Citation Nr: 1334895 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 07-26 955 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a bilateral foot disability. 2. Entitlement to service connection for diabetes mellitus. 3. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION Please note that this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran had active service from May 1956 to September 1957. This matter came before the Board of Veterans' Appeals (Board) from a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In March 2011 the Board denied service connection for a right knee disability and high cholesterol, and declined to reopen a claim of entitlement to service connection for a left knee disability. The issues listed above were remanded for additional development of the record. Upon completion of that development, the appeal was returned to the Board. FINDINGS OF FACT 1. A bilateral foot disability was not manifest in service and arthritis of the feet was not manifest within one year following separation from service; a bilateral foot disability is unrelated to service. 2. Diabetes was not manifest in service or within one year following separation from service, and is unrelated to service. 3. Hypertension was not manifest in service or within one year following separation from service, and is unrelated to service. CONCLUSIONS OF LAW 1. A bilateral foot disability was not incurred in or aggravated by service, and arthritis of the feet may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 2. Diabetes was not incurred in or aggravated by service, and may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 3. Hypertension was not incurred in or aggravated by service, may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the 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. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. A letter dated in March 2005 discussed the evidence necessary to support a claim for service connection. The evidence of record was listed and the Veteran was informed of the allocation of responsibilities between himself and VA. The Veteran was also advised of the manner in which VA determines disability ratings and effective dates. Subsequent letters advised the Veteran of the status of his claim. The Board finds that the content of the notice fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The appellant has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his claim. With respect to VA's duty to assist, VA and private treatment records have been obtained and associated with the record. VA examinations have been conducted. The Board finds that the examination reports are adequate, in that the examinations were conducted by a clinician who reviewed the record, interviewed the Veteran, and performed appropriate physical examinations. The Veteran has not otherwise identified any additional available evidence or information which could be obtained to substantiate the claim. The Board is also unaware of any such outstanding evidence or information. Therefore, the Board is also satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations. For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. Analysis Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a claimant must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service incurrence or aggravation of arthritis, cardiovascular renal disease, or diabetes may be presumed to have been incurred or aggravated if it is manifested to a compensable degree within a year of the Veteran's discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). When there is an approximate balance of positive and negative 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). Bilateral Foot Disability Service treatment records are negative for any diagnosis, complaint, or abnormal finding pertaining to the Veteran's feet. On separation examination in August 1957 the Veteran denied foot trouble. His feet were normal on clinical examination. Subsequently in August 1957, a physician certified that the Veteran was given a physical and mental evaluation and opined that the Veteran was physically sound with no condition warranting discharge under the provisions of regulations pertaining to separation for physical disability. In September 1957 the Veteran certified that there had been no change in his physical condition since his August 1957 physical examination. On VA examination in March 1961, the Veteran had no complaints referable to his feet. The examiner noted third degree pes planus. A December 2005 VA treatment record notes claw toes and bunions. Pedal pulses were diminished or absent. In his February 2006 claim, the Veteran indicated that his foot problems began in 1962. Mycotic nails are noted in an August 2008 VA treatment record. On VA examination in April 2011, the Veteran's history was reviewed. He indicated that he was exposed to severe cold in Germany and that onset of his claimed foot disability was in 1960. The examiner noted that the Veteran was a poor historian and that he was unable to obtain an adequate history. Following examination, the diagnoses were bilateral degenerative joint disease, hammertoes, and hallux valgus. The examiner opined that pes planus, hammertoes, hallux valgus, claw toes, bunions, and degenerative joint disease were less likely as not caused by or result of service. He reasoned that the claims file did not mention a foot condition or treatment for a foot condition in service. He noted that the Veteran had worked at a cotton mill, possibly long hours or standing, resulting in degenerative joint disease and bunions which could in turn result in hallux valgus. He concluded that he was unable to correlate the foot conditions with military service. Upon careful consideration of the foregoing evidence, the Board concludes that service connection is not warranted for a bilateral foot disability. While the evidence reveals that the Veteran has diagnoses referable to his feet, the most competent and probative evidence of record does not etiologically link any such diagnosis to service or any incident therein. In this regard, the Board observes that the March 1961 VA examiner diagnosed third degree pes planus. However, this diagnosis was rendered more than three years following the Veteran's separation from service, and the other diagnoses referable to the Veteran's feet were not noted until decades following his service separation. Moreover, at the time of diagnosis of pes planus in 1961, the Veteran's feet were asymptomatic. The Board may, and will, consider in its assessment of a service connection claim the passage of a lengthy period of time wherein the Veteran has not complained of the malady at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. Principi, 284 F.3d 1335, 1358 (Feb. Cir. 2002) (en banc). The April 2011 VA examiner concluded that the bilateral foot diagnoses are not related to service. Rather, he attributed the Veteran's foot complaints to his employment in a cotton mill. He provided a reasoned opinion based on a complete review of the Veteran's available history, interview, and examination. In assigning high probative value to this opinion, the Board notes that the examiner reviewed the record, attempted to obtain a history from the Veteran, and conducted a complete examination. There is no indication that the examiner was not fully aware of the Veteran's documented past medical history or that he misstated any relevant fact. The Board thus finds the examiner's opinion to be of greater probative value than the Veteran's assertions to the contrary. The Board also acknowledges the Veteran's own assertions that his current bilateral foot disability is related to service, to include exposure to cold therein. The Veteran may attest to factual matters of which he has first-hand knowledge, such as subjective complaints, and his assertions in that regard are entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). He is competent to report incidents in service and symptoms since then. He is not, however, competent to render an opinion as to the cause or etiology of the currently diagnosed foot disability because he does not have the requisite medical knowledge or training, and because such matters are beyond the ability of a lay person to observe. See Rucker v. Brown, 10 Vet. App. 67, 71 (1997). As discussed, the VA examiner considered the Veteran's documented history, but ultimately concluded that the current bilateral foot disability is not related to service. The Board finds the most probative evidence of record to be this opinion by the competent VA health care provider. Even if the Veteran's statements asserting that his bilateral foot disability is related to service were found to be competent, credible and probative, they are still outweighed by the examiner's opinion. The opinion was provided by a medical professional who reviewed the history, interviewed the Veteran, and provided opinions supported by rationale. In summary, no medical professional has attributed the Veteran's current bilateral foot disability to service. In that regard, the Board places much more weight on the opinion of the competent VA health care providers who conducted physical examination and reviewed the record, than on the Veteran's assertions that his current bilateral foot disability is related to service. The grant of service connection requires competent evidence to establish a diagnosis and, as in this case, relate the diagnosis to the Veteran's service. While the record contains diagnoses referable to the Veteran's feet, the preponderance of the evidence is against finding that these diagnoses are related to any injury or disease in service. The Board finds that the negative record at service discharge and for years following service is more probative than the Veteran's more recent statements. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Absent credible and competent lay or medical evidence relating this claimed disability to service, the Board concludes that the claim of entitlement to service connection must be denied. The preponderance of the evidence is against the Veteran's claim and the doctrine of reasonable doubt is not applicable in the instant appeal. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990); 38 C.F.R. § 3.102 (2013). Diabetes Service treatment records are negative for any diagnosis, complaint, or abnormal finding suggestive of diabetes. On separation examination in August 1957 the Veteran denied sugar or albumin in his urine. Urinalysis was normal on clinical examination. Subsequently in August 1957, a physician certified that the Veteran was given a physical and mental evaluation and opined that the Veteran was physically sound with no condition warranting discharge under the provisions of regulations pertaining to separation for physical disability. In September 1957 the Veteran certified that there had been no change in his physical condition since his August 1957 physical examination. A private treatment record dated in May 1993 indicates diabetes mellitus. Subsequent records from this provider also indicate diabetes. In his February 2006 claim, the Veteran indicated that diabetes began in 1990. A VA problem list dated in November 2006 indicates that diabetes mellitus type II was assessed in February 2002. On VA examination in April 2011, the examiner noted that onset of diabetes mellitus was in 2000. He also noted that the Veteran was a poor historian. Following examination, the diagnosis was diabetes mellitus. The examiner opined that diabetes mellitus was not caused by or a result of service. He reasoned that there was no mention of diabetes mellitus in the service records, and that there was no treatment for diabetes while the Veteran was on active duty. Upon careful consideration of the foregoing evidence, the Board concludes that service connection is not warranted for diabetes mellitus. While the evidence reveals that the Veteran has a diagnosis of diabetes, the most competent and probative evidence of record does not etiologically link any such diagnosis to service or any incident therein. In this regard, the Board observes that the first diagnosis of diabetes noted in the record dates to 1993, many years following the Veteran's 1957 discharge from service. The Board may, and will, consider in its assessment of a service connection claim the passage of a lengthy period of time wherein the Veteran has not complained of the malady at issue. See Maxson, Forshey. The April 2011 VA examiner concluded that diabetes mellitus is not related to service. He provided a reasoned opinion based on a complete review of the Veteran's available history, interview, and examination. In assigning high probative value to this opinion, the Board notes that the examiner reviewed the record, attempted to obtain a history from the Veteran, and conducted a complete examination. There is no indication that the examiner was not fully aware of the Veteran's documented past medical history or that he misstated any relevant fact. The Board thus finds the examiner's opinion to be of greater probative value than the Veteran's assertions to the contrary. The Board also acknowledges the Veteran's own assertions that diabetes is related to service. The Veteran may attest to factual matters of which he has first-hand knowledge, such as subjective complaints, and his assertions in that regard are entitled to some probative weight. See Washington. He is competent to report incidents in service and symptoms since then. He is not, however, competent to render an opinion as to the cause or etiology of the currently diagnosed diabetes because he does not have the requisite medical knowledge or training, and because such matters are beyond the ability of a lay person to observe. See Rucker. As discussed, the VA examiner considered the Veteran's documented history, but ultimately concluded that the current diabetes is not related to service. The Board finds the most probative evidence of record to be this opinion by the competent VA health care provider. Even if the Veteran's statements asserting that his diabetes is related to service were found to be competent, credible and probative, they are still outweighed by the examiner's opinion. The opinion was provided by a medical professional who reviewed the history, interviewed the Veteran, and provided opinions supported by rationale. In summary, no medical professional has attributed the Veteran's current diabetes to service. In that regard, the Board places much more weight on the opinion of the competent VA health care providers who conducted physical examination and reviewed the record, than on the Veteran's assertions that his current diabetes is related to service. The grant of service connection requires competent evidence to establish a diagnosis and, as in this case, relate the diagnosis to the Veteran's service. While the record contains a diagnosis of diabetes, the preponderance of the evidence is against finding that this diagnosed disability is related to any injury or disease in service. The Board finds that the negative record at service discharge and for years following service is more probative than the Veteran's more recent statements. See Jandreau. Absent credible and competent lay or medical evidence relating this claimed disability to service, the Board concludes that the claim of entitlement to service connection must be denied. The preponderance of the evidence is against the Veteran's claim and the doctrine of reasonable doubt is not applicable in the instant appeal. Gilbert; 38 C.F.R. § 3.102 (2013). Hypertension Service treatment records are negative for any diagnosis, complaint, or abnormal finding suggestive of hypertension. On separation examination in August 1957 the Veteran denied high or low blood pressure. His heart and vascular system were normal on clinical examination, and his blood pressure was 92/74. Subsequently in August 1957, a physician certified that the Veteran was given a physical and mental evaluation and opined that the Veteran was physically sound with no condition warranting discharge under the provisions of regulations pertaining to separation for physical disability. In September 1957 the Veteran certified that there had been no change in his physical condition since his August 1957 physical examination. On VA examination in March 1961, the Veteran's heart was normal. His blood pressure was 134/88. A diagnosis of hypertension was not recorded. A private treatment record dated in March 1990 indicates an assessment of hypertension. In his February 2006 claim, the Veteran indicated that his hypertension began in 1960. A VA problem list dated in November 2006 indicates that hypertension was assessed in June 2000. On VA examination in April 2011, the examiner noted that onset of hypertension was in 1998. He indicated that the Veteran was a poor historian and that he was unable to obtain an adequate history. Following examination, the diagnosis was essential hypertension. The examiner opined that hypertension was not caused by or a result of service. He reasoned that there was no mention of hypertension in the service records, and that although the Veteran's blood pressure was mildly elevated at the time of enlistment, it was normal on separation. Upon careful consideration of the foregoing evidence, the Board concludes that service connection is not warranted for hypertension. While the evidence reveals that the Veteran has a diagnosis of hypertension, the most competent and probative evidence of record does not etiologically link any such diagnosis to service or any incident therein. In this regard, the Board observes that the first diagnosis of hypertension noted in the record dates to 1990, many years following the Veteran's 1957 discharge from service. The Board may, and will, consider in its assessment of a service connection claim the passage of a lengthy period of time wherein the Veteran has not complained of the malady at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson, Forshey. The April 2011 VA examiner concluded that hypertension is not related to service. He provided a reasoned opinion based on a complete review of the Veteran's available history, interview, and examination. In assigning high probative value to this opinion, the Board notes that the examiner reviewed the record, attempted to obtain a history from the Veteran, and conducted a complete examination. There is no indication that the examiner was not fully aware of the Veteran's documented past medical history or that he misstated any relevant fact. The Board thus finds the examiner's opinion to be of greater probative value than the Veteran's assertions to the contrary. The Board also acknowledges the Veteran's own assertions that hypertension is related to service. The Veteran may attest to factual matters of which he has first-hand knowledge, such as subjective complaints, and his assertions in that regard are entitled to some probative weight. See Washington. He is competent to report incidents in service and symptoms since then. He is not, however, competent to render an opinion as to the cause or etiology of the currently diagnosed hypertension because he does not have the requisite medical knowledge or training, and because such matters are beyond the ability of a lay person to observe. See Rucker. As discussed, the VA examiner considered the Veteran's documented history, but ultimately concluded that the current hypertension is not related to service. The Board finds the most probative evidence of record to be this opinion by the competent VA health care provider. Even if the Veteran's statements asserting that his hypertension is related to service were found to be competent, credible and probative, they are still outweighed by the examiner's opinion. The opinion was provided by a medical professional who reviewed the history, interviewed the Veteran, and provided opinions supported by rationale. In summary, no medical professional has attributed the Veteran's current hypertension to service. In that regard, the Board places much more weight on the opinion of the competent VA health care providers who conducted physical examination and reviewed the record, than on the Veteran's assertions that his current cervical spine disability is related to service. The grant of service connection requires competent evidence to establish a diagnosis and, as in this case, relate the diagnosis to the Veteran's service. While the record contains a diagnosis of hypertension, the preponderance of the evidence is against finding that this diagnosed disability is related to any injury or disease in service. The Board finds that the negative record at service discharge and for years following service is more probative than the Veteran's more recent statements. See Jandreau. Absent credible and competent lay or medical evidence relating this claimed disability to service, the Board concludes that the claim of entitlement to service connection must be denied. The preponderance of the evidence is against the Veteran's claim and the doctrine of reasonable doubt is not applicable in the instant appeal. Gilbert; 38 C.F.R. § 3.102 (2013). ORDER Entitlement to service connection for a bilateral foot disability is denied. Entitlement to service connection for diabetes mellitus is denied. Entitlement to service connection for hypertension is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs