Citation Nr: 1321053 Decision Date: 07/01/13 Archive Date: 07/12/13 DOCKET NO. 09-50 549 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a lung disorder. 2. Entitlement to service connection for a bilateral foot disorder. ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1969 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In his December 2009 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge at the RO. The Veteran received notice of the hearing, scheduled for June 2013, but failed to appear. Under these circumstances, the request for a Board hearing is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2012). The Virtual VA electronic claims file has been reviewed; a review of the documents reveals no records pertinent to the issue on appeal. The issues of entitlement to service connection for tinnitus, bilateral hearing loss, and a lower back disability were raised by the Veteran in June 2012, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has a lung disorder due to a disease or injury in service. 2. The preponderance of the evidence is against finding that the Veteran has a bilateral foot disorder due to a disease or injury in service. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for a lung disorder have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 2. The criteria for establishing service connection for a bilateral foot disorder have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, in a November 2008 letter the Veteran was provided notice regarding what information and evidence is needed to substantiate his claims, including what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter advised the Veteran to submit evidence from medical providers, statements from others who could describe their observations of his disability level, and his own statements describing the symptoms, frequency, severity and additional disablement caused by his disability and the effect that the disability has on his employment. The notice also provided examples of pertinent medical and lay evidence that the Veteran may submit (or ask the Secretary to obtain) relevant to establishing entitlement to a disability evaluation. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The case was last adjudicated in October 2009. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran including service treatment records, VA treatment records, a the report of a VA examination. The Veteran has not identified any other relevant records or evidence that has yet to be acquired by VA and associated with the claims file. Although an examination or an opinion was not obtained in connection with the claim for entitlement to service connection for a bilateral foot disorder, the Board finds that VA is not under any obligation to provide an examination, as such is not necessary to make a decision on the claim. Specifically, under the statute, an examination or opinion is necessary to make a decision on the claim when the record (1) contains competent evidence that the claimant has a current disability or persistent or recurrent symptoms of the disability; (2) contains evidence which indicates that the disability or symptoms may be associated with the claimant's active duty; and (3) does not contain sufficient medical evidence for VA to make a decision. See 38 U.S.C.A. § 5103A. Here, the evidence does not indicate that any bilateral foot disorder is associated with the Veteran's active service many years ago. In this case, the Veteran has not brought forth sufficient evidence suggestive of a causal relationship between the claimed disabilities and his active service. He has been informed by the RO that he would need medical evidence of a relationship between the claimed disabilities in service, and has not provided such evidence nor indicated where such evidence may be found. Recently, the Federal Circuit has addressed the appropriate standard to be applied in determining whether an examination is warranted under the statute. In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service will not suffice to meet the legal standard, as this would be contrary to the intent of Congress, resulting in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279. In the instant case, the only evidence indicating a possible association between the claimed foot disorders at issue and the Veteran's service are his own conclusory generalized statements, which are not supported by the evidence of record. Consequently, VA is not required to afford him an examination as to the etiology of this claimed disorder. In sum, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument. Thus, the Veteran was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of these matters on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Relevant Laws and Regulations Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection there must be competent evidence of a current disability; competent evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet App. 341, 346 (1999). It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board has reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Lung Disorder The Veteran asserts that he has a current lung disorder as a result of asthma that he experienced in service. The Veteran's service treatment records show that in December 1970, while being evaluated for discharge, the Veteran was diagnosed with bronchial asthma with onset while still on active duty, and on his November 1970 separation exam it is noted that the Veteran had asthma by history, now asymptomatic. Examination in December was interpreted as essentially within normal limits. It was reported there had been no attacks since the colder weather had started. The Veteran's VA treatment records show that in November 2004 the Veteran reported occasional wheezing and a 20 year smoking habit, and chest X-rays were performed which showed clear lungs and normal pulmonary vasculature, with no acute cardiopulmonary disease found. In December 2007 X-rays of the Veteran's chest were performed due to previous findings of "ground glass" appearance on CT scans, and he was diagnosed with chronic obstructive pulmonary disease. The Veteran has provided no other evidence of any medical treatment for any lung disorder or indicated that he has received any treatment for a lung disorder. In December 2008 the Veteran was afforded a VA examination by a physician. The Veteran reported that he first had problems with shortness of breath while in the military performing physical training. He reported that he was treated with epinephrine and aerosol treatments at that time. He reported that he now has shortness of breath after walking or jogging over one quarter of a mile. He denied other symptoms, including chest pain, cough, or night sweats. He reported that he smoked four cigars per day for 30 years, but quit smoking two years ago. He denied ever using oral steroids or prescribed inhalers, but stated that he used an over the counter inhaler every day. On physical examination the examiner found no evidence of severe anemia or polycythemia secondary to chronic obstructive pulmonary disease, and pulmonary function test results were 75% of predicted and showed no indication of asthma. X-rays were performed which found no acute abnormality, no pleural fluid, and clear lungs. The examiner opined that the Veteran likely had exercise-induced or seasonal allergic asthma in while the service, but this was not the beginning or the cause of chronic obstructive pulmonary disease, which is not caused by asthma. The examiner stated that the Veteran now has mild obstructive defect consistent with mild chronic obstructive pulmonary disease which was likely due to many years of smoking cigars. In light of the foregoing evidence, the preponderance of the evidence weighs against granting service connection. The evidence of record does show that the Veteran has a current lung disorder, diagnosed by December 2007 VA X-rays and by the December 2008 VA examiner as chronic obstructive pulmonary disease. He was not noted to have asthma. However, the weight of the evidence does not reflect that this disorder had its onset during or is otherwise related to the Veteran's active duty service. There is no competent medical evidence of record indicating that the Veteran's chronic obstructive pulmonary disease, or any other lung disorder, is related to service. The sole medical opinion of record, that of the December 2008 examiner, states that the Veteran's asthma during service was not a cause of chronic obstructive pulmonary disease nor did it indicate the start of any chronic lung disorder. The examiner found that his symptoms during service were likely exercise-induced or seasonal allergic asthma, and the Veteran's pulmonary function tests showed no indication of asthma currently. The only statements in favor of a finding of a relationship to service are those of the Veteran himself. The Board acknowledges the Veteran's statements indicating that he had shortness of breath in the service and that he is also experiencing shortness of breath now, as he is competent to report on matters observed or within his personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, as a layperson not shown to possess appropriate medical training and expertise, the Veteran is not competent to render an opinion on the etiology of his shortness of breath, as such requires medical expertise to determine such etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Thus, the Veteran's opinion that his current shortness of breath and chronic obstructive pulmonary disease is related to the shortness of breath and asthma that he experienced in the service is not a competent medical opinion. As such, the medical findings and opinion of the VA examiner warrant greater probative weight than the Veteran's lay contentions. Furthermore, the Veteran has not alleged any continuity in his symptomatology since service, and the earliest record of treatment or diagnosis for a lung disorder since service is not until December 2007, which is approximately 37 years after active military service. The Board points out that the passage of so many years between discharge from active service and the documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). For the foregoing reasons, the preponderance of the evidence is against the claim for entitlement to service connection for a lung disorder. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. at 53. Bilateral Foot Disorder The Veteran also asserts that he has a bilateral foot disorder caused by frostbite that he had while stationed in Germany. The Veteran's service treatment records are silent for any mention of frostbite or any other disorder of the lower extremities. The Veteran's Record of Assignments and service treatment records indicate that the Veteran was stationed only in Fort Ord, California, Fort Lee, Virginia, and Fort Riley, Kansas; there is no indication that the Veteran ever served in Germany. The Veteran's DD Form 214 indicates that he did not have any foreign and/or sea service. The Veteran's VA treatment records show that the Veteran has been receiving regular evaluation and treatment for diabetes mellitus and foot disorders, including diabetes-related foot problems, such as Charcot foot. In a September 2004 foot examination, the Veteran was found to have degenerative changes of the first tarsometatarsal joints bilaterally, flexion deformities of the second, third, and fourth digits bilaterally, and hypertrophic osseous changes of the right talus. In November 2004 he was treated for painful onychocryptosis tibial hallux right with mild inflammation. In February 2005 the Veteran was treated for bilateral onychomycosis and onychocryptosis. In November 2005 the Veteran was examined for Charcot foot changes, and was found to have new Lisfranc fracture-dislocation and incidental calcaneal enthesopathy in the left foot and hypertrophic changes in the bilateral feet. Since November 2005 the Veteran has received regular treatment and examinations for Charcot foot, right foot exostosis, left foot edema, and onychomycosis. In June 2006 the Veteran underwent amputation of the right distal phalangeal hallux. In the Veteran's numerous follow-up examinations, no complications from the surgery were found. X-rays of the right foot taken in September 2006 showed blunting of the tuft of the distal phalanges of the second, third, and fourth digits and minor fragmentation of bone over the dorsum of the base of the first metatarsal with mild arthritic change, possibly due to former trauma. In September 2007 X-rays of the bilateral feet showed Charcot joint in the left foot and distal phalangeal amputation of the right hallux, with chronic neuropathic joints along the left tarsometatarsal region. X-rays of the left foot taken in August 2007 showed advanced Charcot changes in the midfoot involving the tarsal bones and tarsal-metatarsal joint spaces and pes planus. In December 2005 and May 2008 the Veteran was fitted for custom molded shoes for Charcot foot. The Veteran also has been treated on a number of occasions for painful toenails, debridement, and minor toe trauma. In this case, while the Veteran has been shown to have bilateral foot disorders, the evidence fails to show that such disabilities are related to his military service, and therefore the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a bilateral foot disorder. The Veteran has provided no medical evidence of a diagnosis or treatment for frostbite or other cold injury to the feet, nor has he indicated that he has ever sought a medical evaluation or treatment for this type of injury. The Veteran's VA treatment records show frequent treatment of the feet, but there is no indication in any of the treatment records that these conditions are in any way related to frostbite or present with a similar symptomatology as residuals of cold injury. The evidence of record clearly shows that the Veteran has been receiving regular evaluation and treatment of the feet primarily due to complications from diabetes mellitus, and there is no indication in any of his treatment records that the Veteran has residuals of frostbite or has ever had frostbite or other cold injury. As noted, service treatment records show no evidence of any foot pathology or abnormality. The Board notes that the only reason given by the Veteran that his current foot disorders are related to service is that he had frostbite in active service. The Board also recognizes that the Veteran, as a layperson, is competent to report on matters observed or within his personal knowledge. See Layno, 6 Vet. App. at 470. Thus, he is competent to report on experiencing cold weather while in service. However, the Veteran is not competent to provide a diagnosis of frostbite or residuals from cold injury, or to provide an etiology for his current foot disorders. In this regard, whether a cold injury occurred, and rises to the level of frostbite, versus simply experiencing cold extremities as a normal reaction to being in cold weather, is a question requiring medical expertise. Furthermore, the Veteran's contention that he suffered frostbite while station in Germany is not credible, as the Veteran's personnel records and DD Form 214 clearly show where the Veteran was stationed during his time in service, and this does not include any time stationed in Germany or elsewhere abroad. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006) (the lack of contemporaneous medical records, the significant time delay between the original observations and the date on which the statements were written, and conflicting statements of the veteran are factors that the Board can consider and weigh against a veteran's lay evidence). As a layperson not shown to possess appropriate medical training and expertise, the Veteran is not competent to render a persuasive opinion on whether he suffered from frostbite during service and has current residuals thereof, nor can he offer any competent evidence on the etiology of his current foot disorders. See Jandreau, 492 F.3d at 1376-77. As discussed above, there is no credible, competent, and persuasive evidence of record to establish that the Veteran suffered frostbite of the feet or any other foot pathology during service or has a current disability related thereto which would trigger an obligation to provide the Veteran with a VA examination. See 38 U.S.C.A. § 5103A; see also Waters, 601 F.3d at 1278-1279; Bardwell v. Shinseki, 24 Vet. App. 36 (2010). The Veteran's service treatment records show no mention of cold injury or any type of disease or injury to the feet, and his contentions that he experienced frostbite while stationed in Germany are not credible. There exists no evidence of record to suggest that the Veteran has an injury related to cold injury residuals or that he has ever had cold injury to his feet. The Veteran has provided no information regarding any treatment or diagnosis for this condition at any time or described his claimed condition in detail, as either pertaining to what he experienced in service or what he experiences now. To the extent that he is seeking service connection for the various foot disorders documented in his VA treatment records, there is no indication in any of the record that these conditions could be related to frostbite during service or any other event during service. In short, there is no competent and credible evidence showing frostbite or cold injury to the bilateral feet during service or any competent and credible evidence linking the Veteran's current foot disorders in any way to his active duty service. Accordingly, the preponderance of the evidence is against the claim for service connection, and the claim must be denied. In reaching the conclusions above the Board has again considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. at 53. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for a lung disorder is denied. Entitlement to service connection for a bilateral foot disorder is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs