Citation Nr: 1334377	
Decision Date: 10/29/13    Archive Date: 11/06/13

DOCKET NO.  07-18 969	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES


1.  Whether new and material evidence has been received sufficient to reopen a previously denied claim for service connection for periodontal disease. 

2.  Entitlement to service connection for bilateral eye disability.

3.  Entitlement to service connection for Gulf War Syndrome.

4.  Entitlement to service connection for a bilateral foot disability other than hammertoes. 

5.  Entitlement to service connection for a right hand disability.

6.  Entitlement to service connection for left hand disability.  




REPRESENTATION

Appellant represented by:	Georgia Department of Veterans Services


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

L. J. Vecchiollo


INTRODUCTION

The Veteran served on active duty from June 1974 to July 1994.  In addition, the Veteran had approximately 7 months of prior active service. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2004 rating action of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. 

In December 2009, the Veteran testified at a hearing conducted at the RO before the undersigned Veterans Law Judge (VLJ).  A copy of the transcript of that hearing is of record. 

In a May 2010 decision, the Board found that new and material evidence sufficient to reopen the previously denied claim for service connection for hypertension and granted service connection for hypertension.  The Board also found that new and material evidence sufficient to reopen the previously denied claims for service connection for a low back disability, a bilateral foot disability other than hammertoes, a bilateral knee disability, and a right hand disability has been received.  The Board remanded the de novo issues of entitlement to service connection for these disabilities, as well as the claims for service connection for hammertoes, periodontal disease, a left hand disability, a bilateral wrist disability and all fingers, a psychiatric disability (to include posttraumatic stress disorder (PTSD)), Gulf War Syndrome, and a bilateral eye disorder.  

An October 2012 rating decision granted service connection for PTSD, chronic lumbar strain, left wrist strain and all fingers, right wrist strain and all fingers, left knee condition, right knee condition, hammer toes, left foot with calcaneal spur, and hammer toes, right foot with calcaneal spur.  The Veteran was notified of this decision and did not express dissatisfaction with the rating assigned or the effective date of service connection.  See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (indicating a veteran had to separately appeal these "downstream" issues regarding the ratings and effective dates assigned once this disability was granted service connection).

Therefore, the only claims remaining on appeal are whether new and material evidence has been received sufficient to reopen a previously denied claim for service connection for periodontal disease; and entitlement to service connection for a bilateral eye disability, Gulf War Syndrome, bilateral hand disability, and a bilateral foot disability other than hammertoes. 

The issue of entitlement to service connection for a bilateral foot disability other than hammertoes is addressed in the REMAND portion of the decision below and 
is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the Veteran if further action is required on his part.



FINDINGS OF FACT

1.  Service connection for periodontal disease was denied by the RO in February 1995; the Veteran did not submit a timely notice of disagreement, and new and material evidence was not received during the relevant appeal period.

2.  Evidence received since the February 1995 decision that denied service connection for periodontal disease does not relate to an unestablished fact 
necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim

3.  The Veteran's diagnosed eye conditions, bilateral astigmatism and presbyopia, left eye hyperopia, and right eye myopia, are congenital or developmental defects. 

4.  The probative evidence of record does not reflect the Veteran currently has any medically unexplained chronic multisymptom illness recognized by VA as related to Persian Gulf service.  The Veteran's complaints regarding his purported Gulf War Syndrome have otherwise been attributed to known clinical diagnoses that have been separately adjudicated by VA.

5.  There is no competent evidence indicating the presence of a current disability of either hand.


CONCLUSIONS OF LAW

1.  The additional evidence received since the February 1995 rating decision denying the Veteran's claim of service connection for periodontal disease is not new and material, and the claim is not reopened.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013).


2.  Bilateral astigmatism and presbyopia, left eye hyperopia, and right eye myopia are not diseases within the meaning of applicable legislation for disability compensation purposes.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303(c), 4.9 (2013).

3.  The requirements for service connection for Gulf War Syndrome are not met.  38 U.S.C.A. §§ 1110, 1117, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2013).

4.  The requirements for service connection for a right hand disability are not met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2013).

5.  The requirements for service connection for left hand disability are not met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013), requires VA to assist a claimant at the time that he files a claim for benefits.  As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).

In correspondence dated in January 2004 and May 2010, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013) and 38 C.F.R. § 3.159(b) (2013).  Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claims; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide.  He was also notified of the process by which initial disability ratings and effective dates are established.  Dingess v. Nicholson, 19 Vet. App. 473 (2006). 

The May 2010 correspondence also provided the Veteran with notice of what evidence and information was necessary to reopen his previously denied claim of service connection for periodontal disease and to establish entitlement to the underlying claim for the benefits sought on appeal.  See Kent v. Nicholson, 20 Vet. App. 1 (2006).  The letter also advised him of the basis for the prior denial.

VA has done everything reasonably possible to assist the Veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002 & Supp. 2013) and 38 C.F.R. § 3.159(c) (2013).  

VA has obtained service treatment records (STRs), assisted the appellant in obtaining evidence, and afforded the appellant the opportunity to give testimony before the Board.  The Veteran has been medically evaluated in conjunction with his eye, Gulf War Syndrome, and bilateral hand claims.  In the absence of new and material evidence, VA is not required to provide an examination to a claimant attempting to reopen a previously disallowed claim.  Paralyzed Veterans of America, 345 F.3d 1334 (Fed. Cir. 2003).  All known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise.  

The Veteran was afforded a hearing before the Board.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked.  Here, the VLJ identified the issues to the Veteran, the Veteran volunteered his treatment history, and the VLJ and the Veteran's representative asked questions directed at identifying whether the Veteran met the criteria for service connection.  Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the Board hearing.   The hearing focused on the elements necessary to substantiate the claims, and the Veteran provided testimony relevant to those elements.  As such, the Board finds that no further action pursuant to Bryant is necessary, and the Veteran is not prejudiced by a decision at this time.

The Board further observes that this case was remanded in May 2010 to provide the Veteran with notice consistent with Kent regarding whether new and material evidence had been received to reopen his dental claim, and to obtain additional treatment records related to his bilateral eye disability, Gulf War Syndrome, and hands.  Treatment records were requested, and VA examinations conducted.  The agency of original jurisdiction has substantially complied with the May 2010 remand directives such that no further action is necessary in this regard.  See D'Aries v. Peake, 22 Vet. App. 97, 104 -05 (2008); Stegall v. West, 11 Vet. App. 268 (1998).

In sum, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandates of the VCAA. 

II.  Analysis

In adjudicating the claims below, the Board has reviewed all of the evidence in the record.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all 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 claims and what the evidence in the claims file shows, or fails to show, with respect to the claims.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).  

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, 1131; 38 C.F.R. § 3.303.  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).

Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury.  See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).  

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b) (West 2002). 

A.  Claim to Reopen

Disability compensation and VA outpatient dental treatment may be provided for certain specified types of service-connected dental disorders.  For other types of service-connected dental disorders, the claimant may receive treatment only and not compensation.  38 U.S.C.A. § 1712; 38 C.F.R. §§ 3.381, 4.150, 17.161.  Dental disabilities that may be awarded compensable disability ratings are set forth under 38 C.F.R. § 4.150.  These disabilities include chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible, loss of the mandible, nonunion or malunion of the mandible, limited temporomandibular motion, loss of the ramus, loss of the condyloid or coronoid processes, loss of the hard palate, loss of teeth due to the loss of substance of the body of the maxilla or mandible and where the lost masticatory surface cannot be restored by suitable prosthesis, when the bone loss is a result of trauma or disease but not the result of periodontal disease.  38 C.F.R. § 4.150, Diagnostic Codes 9900-9916.

Under 38 C.F.R. § 3.381, treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal diseases are to be considered service-connected only for the purpose of establishing eligibility for outpatient dental treatment as provided in 38 C.F.R. § 17.161.

The Veteran initially filed a claim of entitlement to service connection for periodontal disease in February 1995.  The February 1995 rating decision denied the claim of service connection for a periodontal disease because it is not a condition for which VA disability benefits could be paid.  At the time of the rating decision, the evidence of record included the Veteran's available service treatment records which showed treatment for periodontal disease.  The RO also informed 
the Veteran that a copy of this decision was being sent to a VA medical facility regarding his eligibility for VA outpatient dental treatment.  See Mays v. Brown, 5 Vet. App. 302, 306 (1993) (a claim of service connection for a dental disorder is also considered a claim for VA outpatient dental treatment).

The Veteran did not file a notice of disagreement with the February 1995 rating decision and no additional evidence pertinent to the issue was associated with the claims folder within one year of the rating decision.  See 38 C.F.R. § 3.156(b) (2013); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010).  Thus, the February 1995 rating decision became final.  38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. § 20.1103 (2013).  

The Veteran filed his petition to reopen the claim in January 2004.  He asserts that because of his rotations in service, his periodontal disease was not properly and completely treated and resolved in service.  He also noted that superiors and 
others were given preferential treatment, and he was not scheduled for adequate periodontal treatment in service.  He requests service connection for periodontal disease.  

There must be new and material evidence subsequent to the last final denial to reopen a service connection claim and warrant further consideration on a de novo basis.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156; see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).  When determining whether evidence is new and material, the "credibility of the evidence is to be presumed."  Justus v. Principi, 3 Vet. App. 510, 513 (1992). 

"New" evidence is evidence not previously submitted to agency decision makers and "material" evidence as evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  38 C.F.R. § 3.156(a).  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  Id.  When determining whether evidence is new and material, the "credibility of the evidence is to be presumed."  Justus v. Principi, 3 Vet. App. 510, 513 (1992). 

In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the United States Court of Appeals for Veterans Claims (Court) stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim.  Id. at 118.  Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim.  Id. 

The Board finds that new and material evidence has not been submitted to reopen the claim of entitlement to service connection for periodontal disease. 

While additional post-service dental treatment records noting ongoing treatment for periodontal disease were associated with the claims file are not duplicative of previous evidence and are new, they are not material.  They do not show that the Veteran sustained an injury to the mouth or teeth during service, or that the Veteran has manifested a dental condition for which service-connected compensation benefits are available are set forth under 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916.  The Veteran has not been diagnosed with any such disability set forth in 38 C.F.R. § 4.150, such as chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible, loss of the mandible, nonunion and malunion of the mandible or maxilla, temporomandibular articulation or limited jaw motion, loss of the ramus, loss of the condyloid process, or loss of the hard palate.  

The Board has considered the Veteran's numerous statements as to the nature and etiology of his asserted periodontal disease.  However, such statements are repetitive of previous statements that he continues to suffer from periodontal disease since service and were previously considered by the RO; thus, they are merely cumulative and not new and material evidence.  Accordingly, the claim is not reopened and the appeal is denied. 

B.  Bilateral Eye Disability

The Veteran testified that a shell from an M-16 rifle struck his left eye which made the eye bloodshot.  See hearing transcript (T.) at 24.  He stated that he realized his vision was no longer 20/20 after that injury.  He noted that a military physician wanted to refer him for "big military glasses" but he did not want to wear them.  He testified that his left eye gets blurry at times.  T. at 25.  He also noted that, after this injury, his right eye "shifts" at times.  T. at 25-26.  He did not seek treatment for these problems after service due to the high cost of medical care.  

The Veteran's service treatment records (STRs) noted 20/20 vision on his entrance examination in 1969. In July 1986, he complained of a history of bilateral eye irritation.  The diagnosis was conjunctivitis, doubt allergy origin.  Vision at that time was 20/20 bilaterally.  An eye consultation in January 1990 noted the Veteran reporting problems with near vision.  It was noted that he had not worn glasses.  Right eye vision both near and far was 20/20.  Left eye vision was 20/25 far and 20/40 near.  He was diagnosed with hyperopia and given glasses.  On the medical history section of his service retirement physical in March 1994, he indicated he has or had eye trouble.  Eye examination at that time was normal, and his best corrected distance visual acuity was 20/20, bilaterally.  

A VA examination was conducted in June 2004.  He denied any history of ocular surgery, lasers, or injury.  His best corrected distance visual acuity was 20/20, bilaterally.  The diagnoses were bilateral astigmatism and presbyopia, left eye hyperopia, and right eye myopia. 

Congenital or developmental defects are not diseases or injuries within the meaning of applicable legislation.  38 C.F.R. § 3.303(c).  In the absence of superimposed disease or injury, service connection may not be allowed for refractive error of the eyes, including myopia, presbyopia, hyperopia and astigmatism, even if visual acuity decreased in service, as this is not a disease or injury within the meaning of applicable legislation relating to service connection.  38 C.F.R. §§ 3.303(c), 4.9; 
see also M21-MR, Part III, Subpart iv, Chapter 4, Section B.10.d (noting that astigmatism, myopia, hyperopia, and presbyopia are examples of refractive errors). 

Here, the Veteran's currently diagnosed eye disorders are congenital or developmental defects and his STRs reveal no injury to the eye.  The conjunctivitis treated in 1986 resolved with no further findings or complaints.    

While the Veteran alleges he suffered an eye injury during service, the Board finds the service treatment records revealing no treatment or findings of such, despite his being seen for other eye complaints, is more probative than his assertion for the purposes of obtaining compensation.  See AZ v. Shinseki, No.2012-7046, 2013 WL 5420978, at *9-11 (Fed. Cir. Sept. 30, 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present).  Moreover, his contention during his hearing that he suffered an eye injury is contradicted by his denial of an eye injury to the VA examiner in June 2004.  Thus, the Board finds such assertion is not credible.  See Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006) (the lack of contemporaneous medical records, the significant time delay between the affiants' 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).  

To the extent the Veteran asserts that his eye disorders are related to service, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion.  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).  Accordingly, his opinion as to the diagnosis of eye disorders is not competent medical evidence, as such questions require medical expertise to determine.  Here, the medical evidence demonstrates that the Veteran's current eye disabilities are refractive errors, which are not disabilities for VA compensation purposes.  The Board finds the medical evidence to be of greater probative value than the Veteran's lay contentions.  

For the reasons set forth above, the Board finds that service connection for bilateral astigmatism and presbyopia, left eye hyperopia, and right eye myopia is not warranted, as these conditions are refractive errors and not considered diseases or injuries within the meaning of the law.  38 C.F.R. § 3.303(c).   

In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal.  See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).

C.  Gulf War Syndrome

At his hearing, the Veteran testified that he was unsure whether his depression, anxiety, and flashbacks to his experiences while serving in the Persian Gulf were symptoms of Gulf War Syndrome.  T. at 22.  He testified that he was unsure whether the examiner who conducted his June 2004 VA Gulf War Guidelines examination mentioned that he had any conditions related to service in the Persian Gulf.  

The Board observes that VA does not specifically recognize a disability of "Gulf War Syndrome."  However, various legal provisions apply specifically to compensation claims from Persian Gulf War veterans.  Except as provided in 38 C.F.R. § 3.317(c), VA shall pay compensation in accordance with Chapter 11 of Title 38, United States Code, to a Persian Gulf veteran who exhibits objective indications of chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed in 38 C.F.R. § 3.317(b), provided that such disability: (i) became manifest either during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016; and (ii) by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis.  38 C.F.R. § 3.317(a)(1)(i) and (ii) (except as to delimiting date). 

For purposes of 38 C.F.R. § 3.317, "objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification.  38 C.F.R. § 3.317(a)(3). 

For purposes of 38 C.F.R. § 3.317, disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic.  The 6-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest.  38 C.F.R. § 3.317(a). 

In addition to certain chronic disabilities from undiagnosed illness, service connection may also be given for medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs and symptoms, as well as for any diagnosed illness that the VA Secretary determines by regulation warrants a presumption of service connection.  38 C.F.R. § 3.317(a).

Despite the foregoing, as chronic fatigue syndrome and other chronic multisymptom illnesses recognized by 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 involve complex medical issues, competent medical evidence is required to diagnose such conditions.  Moreover, the Board notes that while these provisions do recognize fatigue as being among the type of unexplained signs or symptoms for which service connection may be established, the regulations also define signs as involving objective evidence perceptible to an examining physician.  Thus, competent medical evidence is required and the Veteran's lay contentions are not a competent medical opinion on this medical question. 

A thorough review of the probative evidence of record, to include the June 2004 Gulf War Guidelines examination, does not reflect the Veteran currently has any medically unexplained chronic multisymptom illness recognized by VA as related to Persian Gulf service. 

Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.  See 38 U.S.C. §§ 1110, 1131; and see Brammer v. Derwinski, 3 Vet. App. 223 (1992).  In Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997), it was observed that 38 U.S.C.A § 1131, as well as other relevant statutes, only permitted payment for disabilities existing on and after the date of application for such disorders.  The Federal Circuit observed that the structure of these statutes "provided strong evidence of congressional intent to restrict compensation to only presently existing conditions," and VA's interpretation of the law requiring a present disability for a grant of service connection was consistent with the statutory scheme.  Degmetich, 104 F.3d at 1332; and see Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (holding VA's interpretation of the provisions of 38 U.S.C.A § 1110 to require evidence of a present disability to be consistent with congressional intent); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (The law limits entitlement for service-related diseases and injuries to cases where the underlying in-service incident has resulted in a disability).  Simply put, in the absence of proof of present disability there can be no valid claim. 

The Board acknowledges that the Court held in McLain v. Nicholson, 21 Vet. App. 319 (2007) that the requirement that a claimant have a current disability before service connection may be awarded for that disability is also satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claim's adjudication.  In this case, however, the record does not reflect the Veteran has had any chronic multisymptom illness at any time during the pendency of this case.  Indeed, no such condition was identified on the June 2004 Gulf War Guidelines examination, and the other medical evidence of record fails to show that the Veteran has been diagnosed with any chronic multisymptom illness. 

The June 2004 Gulf War Guidelines examination diagnosed PTSD and multiple musculoskeletal conditions, all of which are known clinical diagnoses.  All diagnosed conditions, except for pes planus which is the subject of the remand portion of this decision, are already service connected.  

In light of the above, the Board finds that service connection is not warranted for the claimed Gulf War Syndrome pursuant to the provisions of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317.  Inasmuch as the record does not establish he currently has the claimed disability, no other basis for service connection needs to be considered at this time.

In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal.  See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).

D.  Bilateral Hand Disability

As a preliminary matter, the Veteran is already in receipt of service connection for disabilities of the bilateral wrists and all fingers.  Therefore, symptomatology related to the bilateral wrists and fingers will not be discussed.  

The Veteran's STRs note that he reported having cramps in both hands in June 1994 and was referred to Orthopedics.  There was no evidence showing any further treatment for this condition.  

VA treatment records are silent for any complaints or findings pertaining to the hands.

On the VA examination in June 2004, both hands had normal muscle and grip strength of 5/5, and x-rays of the hands and wrists were normal.  There was no diagnosed hand condition.  

On June 2011 VA examination, the examiner stated that no hand condition was found on examination, therefore, no etiology opinion could be made.  

The Board notes that the Veteran is competent to report his own symptoms (i.e., hand pain), or matters within his personal knowledge.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006).  However, matters of medical diagnosis and etiology for disability not capable of lay observation are matters within the province of trained medical professionals.  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).  

Here, the foregoing evidence does not indicate that the Veteran has had, at any point pertinent to this appeal, a diagnosed hand disability.  Rather, the evidence indicates no more than the Veteran's own complaints of hand pain.  However, pain alone, without a diagnosed or identifiable underlying malady or condition, does not constitute a disability for which service connection can be granted.  Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), vacated in part and remanded on other grounds sub. nom. Sanchez-Benitez v. Principi, 239 F. 3d 1356 (Fed. Cir. 2001); see Evans v. West, 12 Vet. App. 22 (1998).  As the Veteran is not shown to possess medical training and expertise to competently render a diagnosis of a hand disability, or to opine as to the etiology of any such disability, his statements regarding the presence of a current hand disability are not competent medical evidence.

Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.  See 38 U.S.C.A. §§ 1110; 1131.  In the absence of proof of present disability there can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997) (38 U.S.C.A. § 1131 requires existence of present disability for VA compensation purposes); see also Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996). 

As indicated, the medical evidence currently of record indicates that the Veteran does not have a current hand disability underlying his complaints of pain, and neither he nor his representative has presented or identified any contrary medical evidence or opinion that in fact, supports a finding of a current disability.  The first element of service connection in any case is whether a current hand disability exists.  Only after such is shown does the question of service incurrence or aggravation arise.  In this case, as there is no competent evidence of a current hand disability, there is no basis upon which to establish service connection.  Accordingly, the claim for service connection for disabilities of the hands must be denied.  See Degmetich, 104 F.3d at 1328. 

In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable in the instant appeal.  See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).


ORDER

As new and material evidence has not been submitted, the claim of entitlement to service connection for periodontal disease is not reopened and the appeal is denied. 

Entitlement to service connection for a bilateral eye condition is denied.

Entitlement to service connection for Gulf War Syndrome is denied.

Entitlement to service connection for a right hand disability is denied.

Entitlement to service connection for a left hand disability is denied.



REMAND

The Board remanded the Veteran's foot disability claim to obtain an opinion as to whether his pre-existing pes planus was aggravated (permanently worsened beyond its natural progression) by the Veteran's active service.  

A pre-existing disease or injury will be found to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability.  Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a).  Evidence of the veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation.  Green v. Derwinski, 1 Vet. App. 320, 323 (1991).  If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service.  Verdon v. Brown, 8 Vet. App. 529 (1996).

However, the examiner who conducted the June 2011 VA examination stated that he was unable to provide an opinion on aggravation of the symptoms without resorting to mere speculation.  In an undated addendum, the examiner stated that the Veteran's pes planus was at least as likely as not related to service.  The Board notes that the Veteran's pes planus pre-existed his period of service and therefore, this conclusion is if no probative value.  

The Court in the case of Jones v. Shinseki, 23 Vet. App. 382 (2010), acknowledged there are instances where a definitive opinion cannot be provided because required information is missing or can no longer be obtained or current medical knowledge yields multiple possible etiologies with none more likely than not the cause of the claimed disability.  See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (noting the Board need not obtain further medical evidence where the medical evidence "indicates that determining the cause is speculative").  The Court in Jones held, 

however, that to rely upon a statement that an opinion cannot be provided without resort to mere speculation, it must be clear that the procurable and assembled data was fully considered and the basis for the opinion must be provided by the examiner or apparent upon a review of the record.  In the current case, the examiner does not indicate whether it is a lack of evidence or limits of medical knowledge which caused the examiner to be unable to provide an opinion without resort to speculation.  As a result, the Board finds that an additional opinion from a 
podiatrist would aid in addressing this claim. 

Relevant ongoing medical records should also be requested.  38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim).

Accordingly, the case is REMANDED for the following action:

1.  Ask the Veteran to provide the names and addresses of all medical care providers, both VA and private, who have recently treated him for his pes planus.  After securing the necessary release, the RO/AMC should request any relevant records identified that are not duplicates of those already contained in the claims file.  If any requested records are not available, the Veteran should be notified of such.  

2.  Send the claims files to a VA podiatrist for review and to obtain an opinion concerning whether the Veteran's pre-existing pes planus was aggravated by service.  If a new examination is deemed necessary, one should be scheduled.  


Following review of the claims file, the examiner should express an opinion as to whether this pre-existing pes planus was permanently worsened beyond its natural progression (aggravated) by the Veteran's active service.  The examiner should note that a temporary exacerbation of symptoms, as opposed to actual worsening of the pes planus, does not constitute aggravation. 

If the examiner concludes the pes planus was aggravated beyond natural progression during service, the examiner should opine whether a current foot disability other than hammertoes is related to the in-service aggravation of the pes planus.  

If the examiner cannot provide the above opinion without resorting to speculation, the examiner should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.).

3.  After undertaking the development above and any additional development deemed necessary, the appellant's claim for entitlement to service connection for a bilateral foot disability other than hammer toes should be readjudicated.  If the benefit sought on appeal remains denied, provide a Supplemental Statement of the Case and provide an appropriate period of time in which to respond.  Then, return the appeal to the Board, if in order.

The appellant has the right to submit additional evidence and argument on the matter 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).




______________________________________________
K. A. BANFIELD 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs