Citation Nr: 1335614 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 02-09 853 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a lumbar spine disorder. 2. Entitlement to service connection for a bilateral foot disorder, to include pes planus. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1992 to April 1996. This case comes before the Board of Veterans' Appeals (Board) on appeal from September 2001 and June 2002 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The case is currently under the jurisdiction of the Houston, Texas RO. The Veteran and his wife testified at a Board hearing at the RO in Houston, Texas in September 2003. The Judge who held this hearing retired from the Board and the Veteran requested an additional hearing. The Veteran testified before the undersigned at the Houston, Texas RO in February 2010. These transcripts have been associated with the file. The case was brought before the Board in May 2004, July 2009, and January 2011, at which time the claims were remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his appeal. Most recently the case was before the Board in January 2013 when it was remanded to schedule the Veteran for VA examinations. The Veteran was afforded a VA examination in May 2013 for his lumbar spine and foot disorders. Therefore, the Board finds that there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). FINDINGS OF FACT 1. A lumbar spine disorder is not shown to be due to a disease or injury in-service or to any incident of military service. 2. A bilateral foot disorder is not shown to be due to a disease or injury in-service or to any incident of military service. CONCLUSIONS OF LAW 1. The criteria for the establishment of service connection for a lumbar spine disorder are not met. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. The criteria for the establishment of service connection for a bilateral foot disorder are not met. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to review the entire record, the Board does not have to discuss each piece of evidence reviewed. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran was advised of the information necessary to substantiate his claims, and of his and VA's respective obligations for obtaining specified types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). A March 2006 letter also advised the Veteran of how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the Veteran was not provided adequate 38 U.S.C.A. § 5103(a) notice prior to the adjudication of the claims in the September 2001 and June 2002 rating decisions, this notice problem does not constitute prejudicial error in this case because the record reflects that a reasonable person could be expected to understand what was needed to substantiate the claim after reading the above letters as well as the rating decision, statement of the case, and supplemental statements of the case. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Veteran has neither alleged nor proven that prejudice resulted from lack of proper VCAA notice, and therefore, the Board determines that none resulted. See Shinseki, supra. During the September 2003 Board hearing the Judge explained the issues on appeal and asked questions designed to indicate the submission of evidence that the Veteran may have overlooked. These actions provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(2) and consistent with the duty to assist. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). The Veteran could also be expected to understand these elements based on a reading of the VCAA letter discussed above. Neither the Veteran nor his representative has identified any prejudice in the conduct of either the Board's September 2003 or February 2010 hearings or contended that the Veteran does not fully understand the issues or the evidence that is required to substantiate his claims. The Board finds that any error in notice provided during the Veteran's hearing constitutes harmless error. The Veteran has not alleged that VA failed to comply with the notice requirements of the VCAA, and he was afforded a meaningful opportunity to participate effectively in the processing of his claim, and has in fact provided additional arguments at every stage. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The Veteran's complete service treatment records are not available. Specifically, there is no separation examination of record. In situations where the service records are incomplete, lost or presumed destroyed through no fault of the veteran, VA has a heightened duty to assist in the development of the case, as well as a heightened obligation to explain findings and conclusions and to consider carefully the benefit-of-the-doubt doctrine. See Marciniak v. Brown, 10 Vet. App. 198, 200 (1997), citing O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Veteran was notified of this in June 2005 and informed that he could submit any service records in his possession. The Veteran did submit additional records and these were associated with the claims file. The Veteran has not indicated that additional, relevant diagnoses or findings were part of the separation examination. The Veteran's VA treatment records are also in the file. The VA has also obtained private treatment records and associated them with the claims file. Accordingly, the Board finds the duty to assist with obtaining treatment records has been met. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Veteran was afforded multiple VA medical examinations for his claims, most recently in May 2013. These opinions were rendered by medical professionals following a thorough examination and interview of the Veteran and review of the claims file. The examiners obtained an accurate history. The examiners provided a detailed conclusion for the opinions that were reached. Therefore, the Board finds that the examinations are adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the foregoing, all relevant facts have been adequately developed to the extent possible; no further assistance to the Veteran in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder on a direct basis, generally there must be probative evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The U.S. Court of Appeals for the Federal Circuit has recently held that for purposes of 3.303(b), where the veteran asserts entitlement to a chronic condition but there is insufficient evidence of a diagnosis in service, the veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), such as the ones currently on appeal, the only avenue for service connection is by showing in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a 'competent' source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. Layno v. Brown, 6 Vet. App. 465 (1994). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. In certain instances, however, lay evidence has been found to be competent with regard to a disease with 'unique and readily identifiable features' that is 'capable of lay observation.' See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the 'authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence'). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Analysis On his entrance examination in September 1991 the Veteran reported no back or foot problems on his Report of Medical History, nor were any diagnosed. In an April 1995 service treatment record the Veteran reported with lower back pain which began 2 days earlier. He was diagnosed with mild muscle strain of the lumbar spine. In March 1996 the Veteran reported with pain under his bilateral arches. He was diagnosed with bilateral pes planus and prescribed insoles. There is no follow up for either of these conditions. The Board has reviewed the Veteran's post-service treatment records, however there is no opinion linking his lumbar spine or bilateral foot disorders to service. The earliest record of complaints for these conditions come from 2002 treatment records, approximately 6 years after separation from service. The Board may, and will, consider in its assessment of service connection 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). In April 2002 the Veteran was afforded a VA examination for his lumbar spine. He reported back pain which began in service in 1994 when lifting his pack. He reported pain, weakness, stiffness, fatigability, and a lack of endurance. X-rays showed the lumbar spine to be within normal limits and he was diagnosed with lumbar strain. In July 2002 the Veteran was noted to have flat feet in a VA treatment record. In a November 2002 VA treatment record the Veteran reported chronic low back pain which had existed since 1993. November 2004 x-rays showed a normal lumbar spine. The Veteran was afforded a VA examination in December 2011. He was diagnosed with mechanical back pain. The examiner opined it was less likely than not the Veteran's lumbar spine condition was related to service. His rationale was that there was no evidence of a back condition or injury in service and his 2002 x-rays were normal. His symptoms were consistent with a normal spine and mechanical back pain. At his December 2011 VA examination the examiner opined that the Veteran had low arches, but that he did not have pes planus. There was no other diagnosis given for a bilateral foot disorder. The examiner opined it was less likely than not any foot disorder was related to service. His rationale was that the March 1996 treatment for right foot strain produced no follow up. He had low arches, but not pes planus and his current complaints were not related to his arches. The Veteran was afforded a VA examination most recently in May 2013. His current symptoms included his back going out and trouble bending forward or twisting. The Veteran was diagnosed with mechanical back pain. The examiner did not relate this condition to service. His rationale was that the Veteran's first complaints post service were in 2002, 6 years after discharge from service. At this time he had a normal examination and normal x-rays. The examiner opined that if the Veteran had sustained any significant injury in service, he would have had at least mild degenerative changes on x-ray. His minimal physical findings were more consistent with mechanical lower back pain, but there was no evidence of a chronic ongoing condition. At his May 2013 VA examination for his feet he was diagnosed with Morton's neuroma. The examiner also noted the Veteran was seen in service for right foot strain, which appeared to resolve without residuals. There was also evidence of mild loss of arches, but not pes planus. There were no abnormal findings on x-ray. The examiner did not relate the Veteran's bilateral foot disorder to service. His rationale was that the Veteran was treated once in service with foot pain and was prescribed inserts with no further complaints. He also has not been treated or evaluated for foot problems since discharge; his treatment has been VA examinations. There was no evidence of a chronic ongoing condition associated with service. The Board has also considered the Veteran's statements and testimony regarding his claimed conditions. In a December 2001 statement the Veteran reported that he injured his back in Saudi Arabia and he has treated his pain with over the counter medication. See also July 2005 statement. In his July 2005 statement the Veteran also reported that while working as an elite entry control guard he had to stand for long periods of time. The footwear issued was insufficient to provide support for long durations of standing. He reported continued problems with his arches. At his September 2003 Board hearing the Veteran testified that he injured his back in service while carrying a heavy equipment bag. He specifically remembers an incident when he heard a popping noise after lifting his bag. He testified he was treated by a physician in Saudi Arabia. He also testified to continuing back pain post service. He also testified that he believes his feet problems began in service because he had to stand in boots for 6 to 12 hours a day. He testified that he was prescribed treatment for fallen arches and given prescription inserts. He also testified to bilateral foot pain post service. The Board finds that the preponderance of the evidence is against the Veteran's claims for service connection. Chronic lumbar spine or bilateral foot conditions was not diagnosed during service or for many years thereafter, and there are negative nexus opinions from the VA examiners. The Veteran has provided statements and testimony attesting to his symptoms, including back pain, locking up, and foot pain. See e.g., September 2003 Board hearing transcript. The Veteran is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). However, the most probative evidence of record shows that the Veteran's lumbar spine and bilateral foot disorders are not related to service. The Board acknowledges that the Veteran credibly believes he has lumbar spine and bilateral foot disorders as a result of his service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, determining the etiology and diagnosing a lumbar spine and foot disorder, this falls outside the realm of common knowledge of a lay person. See Jandreau, supra. In this case, given the Veteran's lack of medical expertise, his assertions that he currently has lumbar spine and bilateral foot disorders that are related to service are beyond his competence. These statements are also outweighed by the May 2013 VA examiner's opinion that the conditions are not related to service. There is no competent, probative evidence to the contrary. Accordingly, the Board concludes that the preponderance of the evidence is against the claims for service connection and the benefit of the doubt rule does not apply. See 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). ORDER Entitlement to service connection for a lumbar spine disorder is denied. Entitlement to service connection for a bilateral foot disorder is denied. ____________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs