Citation Nr: 1322597	
Decision Date: 07/16/13    Archive Date: 07/24/13

DOCKET NO.  10-03 393	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1. Whether there is new and material evidence to reopen a previously denied claim for service connection for a right shoulder disorder.

2. Entitlement to service connection for a foot disorder.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Jason A. Lyons, Counsel



INTRODUCTION

The Veteran served on active duty from June 1983 to July 1987.

This appeal to the Board of Veterans' Appeals (Board/BVA) is from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota, with jurisdiction over the case later being transferred to the RO in Houston, Texas.

The Veteran was previously scheduled to have a May 2013 hearing at the RO before a Veterans Law Judge (VLJ) of the Board.  This type of hearing is often and more commonly referred to as a Travel Board hearing.  But since he did not appear for the hearing, and has not provided good cause justification for failure to do so, his hearing request is deemed withdrawn.  See 38 C.F.R. § 20.704(d) (2013). 

The procedural history of this case further indicates that, in addition to the claims on appeal, the Veteran had filed a timely Notice of Disagreement (NOD) with the RO's May 2009 rating decision denying service connection for left side back pain.  However, whereas the RO issued a June 2010 Statement of the Case (SOC) on this claim, the Veteran did not in response file a timely Substantive Appeal (VA Form 9 or equivalent statement) to complete the steps necessary to perfect his appeal of this additional claim to the Board.  See 38 C.F.R. §§ 20.200, 20.202, 20.300, 20.301, 20.302, 20.303, 20.30420.305, 20.306 (2012).  Consequently, this appeal only concerns the claims indicated.

In this decision the Board is adjudicating the claim of entitlement to service connection for a foot disorder.  But as concerning the petition to reopen the claim for service connection for a right shoulder disorder, the Board instead is remanding this other claim to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development.



FINDING OF FACT

There is no competent and credible evidence confirming the Veteran currently has disability involving his feet.


CONCLUSION OF LAW

He has not established that he has a foot disorder, much less on account of disease or injury incurred in or aggravated by his military service.  38 U.S.C.A. §§ 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA's Duties to Notify and Assist the Claimant

The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2013), prescribes several requirements as to VA's duties to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits.  Implementing regulations were codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2013).

VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must, upon receipt of a complete or substantially complete application for benefits, inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will obtain on his behalf.  See also Quartuccio v. Principi, 16 Vet. App. 183 (2002).  A regulatory amendment effective for claims pending as of or filed after May 30, 2008, removed the so called "fourth" requirement that VA also specifically request that he provide any evidence in his possession pertaining to the claim.  73 Fed. Reg. 23,353-56 (Apr. 30, 2008), codified later at 38 C.F.R. 3.159(b)(1).

The U. S. Court of Appeals for Veterans Claims (Court/CAVC) further held in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), that these VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim:  1) Veteran status, 2) existence of a disability, 3) a connection between the disability and military service, but also concerning the "downstream" 4) disability rating and 5) effective date for the award if service connection is granted.

With regard to the claim being decided for service connection for a foot disorder, by way of VCAA notice correspondence dated in April 2009, the RO notified the Veteran as to each element of satisfactory notice set forth under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b).  The VCAA notice further indicated the joint obligation between VA and him in obtaining pertinent evidence and information, explaining that VA would undertake reasonable measures to assist in obtaining additional VA medical records, private treatment records and other Federal records.  See Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002).  The notice correspondence further provided an explanation of the "downstream" initial disability rating and effective date elements of a claim for service connection.

The VCAA notice correspondence was sent to the Veteran prior to the May 2009 rating decision on appeal, thus in accordance with the preferred preadjudicatory timing-of-notice standard.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  

The RO furthermore has taken appropriate action to comply with the duty to assist the Veteran with this claim by obtaining records of his VA outpatient treatment.  His complete service treatment records (STRs) also are of record.  The RO provided assistance in requesting identified records of private treatment from a hospital located in Kansas City, however, upon being contacted this facility was unable to confirm that the Veteran had ever been a patient there.  While no VA Compensation and Pension examination has been provided as to the instant claim the Board finds that one is not necessary under the circumstances.  The competent evidence does not provide any indication of a present foot disability, and without such evidence, there is no possibility of disability that may have a causal connection to military service as would otherwise legally warrant obtaining a VA examination.  See McClendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Charles v. Principi, 16 Vet. App. 370 (2002).  In furtherance of the claim, the Veteran has provided several personal lay statements.  He was scheduled for a Travel Board hearing, but did not appear.  There is no indication otherwise of any further relevant evidence or information that has not yet been obtained.  The record as it stands includes sufficient competent evidence to decide the claim.  Under these circumstances, no further action is necessary to assist him with this claim.

In sum, the record reflects that the facts pertinent to the claim have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations.  That is to say, "the record has been fully developed," and it is "difficult to discern what additional guidance VA could [provide] to the appellant regarding what further evidence he should submit to substantiate his claim."  Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004).  Accordingly, the Board will adjudicate the claim on the merits. 

Background and Analysis

Service connection is granted for current disability resulting from a disease contracted or an injury sustained in the line of duty during active military service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a).  Service connection may be granted for a disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).

Service connection on a direct-incurrence basis requires competent and credible evidence showing:  (1) the Veteran has the alleged disability or, at the very least, indicating he has at some point since the filing of his claim; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship or nexus 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).

Certain conditions are considered chronic (i.e., permanent), per se, and therefore will be presumed to have been incurred in service if manifested to a compensable degree (generally meaning to at least 10-percent disabling) within a year after the Veteran's discharge from service.  This presumption, however, is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a).

Also of application to claims for direct service connection is the principle that where a chronic disease is shown during service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  On the other hand, continuity of symptomatology is required where the condition noted during service is not shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned.  In this circumstance, a showing of continuity of symptomatology since service is required establish chronicity of disease or injury in service and in turn link current disability to service.  38 C.F.R. § 3.303(b).  However, the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) since has clarified in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), that this notion of continuity of symptomatology is limited to where involving those specific diseases denoted as "chronic" (and for which presumptive service connection is otherwise available) under 38 C.F.R. § 3.309(a).

The determination as to whether the requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

All reasonable doubt material to the determination is resolved in the Veteran's favor.  38 C.F.R. § 3.102.

Generally, lay statement evidence may have direct relevance to establishing underlying components of a claim for service connection.  In Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit Court commented that competence to establish a diagnosis of a condition can exist when:  (1) a 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.

Lay testimony where found credible is also competent to establish the presence of continuity of symptomatology for a claimed disability during and since separation from military service (again, subject to the limitation that a "chronic" disease is involved as defined under 38 C.F.R. § 3.309(a)).  See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).

The Federal Circuit Court has further held in Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010) and in Waters v. Shinseki, 601 F.3d 1274, 1278 (2010), that it is error to suggest that lay evidence can never be sufficient to satisfy the requirement of 38 U.S.C.A. § 5103A(d)(2)(B) that there be a nexus between military service and a claimed condition.  But as also observed by the Federal Circuit Court, lay evidence must "demonstrate some competence."  See King v. Shinseki (Fed. Cir. 2012) (citing 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.307(b)) (internal quotation marks omitted).  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.  See Kahana v. Shinseki, 24 Vet. App. 428 (2011).

The Board has given comprehensive consideration to the evidence of record, but finds that the competent evidence weighs against a finding of service connection for a foot condition.  The best indication before the Board is that the Veteran does not currently manifest a foot disorder of any kind.  Records of VA outpatient treatment, which is the only source of pertinent medical information available, do not include a reference to a disorder involving the feet.  Indeed, upon clinical general evaluations in April 1997 and January 2002, there were no noted or reported problems involving the lower extremities.  In May 2009, the Veteran did report during a physical therapy consultation of having required ankle braces to support his ankles; but an X-ray evaluation of his ankles was negative.  In any event, however, the Board does not consider that to represent disability of the feet, in particular.  In August 2011, he was noted to have sustained a then recent right ankle sprain, with residual pain, though again no distinct condition of the feet was indicated.  Apart from what clinical findings fail to show, he has not described in any detail having any current disability of his feet.  His assertions have primarily focused on symptoms associated with his service during the 1980s, to the exclusion of describing a present disability.  Thus, he has not alleged having symptoms of a bilateral foot disorder which would support a later diagnosis by a qualified medical professional.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (indicating competency of lay testimony to describe symptoms that support a later diagnosis by a physician). 

Without the crucial evidence of a present disability, service connection cannot be substantiated.  Under VA law, the very cornerstone of a valid claim for service connection is competent evidence of the current disability claimed.  See Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), citing Francisco v. Brown, 7 Vet. App. 55, 58 (1994) ("Compensation for service-connected injury is limited to those claims which show a present disability."); Hicks v. West, 12 Vet. App. 86, 89 (1998); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992).  See also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.").  A current disability means a disability shown by competent and credible evidence to exist.  Chelte v. Brown, 10 Vet. App. 268 (1997).

So as is apparent, the most fundamental requirement for any claim for service connection is that the Veteran first must have proof he has the condition claimed.  See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328 (1997) (indicating VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability); but see, too, McClain v. Nicholson, 21 Vet. App. 319 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim).

Here, it follows that while the Veteran had some relevant symptoms in service, with a contusion of the left foot in October 1985 and bilateral ingrown toenail removal the next year, absent any present disability or at least indication of foot disability since the filing of this claim, there is no need for further inquiry into whether any such for all intents and purposes nonexistent disability incepted during his service or is otherwise related or attributable to his service.  Absent the required indication of current disability, there necessarily is not any present-day disability to attribute to his military service.  See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.").

Accordingly, this claim for service connection for a foot condition is being denied.  The preponderance of the evidence is against this claim, and under these circumstances the benefit-of-the-doubt doctrine does not apply.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).   


ORDER

Service connection for a foot condition is denied.



REMAND

In connection with his original claim for service connection for a right shoulder disorder, which was denied pursuant to an unappealed December 2000 RO rating decision, the Veteran had identified relevant treatment for "limitations in [the] right shoulder" from a private chiropractor who had treated him from 1992 to 1993.  It does not appear that any effort has been undertaken to obtain the corresponding treatment records.  A remand is required for this purpose.  VA's duty to assist includes making reasonable attempts to secure and obtain private medical records, including where involving petitions to reopen previously denied claims.  See 38 C.F.R. §§ 3.159(c)(1) (2013).

Accordingly, this claim is REMANDED for the following additional development and consideration:

1. Request that the Veteran complete an updated VA Form 21-4142 regarding past treatment for his right shoulder disorder at Linderman Chiropractic from 1992 to 1993, located in Waco, Texas.  Then obtain these private medical records based on the information he provides and has provided concerning his treatment at this facility.  Provided that the search for any identified records is unsuccessful, notify the Veteran and his representative of this in accordance with the provisions of 38 U.S.C.A. § 5103A(b) and 38 C.F.R. § 3.159(e).

2. Then, in light of this and all other additional evidence received since the most recent Supplemental Statement of the Case (SSOC), determine whether there is the required new and material evidence to reopen the claim for service connection for a right shoulder disorder.  If this claim continues to be denied, either the petition to reopen or on its underlying merits, then send the Veteran and his representative another SSOC and give them an opportunity to submit still additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim.

The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are 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).




______________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs