Citation Nr: 1324293 Decision Date: 07/31/13 Archive Date: 08/07/13 DOCKET NO. 10-03 702 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a chronic respiratory disorder, to include bronchitis, also claimed as "inflammation of the windpipe." 2. Entitlement to service connection for a disorder characterized by "chest tightness with a loss of blood circulation," also claimed as "inflammation of the windpipe," to include as secondary to bronchitis. 3. Entitlement to service connection for bilateral pes planus with plantar fasciitis, also claimed as flat feet/plantar fascial fibromatosis. 4. Entitlement to service connection for an acquired psychiatric disorder, claimed as adjustment disorder, dysthymic disorder and/or anxiety. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The Veteran served on active duty from April 1996 to March 2000. This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Upon review of this case and, in particular, the Veteran's Substantive Appeal, it is clear that he has chosen not to perfect his appeal regarding the issues of entitlement to service connection for a chronic hand disorder, a chronic arm disorder, and bilateral restless leg syndrome, as well as entitlement to nonservice-connected pension benefits. Accordingly, those issues are not currently before the Board. Finally, for reasons which will become apparent, the appeal as to the issue of entitlement to service connection for bilateral pes planus with plantar fasciitis is being REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. VA will notify you if further action is required on your part. FINDINGS OF FACT 1. A chronic respiratory disorder, to include bronchitis and/or inflammation of the windpipe, is not shown to have been present in service, or at any time thereafter. 2. A chronic disorder characterized by chest tightness, with a loss of blood circulation, to include inflammation of the windpipe, is not shown to have been present in service, or at any time thereafter. 3. To the extent the Veteran currently has an acquired psychiatric disorder, to include adjustment disorder, dysthymic disorder, and/or anxiety, that disorder is not shown to have been present in service, or for many years thereafter, nor is it the result of any incident or incidents of the Veteran's period of active military service. CONCLUSIONS OF LAW 1. A chronic respiratory disorder, to include bronchitis and/or inflammation of the windpipe, was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 2. A chronic disorder characterized by chest tightness, with a loss of blood circulation, to include inflammation of the windpipe, was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 3. An acquired psychiatric disorder, to include adjustment disorder, dysthymic disorder, and/or an anxiety disorder, to the extent such a disorder exists, was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) In the case at hand, the requirements of 38 U.S.C.A. §§ 5103 and 5103A (West 2002) have been met. There is no issue as to whether the Veteran was provided an appropriate application form, or the completeness of his application. VA notified the Veteran in correspondence of August, October, and November 2008 of the information and evidence needed to substantiate and complete his claims, to include notice of what part of that evidence was to be provided by him, and what part VA would attempt to obtain. VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate his claims. As to the issues currently before the Board, there is no evidence that additional records have yet to be requested, or that additional VA examinations are in order. Moreover, there is currently no error or issue which precludes the Board from addressing the merits of the Veteran's appeal. Finally, in reaching this determination, the Board has reviewed all the evidence in the Veteran's claims file, which includes his multiple contentions, as well as service treatment records, VA (including Virtual VA) records, and private treatment records and examination reports. 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 Veteran 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 Veteran's claims, and what the evidence in the claims file shows, or fails to show, with respect to those claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service Connection The Veteran in this case seeks entitlement to service connection for a chronic respiratory disorder, to include bronchitis, as well as for a disorder characterized by chest tightness with a loss of blood circulation, and an acquired psychiatric disorder. In pertinent part, it is contended that all of the aforementioned disabilities had their origin during the Veteran's period of active military service. In that regard, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Service connection may also be granted for any disease initially diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (2012). In order to establish service connection for a claimed disability, there must be competent evidence of that disability; medical, or in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and competent evidence of a nexus between the claimed inservice disease or injury and the current disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). In the present case, service treatment records fail to demonstrate the presence of a chronic respiratory disorder, a chronic disorder characterized by chest tightness with a loss of blood circulation, and/or an acquired psychiatric disorder. While it is true that, in August 1996, while in service, the Veteran received treatment for what was described as "simple pneumonia," as of the time of a service separation examination in March 2000, the Veteran voiced no complaints of any respiratory condition. A physical examination of the Veteran's lungs and chest conducted at that time was entirely within normal limits, as was an examination of his heart and vascular system, and a psychiatric evaluation. Significantly, at the time of service separation, no pertinent diagnoses were noted. In point of fact, the earliest clinical indication of the potential presence of an acquired psychiatric disorder is revealed by VA records dated in February 2008, almost 8 years following when the Veteran's discharge from service, at which time there was noted a past medical history of dysthymia, rule out attention deficit hyperactivity disorder. Significantly, while since the time of the Veteran's discharge from service, he has received diagnoses of "rule out" an adjustment disorder, as well as "provisional" adjustment disorder with mild depressive symptomatology, at no time has such pathology been in any way linked to his period of active military service. Moreover, following a VA psychological examination in April 2009, which examination, it should be noted, involved a full review of the Veteran's claims folder and medical records, it was the opinion of the examining psychologist that the Veteran did not suffer from an acquired psychiatric disorder, and might, in fact, be malingering. Significantly, VA respiratory and cardiovascular examinations conducted at that same time showed no evidence of any chronic respiratory disorder, or of a chronic disorder characterized by chest tightness and a loss of blood circulation. The Board finds the aforementioned opinions/conclusions of various VA examiners highly probative, because those opinions/conclusions were based upon a review of the Veteran's entire claims folder, as well as other pertinent medical records, and full examinations, including both history and clinical findings. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion are the examiner's access to the claims file, and the thoroughness and detail of the opinion). The VA examiners reviewed the Veteran's claims folder, discussed the Veteran's medical history, provided well-reasoned medical opinions/conclusions, and alluded to the evidence which supported those opinions/conclusions. See Hernandez-Toyens v. West, supra. Under the circumstances, the Board is of the opinion that the probative medical evidence of record fails to establish that the Veteran suffers from an acquired psychiatric disorder related to his period of active military service. Nor is there persuasive evidence that the Veteran suffers from a chronic, clinically identifiable respiratory and/or circulatory disorder. In evaluating the Veteran's claims, the Board has a duty to assess the credibility and weight to be given to the evidence of record. See Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). In that regard, the Veteran has attributed the disabilities in question to his period of active military service. However, not until March 2008, approximately 8 years following his discharge from service, did the Veteran file claims for service connection for any of those disabilities. As noted above, there is no evidence that the Veteran currently suffers from a clinically-identifiable respiratory disorder. Nor is there evidence that the Veteran suffers from a disorder characterized by chest tightness and the loss of blood circulation. To the extent the Veteran does, in fact, suffer from an acquired psychiatric disorder, pertinent evidence of record is to the effect that any such pathology is unrelated to the Veteran's period of active military service. Significantly, the passage of many years between discharge from service and medical documentation of a claimed disability is a factor which tends to weigh against a claim for service connection. See Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In the case at hand, to the extent the Veteran does, in fact, suffer from an acquired psychiatric disorder, there is no persuasive evidence suggesting a link between that disorder and the Veteran's period of active military service. The Board acknowledges the Veteran's statements, as well as those of various family members, regarding the origin of the disabilities at issue. However, the Board rejects those assertions to the extent that they seek to etiologically relate the Veteran's acquired psychiatric disorder, and claimed respiratory and/or circulatory disorders, with any incident or incidents of his period of active military service. Those statements and history, when weighed against the objective evidence of record, are neither credible, nor of particular probative value. Moreover, the Veteran and his family members, as lay persons, are not competent to create the requisite causal nexus for the disabilities at issue. Rather, evidence which requires medical knowledge must be provided by someone qualified as an expert by knowledge, skill, experience, training, or education, none of which the Veteran (or his family members) possess. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Based on the aforementioned, the Board is unable to reasonably associate the Veteran's acquired psychiatric disorder, to the extent such a disorder exists, or his claimed respiratory and/or circulatory disorders, with any incident or incidents of his period of active military service. Accordingly, his claims for service connection must be denied. ORDER Entitlement to service connection for a chronic respiratory disorder, to include bronchitis, also claimed as inflammation of the windpipe, is denied. Entitlement to service connection for a disorder characterized by chest tightness, with a loss of blood circulation, is denied. Entitlement to service connection for an acquired psychiatric disorder, claimed as adjustment disorder, dysthymic disorder, and/or anxiety, is denied. REMAND In addition to the above, the Veteran seeks entitlement to service connection for bilateral pes planus with plantar fasciitis, also claimed as flat feet/plantar fascial fibromatosis. However, a review of the record raises some question as to the exact nature and etiology of that particular disability. In that regard, at the time of a service entrance examination in March 1996, the Veteran's feet were described as within normal limits. Nonetheless, shortly thereafter, in July 1996, the Veteran indicated that, during boot camp, he had either sustained an injury and/or experienced pain in the arch of his foot. Significantly, as of the time of a service separation examination in March 2000, there was noted a history of right foot pain consistent with plantar fasciitis. A physical examination of the Veteran's feet conducted at that time was consistent with the presence of pes planus, for which it was recommended that the Veteran receive orthotics. The Board observes that, since the time of the Veteran's discharge from service; he has received continuing treatment for pes planus and plantar fasciitis. While following a VA foot examination in April 2009, there was noted the presence of bilateral pes planus, as well as plantar fasciitis of the right foot, no opinion was offered regarding the relationship, if any, between those disabilities and the Veteran's period of active military service. Such an opinion is necessary prior to a final adjudication of the Veteran's claim for service connection. Accordingly, in light of the aforementioned, the case is REMANDED to the RO/AMC for the following actions: 1. Any pertinent VA or other inpatient or outpatient treatment records, subsequent to April 2009, the date of the most recent VA examination of record, must be obtained and incorporated in the claims folder. The Veteran should be requested to sign the necessary authorization for release of any private medical records to the VA. All attempts to procure such records should be documented in the file. If the RO/AMC cannot obtain records identified by the Veteran, a notation to that effect should be included in the claims file. In addition, the Veteran and his representative should be informed of any such problem. 2. The Veteran should then be afforded a VA podiatric examination in order to more accurately determine the exact nature and etiology of his current foot disability. The Veteran is hereby notified that it is his responsibility to report for the examination, and to cooperate in the development of his claim. The Veteran is further to be advised that the consequences for failure to report for a VA examination without good cause may include denial of his claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to his last known address. It should also be indicated whether any notice sent was returned as undeliverable. Following completion of the examination, the examining podiatrist should specifically comment as to whether any chronic, clinically-identifiable foot disability (to include pes planus and/or plantar fasciitis) at least as likely as not had its origin during, or is in some way the result of, the Veteran's period of active military service. A complete rationale must be provided for any opinion offered, and all information and opinions, once obtained, must be made a part of the Veteran's claims folder. The claims folder must be made available to and reviewed by the examiner prior to completion of the examination. In addition, the examiner must specify in his report that the claims file and Virtual VA records have been reviewed. 3. The RO/AMC should then review the examination report to ensure that it is in complete compliance with the directives of this REMAND, and that the examiner has documented his consideration of all records contained in Virtual VA. If the report is deficient in any manner, the RO/AMC must implement corrective procedures. 4. The RO/AMC should then readjudicate the Veteran's claim for service connection for bilateral pes planus with plantar fasciitis, also claimed as flat feet/plantar fascial fibromatosis. Should the benefit sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case (SSOC). The SSOC must contain notice of all relevant action taken on the claim for benefits since the issuance of a Statement of the Case (SSOC) in January 2010. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome in this case. The Veteran need take no action unless otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. 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). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs