noted above, the Veteran testified at hearings before the Board and the RO. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) requires that the Decision Review Officer (DRO) or Veterans Law Judge (VLJ) who chairs a hearing must fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearings, the DRO and VLJ collectively elicited testimony to substantiate the Veteran's claims, and sought to identify any pertinent evidence not currently associated with the claims folder that might have been outstanding that might substantiate the claims. Moreover, the Veteran has not asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) or identified any prejudice in the conduct of the hearings. By contrast, the hearings focused on the elements necessary to substantiate the claims and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims for benefits. As such, the Board finds that, consistent with Bryant, the DRO and VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. VA has provided the Veteran with the opportunity to submit evidence and argument in support of his claims. The Veteran has not made the Board aware of any additional evidence that needs to be obtained prior to appellate review, and no further action must be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Service Connection A. Applicable Law In order to establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may 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) (2012). In addition, certain chronic diseases, including hypertension, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). For a 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. If the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). However, service connection based on a theory of continuity of symptomatology is applicable only for those disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 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. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when 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); (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. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, 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, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza at 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). B. Evidence Available service treatment records are negative for any complaints, treatment, or diagnoses of the claimed disabilities. The Veteran underwent an enlistment examination in February 1974, and an quadrennial examination in 1978, two years after his separation from active service. No relevant abnormalities were noted, and the Veteran denied a history of any foot problems, leg cramps, high blood pressure, and other symptoms. Private medical records in 1977 and 1979 noting the Veteran's blood pressure was 100/64 and 110/60 respectively. Records from August 1987 show the Veteran's work boots were worn out and hurting his toes. VA treatment records dated November 1988 show the Veteran was diagnosed with hammertoes and bunions, and that he would require special shoes. Additional records dated December 1989 reflect diagnoses of hammertoes, calluses, and corns. The Veteran reported a 2-month history of foot pain. At a December 1991 VA general medical examination the Veteran reported that he was diagnosed as having hypertension after a motor vehicle accident in 1989. He said he was now on medication and was totally asymptomatic. He related that he was diagnosed as having varicose veins in 1976. The diagnoses on examination included a hammer toe deformity with blisters and bunions of both feet, pes planus, superficial varicose veins involving both lower extremities (asymptomatic), essential hypertension (not found at present). An April 1995 VA arteries/veins examination report shows that the Veteran reported that he started having pain in his lower extremities in February 1994. He noted that his private physician was unable to determine the etiology of his condition. He also said he was told that he could have a possible circulatory condition of the lower extremities. Following an examination, the diagnoses included peripheral vascular disease involving both lower extremities (not found at present). An April 1995 VA hypertension examination report notes that the Veteran reported that in 1976, during a routine service examination, he was diagnosed as having hypertension. He said he was treated on an outpatient basis, and received medication which he has been on ever since. Following an examination, the diagnosis was essential hypertension. In various statements made beginning in March 1991 and continuing through his January 2011 video conference hearing, the Veteran testified that he first developed problems with flat feet, hammertoes, bunions, and varicose veins during service. In basic training he began having swollen feet, and lots of corns. He ran three miles each morning. He needed wider boots and suffered a lot. In Advanced Individual Training (AIT) he had big walks all night and his feet hurt. He reportedly was seen in sick call many times regarding his feet. His blisters and corns were treated by the medical corpsman. In sick bay he was given cream for his feet and had his corns shaved, etc. However he testified that he never had his feet examined by a doctor during his two years of active service. He was examined two years later and diagnosed with flat feet. Essentially, he noted, flat feet had not been previously observed because his arches flattened out only when he stood up and applied weight to his feet. In service he was issued boots which were too small and he underwent severe training. After service he worked in construction climbing ladders and his feet suffered. His wife treated him by shaving his corns and treating his blisters. He reported undergoing left great toe surgery twice for bunions about six months ago. Regarding hypertension, he testified that he was diagnosed with hypertension in service. He noted that a doctor told him he had high blood pressure and he has been on medication since. After service he stopped taking medication. Through the years the condition returned and he has been diagnosed and treated for hypertension. Regarding circulatory problems of the bilateral lower extremities, he noted that he had been diagnosed with varicose veins in service. He contended that these were caused by the heavy exercise in service. The Veteran's extensive claims file contains additional findings related to his claimed disabilities. C. Analysis Based on the evidence of record, the Board finds that service connection is not warranted for any of the Veteran's claimed conditions. The record reflects diagnoses of pes planus, hammertoes with bunions and blisters, hypertension, and varicose veins during the period on appeal. However, the overall weight of the evidence is against a finding that any of these conditions were incurred in service. As noted above, service treatment records do not reflect any complaints, treatment, or diagnoses of the claimed conditions. None of the Veteran's claimed conditions were diagnosed until at least November 1988, approximately 12 years after his separation from service. The only evidence relating the Veteran's claimed conditions to service is his own testimony. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the facts in this case, hypertension falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). While the Board acknowledges that the Veteran is competent to provide evidence of his own symptoms, and is competent to report simple conditions such as blisters and varicose veins, there are no documented complaints of any symptoms or conditions in service. The Veteran underwent an examination two years after his discharge from active service, and no relevant abnormalities were recorded at that time, and he specifically denied a history of any relevant symptoms. The Veteran later reported being diagnosed with hypertension in 1989 following a motor vehicle accident. He also reported problems with his work shoes in 1987, and only reported a 2-month history of foot pain in 1989. These facts weigh heavily against the claim he now makes that he has had problems with his claimed conditions ever since service. The Board is not holding that corroboration is required. Rather, the Board finds his assertions to be less credible than the negative contemporaneous records. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (medical records are generated with a view towards ascertaining the appellant's then-state of physical fitness; they are akin to statements of diagnosis and treatment and are of increased probative value); see also Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007) (the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, and inconsistency with other evidence of record). As such, the Board finds that the probative evidence is against the claim based on continuity of symptomatology. The Court has indicated that the normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for the pertinent chronic disability for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology since service and had failed to account for the lengthy time period following the conclusion of his service for which there was no clinical documentation of the claimed disorder). The preponderance of the evidence is against finding that the Veteran's claimed conditions are etiologically related to active service. The appeal is accordingly denied. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the Veteran's claims. ORDER Service connection for pes planus is denied. Service connection for bilateral hammertoe disabilities with bunions and blisters is denied. Service connection for hypertension is denied. Service connection for circulatory problems of the bilateral lower extremities is denied. ____________________________________________ KRISTI L. GUNN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs