Citation Nr: 1335859	
Decision Date: 11/05/13    Archive Date: 11/13/13

DOCKET NO.  07-29 661	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES

1.  Entitlement to service connection for a right leg disorder.

2.  Entitlement to service connection for hypertension.

3.  Entitlement to service connection for impotence.

4.  Entitlement to service connection for pes planus.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

C. Kedem, Counsel


INTRODUCTION

The Veteran served on active duty (AD) in the United States Navy from August 1963 to September 1966.  He had additional service in the United States Army Reserves from April 1979 to December 2003.  He submitted his Annual Points Statement listing the number of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) days he served, but the documentation does not specify the exact dates of any of those periods of training.

He appealed to the Board of Veterans' Appeals (Board/BVA) from a May 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).

In June 2011, the Board remanded these claims to the RO via the Appeals Management Center (AMC) for further development.  The additional development especially included making further attempts to verify the Veteran's duty status on the particular date when he alleges to have sustained relevant injury to his right leg, also concerning another specific date when he alleges to have first received a diagnosis of hypertension.  As well, upon verification of his duty status on those dates, a VA compensation examination was to be scheduled for a medical nexus opinion concerning the likelihood his impotence is related to or a result of his treatment for urethritis on particular dates during his AD service.  A VA compensation examination and medical nexus opinion additionally were needed to determine whether the second-degree pes planus (flat feet) noted during his military entrance examination in 1963 was aggravated by his AD, ACDUTRA or INACDUTRA, especially as a result of his physical training requirements.  Lastly, medical examination and comment were needed to determine the origin of his hypertension, which by all then current accounts had been first diagnosed during an October 1997 Army Reserves retention physical, so possibly while on ACDUTRA or INACDUTRA.  All of that requested development was accomplished satisfactorily, at least as concerning the claims for hypertension and pes planus being decided in this decision.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that where the remand orders of the Board are not complied with, the Board itself errs as a matter of law in failing to ensure compliance); but see, too, Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (another remand not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002).

As concerning the claims of entitlement to service connection for a right leg disorder and pes planus, however, the Board must again remand these claims to the RO via the AMC for still further development and consideration.


FINDINGS OF FACT

1.  The Veteran's hypertension did not incept during any period of service, instead, originated many years after the conclusion of his period of AD, and the evidence does not show that it is in any way etiologically related to his service.

2.  His impotence also is not shown to be related or attributable to his service, including caused or exacerbated by a service-connected disability.


CONCLUSIONS OF LAW

1.  His hypertension was not incurred in or aggravated by his active military service and may not be presumed to have been.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013).

2.  His impotence also was not incurred in or aggravated by his active military service and is not secondarily related to his service, either, since not proximately due to, the result of, or aggravated by a service-connected disability.  38 U.S.C.A. §§ 1110, 1131 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2013).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA and its implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  See also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Upon receipt of a complete or substantially complete application for benefits, the notice requirements of VCAA require that VA notify the claimant (1) of the information or evidence necessary to substantiate the claim; including apprising them (2) of the subset of the necessary information or evidence the claimant is to provide; and (3) that VA, instead, will attempt to obtain for him.  The so-called "fourth element" of this notice requesting the claimant to provide any evidence in his personal possession pertaining to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1).  See 73 Fed. Reg. 23,353-356 (April 30, 2008).

The United States Court of Appeals for Veterans Claims (Court/CAVC) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the 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 are:  (1) Veteran status; (2) existence of a disability; (3) a connection between a Veteran's service and the disability; (4) degree of disability, i.e., disability rating; and (5) effective date of the disability.  So the notice should include information even concerning these "downstream" disability rating and effective date elements of the claim in the eventuality service connection is granted.

Here, in September 2005 and March 2006 letters, the RO provided notice to the Veteran regarding the information and evidence needed to substantiate a claim for service connection, as well as the information and evidence he needed to submit versus that VA would obtain for him.  He was also advised regarding "downstream" disability ratings and effective dates.  He therefore received all required notice.

That notice also preceded the RO's initial adjudication of his claims in May 2006, so was provided in the preferred sequence.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

The Board is also satisfied VA has made reasonable efforts to assist him in the development of his claims - again, at least as concerning these being decided.  To this end, VA helped him obtain relevant records and evidence.  Specifically, the information and evidence that has been associated with the claims file for consideration includes his service treatment records (STRs), personnel records, private and other non-VA medical records, his personal statements, and VA examination reports.  

Regarding the latter, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds that the VA examinations in this case are adequate.  The VA medical nexus opinions provided considered all of the pertinent evidence of record, including the Veteran's statements regarding the time of onset and history of these claimed conditions, and provided the required explanatory rationale for the opinions stated.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been satisfied.  38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4).

The Board resultantly is proceeding with its adjudication of these claims

Standard of Review

After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record.  38 U.S.C.A. § 7104(a) (West 2002).  When there is an approximate balance of evidence regarding the merits of an issue material to the determination of a matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (reasonable doubt to be resolved in Veteran's favor).  In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a Veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  To deny a claim on its merits, the preponderance of the evidence must be against the claim.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

Governing Statutes, Regulations and Cases

Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service in the line of duty.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  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.  With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  If a condition noted during service is not shown to be chronic, or this is legitimately questionable, then generally a showing of continuity of symptoms after service is required to support the claim.  38 C.F.R. § 3.303(b).  Showing continuity of symptomatology is an alternative means of showing the disease or injury in service was chronic, i.e., permanent, to in turn link the currently claimed disability to service.

But 38 C.F.R. § 3.303(b) is only applicable to the "chronic diseases" specifically enumerated in 38 C.F.R. § 3.309(a).  See generally Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  These specific diseases, which include hypertension but not impotence, also may be presumed to have been incurred in service if manifested to the required minimum compensable degree of at least 
10-percent disabling within the initial post-service year.  This presumption, however, is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a).

So service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available.  See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).


Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).

Establishing entitlement to direct service connection generally requires having:  (1) competent and credible evidence confirming the existence of the claimed disability or, at the very least, showing the Veteran has had it at some point since the filing of the claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a relationship or correlation between the disease or injury in service and the presently claimed disability - which is the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Aside from direct and presumptive service connection, service connection also may be granted on a secondary basis for disability that is proximately due, the result of, or aggravated by a service-connected disability.  38 C.F.R. § 3.310(a) and (b) (2013).  See also Allen v. Brown, 7 Vet. App. 439, 448 (1995).  When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.  Harder v. Brown, 5 Vet. App. 183, 187 (1993).

To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) a nexus between the current disability and the service-connected disability.  Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995).

Service connection may be granted for aggravation during service of a pre-existing condition beyond its natural progression.  38 U.S.C.A. § 1153 (West 2002); 
38 C.F.R. § 3.306 (2013). 


Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable (obvious and manifest) evidence indicates the injury or disease existed before acceptance and enrollment and was not aggravated by such service.  See generally 38 U.S.C.A. § 1111 (West 2002).  Only such conditions as are recorded in examination reports are considered as "noted."  38 C.F.R. § 3.304(b) (2013).  When determining whether a defect, infirmity, or disorder is "noted" at entrance into service, supporting medical evidence is needed.  Crowe v. Brown, 7 Vet. App. 238 (1994).

If a disorder was not noted as pre-existing when the Veteran entered service, then the presumption of soundness applies and VA has the burden of showing by clear and unmistakable evidence both preexistence and that the disorder was not aggravated during or by his service or that any worsening was not beyond the condition's natural progression.  See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004) and VAOPGCPREC 3-2003 (July 16, 2003).  See also Horn v. Shinseki, 25 Vet. App. 231, 234 (2012).

If on the other hand a condition was noted when entering service, then the presumption of soundness does not apply.  The presumption of soundness attaches only where there has been an induction examination during which the disability about which the Veteran later complains was not detected.  See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991).  In this alternative scenario he can only claim entitlement to service connection based on aggravation of the disorder.  Smith v. Shinseki. 24 Vet. App. 40, 47 (2010).  Moreover, he has the burden of establishing aggravation by showing there was an increase in the disability during his service.  Horn, 25 Vet. App. at 235 n. 6.  Independent medical evidence generally is needed to support a finding that the pre-existing disorder increased in severity during service beyond its natural progression.  See Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1994).


Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; Falzone v. Brown, 8 Vet. App. 398, 402 (1995).  See also Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); and Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). (all holding that mere temporary or intermittent flare-ups of a pre-existing injury or disease during service are insufficient to be considered "aggravation in service", unless the underlying condition, itself, as contrasted with mere symptoms, has worsened).

Also, in Verdon v. Brown, 8 Vet. App. 529 (1996), the Court held that the presumption of aggravation does not attach even where the pre-existing disability has been medically or surgically treated during service and the usual effects of treatment have ameliorated disability so that it is no more disabling than it was at entry into service.  Only if the Veteran manages to show a chronic worsening of the condition during his service does the presumption of aggravation apply and, in turn, then require VA to show by clear and unmistakable evidence that the worsening was not beyond the condition's natural progression.  The presumption of aggravation applies only when pre-service disability increases in severity during service.  Beverly v. Brown, 9 Vet. App. 402, 405 (1996); Browder v. Derwinski, 1 Vet. App. 204, 206-207 (1991).

"Clear and unmistakable evidence" is a more formidable evidentiary burden than the preponderance of the evidence standard.  See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than that of "clear and unmistakable evidence.").  It is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the non-aggravation result be "undebatable."  Cotant v. Principi, 17 Vet. App. 116, 131 (2003), citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993).



The term "active military, naval, or air service" includes AD and any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty, and any period of INACDUTRA during which the individual concerned was disabled or died from an injury, though not also disease, incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident that occurred during such training.  38 U.S.C.A. §§ 101(21), (22), (24), 106; 38 C.F.R. § 3.6(a), (d).  See also Brooks v. Brown, 5 Vet. App. 484, 485 (1993).  VA's General Counsel has interpreted that it was the intention of Congress when it defined "active service" in 38 U.S.C.A. § 101(24) to exclude INACDUTRA during which a member was disabled or died due to nontraumatic incurrence or aggravation of a disease process.  VAOPGCPREC 86-90.

Reserve and National Guard service generally means ACDUTRA and INACDUTRA.  ACDUTRA is full time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505.  38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c).  Basically, this refers to the two weeks of annual training, sometimes referred to as "summer camp," which each Reservist or National Guardsman must perform each year.  It can also refer to the Reservist's or Guardsman's initial period of training.

INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505.  38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d).  Basically, this refers to the twelve four-hour weekend drills that each Reservist or National Guardsman must perform each year and is sometimes referred to as "weekend warrior" training.  These drills are deemed to be part-time training.


Generally, an individual who has only Reserve or National Guard service (ACDUTRA or INACDUTRA with no AD) is not a Veteran as legally defined.  In the service-connection context, for example, this means that the presumption of soundness upon entry into service and the presumptive service connection provisions of 38 C.F.R. § 3.307, applicable to AD, would not apply to ACDUTRA or INACDUTRA.  38 U.S.C.A. §§ 1111, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309.  Thus, service connection on a presumptive basis is not available where the only service performed is ACDUTRA or INACDUTRA.  See Smith v. Shinseki, 24 Vet. App. 40 (2010) and Biggins v. Derwinski, 1 Vet. App. 474, 476-78 (1991).

So to establish status as a "Veteran" based upon a period of ACDUTRA, a claimant must establish that he was disabled from disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA.  38 C.F.R. § 3.1(a), (d); Harris v. West, 13 Vet. App. 509, 511 (2000); Paulson v. Brown, 7 Vet. App. 466, 470 (1995).  The mere fact that a claimant has established status as a "Veteran" for other periods of service (e.g., the Veteran's prior period of AD) does not obviate the need to establish that he is also a "Veteran" for purposes of the period of ACDUTRA where the claim for benefits is premised on that period of ACDUTRA.  Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998).

Similarly, in order for him to achieve "Veteran" status and be eligible for service connection for disability claimed during his inactive service, the record must establish that he was disabled from an injury (but not disease) incurred or aggravated during INACDUTRA.  See Id.; Paulson, 7 Vet. App. at 470.

Further concerning ACDUTRA and INACDUTRA service, the presumption of sound condition does not apply if an entrance examination was not performed prior to that period of service.  Moreover, the presumption of aggravation is inapplicable to a period of ACDUTRA or INACDUTRA.  Smith v. Shinseki, 24 Vet. App. 40 (2010).  Rather, the claimant bears the burden of proving both that (1) the preexisting disability worsened (underwent a permanent increase in disability) during service, and (2) that such worsening was beyond the natural progression of the disease.  

Although an ACDUTRA claimant does not need to show that his or her ACDUTRA training proximately caused the worsening of his or her preexisting disability, the definition of aggravation does require that an ACDUTRA claimant establish that there is a causal relationship between the worsening of the claimant's preexisting condition and his or her ACDUTRA.  Donnellan, v. Shinseki, 24 Vet. App. 167, 173-74 (2010) (citing the definition of aggravation in 38 U.S.C.A. § 1153 and incorporated by 38 U.S.C.A. § 101(24)).  This causal relationship is shown when the claimant establishes that the preexisting condition worsened beyond the natural progress of that condition during service.  Id.  

The claimant has the burden to establish both elements set forth above (that the preexisting disability worsened in service and that such worsening was beyond the natural progression of the disease).  Donnellan, 24 Vet. App. at 175.  There is no shifting burden as there is when the presumptions of soundness and aggravation apply.  Id.  The standard of proof remains the "benefit of the doubt" standard under 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  Id.  Thus, the claimant must only show that there is an approximate balance of positive and negative evidence to prevail as to this matter.  Paulson v. Brown, 7 Vet. App. 466, 470 (1995).

With respect to presumptive service connection for chronic diseases as it pertains to the Veteran's periods of ACDUTRA, the Court has held that a claimant whose claim is based on a period of ACDUTRA can never be entitled to the "presumption of service connection."  See Smith v. Shinseki, 24 Vet. App. 40, 47 (2010).  This is so because, by definition, the presumption of service connection applies where there is no evidence that a condition began in or was aggravated during the relevant period of service.  By contrast, for a claimant whose claim is based on a period of ACDUTRA, there must be some evidence that the condition was incurred or aggravated during the relevant period of service.  Id.  Thus, under no circumstance, is service connection warranted for condition such as hypertension on a presumptive basis pertaining to chronic diseases concerning any period of ACDUTRA.


The evaluation of evidence generally involves a three-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine whether the evidence is "credible", or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must additionally determine whether it is also credible).  Only if the evidence is both competent and credible does it ultimately have probative value.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted); Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify).  The third and final step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

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.  38 C.F.R. § 3.159(a)(2).

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).

In certain instances, lay evidence has been found competent with regards 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) (dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet).

On the other hand, laypersons equally have been found not competent in more complex medical situations.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever).  See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue).

When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  See Kahana v. Shinseki, 24 Vet. App. 428 (2011).  See also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation).

Competent medical evidence, as opposed to lay 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 at 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see also 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").  As fact finder, when considering whether lay evidence is satisfactory, the Board may not only consider internal inconsistency of statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, but also the Veteran's demeanor when testifying at a hearing when he has testified.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  See, too, Macarubbo v. Gober, 10 Vet. App. 388 (1997) (similarly holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor).

In ultimately rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  To this end, 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).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit Court, citing its decision in Madden, recognized that the Board had inherent fact-finding ability.  Id., at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the Court similarly 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).

Generally, the degree of probative value that may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the Veteran's claims file, although the latter, alone, is not determinative of the opinion's probative value.  Prejean v. West, 13 Vet. App. 444, 448-9 (2000).  Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data.  Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually had examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data).  The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record.  Miller v. West, 11 Vet. App. 345, 348 (1998).

Medical evidence that is speculative, general or inconclusive in nature cannot support a claim.  Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996).  A physician's statement framed in terms such as "may" or "could" is not probative.  See Warren v. Brown, 6 Vet. App. 4, 6 (1993).

A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment.  See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the Veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis).

In deciding these claims, the Board has reviewed all of the evidence in the Veteran's claims file, both his physical claims file and electronic ("Virtual VA") claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by him or obtained on his behalf be discussed in exhaustive 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.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Discussion

Hypertension

Concerning this claim of entitlement to service connection for hypertension, the Veteran's STRs show blood pressure readings of 120/80 on enlistment in August 1963 and 118/78 on separation in August 1966.  Thus, his blood pressure appears to have been within normal limits during his AD service.  The first indication of elevated blood pressure was during an Army Reserves retention physical in October 1997, so much more recently.

In October 2012, he had a VA compensation examination for a medical opinion concerning the likely time of onset of his hypertension in relation to his service.  The examiner opined that the Veteran's hypertension was at least as likely as not (50 percent or greater likelihood) due to his service.  The examiner explained that blood pressure readings were 150/100 and 138/107 on October 5, 1997, with a diagnosis of essential hypertension.  On July 17, 1994, blood pressure was 140/84.  Blood pressure was 140/86 on October 6, 1991.  On May 3, 1987, blood pressure was 138/94 with a note made to the Veteran's personal physician for further evaluation of high blood pressure.  The examiner noted that on October 18, 1983, the Veteran's blood pressure was normal, namely 126/74.


In the June 2011 remand, the Board had asked to RO/AMC to verify the Veteran's duty status on October 5, 1997 (the date when hypertension was first diagnosed).  In an October 2012 memorandum titled Formal Finding of Unavailability, the AMC indicated that verification of the Veteran's Reserves status for October 5, 1997 was not possible, as the necessary records were unavailable.

Because the Veteran's duty status cannot be verified for October 5, 1997, the specific date in question, service connection for hypertension cannot be granted for this disease purportedly incurred on that particular date.  In order for service connection to be granted for hypertension diagnosed on that date, he necessarily must have been on ACDUTRA, not INACDUTRA, since hypertension is a disease not injury.  There is no information in the file verifying that he was on ACDUTRA versus INACDUTRA.

Similarly, service connection for hypertension cannot be granted based on incurrence during his prior AD service.  As stated, the record does not show that hypertension was incurred during his preceding AD service, so service connection under 38 C.F.R. § 3.303(a) is unwarranted.  

Furthermore, it was not incurred within the first year of separation from AD service, namely, between September 1966 and September 1967, certainly not to the required minimum compensable degree of at least 10-percent disabling.  Indeed, the fist showing of abnormally elevated blood pressure was in the latter part of the 1980s.  Thus, service connection for hypertension cannot be granted presumptively as a chronic disease.  38 C.F.R. §§ 3.307, 3.309(a).  Next, service connection for hypertension cannot be granted based on continuity of symptomatology because there is a long hiatus between separation from AD in September 1966 and the first showing of hypertension in the latter part of the 1980s.  38 C.F.R. § 3.303(b).  Indeed, 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.  Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (indicating that, in the appropriate circumstance, VA adjudicators may consider the absence of any indication of a relevant medical complaint until so relatively long after service as one factor, just not the only or sole factor, in determining whether a disease or an injury in service resulted in chronic or persistent residual disability.  See, too, Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology and had failed to account for the lengthy time period for which there was no clinical documentation of the claimed disorder).

In Kahana and Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc), the Veterans Court (CAVC) and Federal Circuit Court cautioned that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence.  Also, in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), the Federal Circuit Court recognized lay evidence as potentially competent to support the presence of the claimed disability, both during service and since, even where not corroborated by contemporaneous medical evidence such as actual treatment records.  The Federal Circuit Court went on to indicate in Buchanan, however, that the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence.  See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record").  Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of the other factors.  See Cartright, 2 Vet. App. at 25; accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . ."). 

Here, the Board considers it probatively significant that there were several intervening occasions prior to the initial diagnosis when the Veteran's blood pressure was measured and found to be within normal limits, so not elevated, much less persistently elevated to have warranted an outright diagnosis of hypertension.


Ultimately, the Board must consider all the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service, and any other pertinent facts.  Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000).  Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role.  See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness).

Finally, the evidence on the whole does not reflect that the Veteran's hypertension is otherwise related to his period of AD.  The opinion relating his hypertension to his service was predicated on it having incepted during his ACDUTRA or INACDUTRA service, and, as explained, it would only qualify for service connection if during his ACDUTRA service, which has not been confirmed to coincide with the date in October 1997 of the official diagnosis.  The only other medical opinion notes explicitly that blood pressure was normal in October 1983 and suggests there was no indication of a history of hypertension up to that date or point in time.  Thus, the totality of the evidence does not reflect a causal connection between present hypertension and AD service.  38 C.F.R. § 3.303(d).

To reiterate, because the Veteran's ACDUTRA and INACDUTRA dates cannot be verified, including specifically in relation to his initial diagnosis of hypertension, service connection for this disease cannot be granted based on that additional service.

For these reasons and bases, the preponderance of the evidence is against the claim, so the benefit of the doubt rule is inapplicable, in turn requiring the denial of the claim.  Alemany, supra; see also 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.


Impotence

The STRs show treatment for acute gonoccocic urethritis in March 1965.  The Veteran was treated for urethritis again in April 1965.  Urinalysis showed staph epidermitis.  His separation examination in August 1966 indicated a normal genitourinary system.  He alleges, however, he is now impotent as a result of those infections in service.

In October 2012, he was afforded a VA medical examination.  The examination report indicates the record was reviewed in conjunction with the examination for the pertinent history.  The examiner opined that impotence was not likely related to service.  The examiner explained that the Veteran had developed erectile dysfunction (ED) 38 years after the episodes of urethritis in 1965, and that the ED was more likely the result of his hypertension and the medication used in its treatment as well as his history of alcohol and tobacco abuse.

His impotence, then, has not been shown to be related to his period of AD - including especially to the infections he had during that initial service.  He insist that it is related to the two episodes of urethritis he had in 1965, but they appear to have resolved without residuals well before he separated from service.  In any event, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the etiology of impotence is complex and falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not Kahana competent to diagnose cancer).  Thus, the Board cannot rely on his representations regarding the origins of his impotence.

The record contains no competent evidence linking his impotence to his service.  The STRs do not reflect a diagnosis of impotence, and the October 2012 VA examiner concluded the impotence was unrelated to the urethritis in 1965.  There being no competent evidence linking the impotence to service, direct service connection for this claimed disability must be denied.  38 C.F.R. § 3.303.

Service connection for impotence also cannot be granted based on a period of ACDUTRA (assuming that impotence was incurred pursuant to a line of duty disease or injury) or INACDUTRA (assuming that impotence was incurred pursuant to a line of duty injury) because the dates of ACDUTRA and INACDUTRA cannot be verified.

The October 2010 VA compensation examiner indicated the hypertension was secondary to certain aspects of the Veteran's medical history.  First, the examiner surmised that the Veteran's impotence was likely secondary to his hypertension.  Service connection for the impotence cannot be granted on a secondary basis, that is, as secondary to the hypertension because the hypertension, itself, is not a service-connected disability.  And secondary service connection presupposes that the underlying disability is service connected.  38 C.F.R. § 3.310.

The examiner further suggested that the Veteran's impotence was also partly due to his history of alcohol and tobacco abuse.  Service connection for alcohol abuse is generally unavailable.  See generally 38 C.F.R. § 3.301 (2013).  Furthermore, for a claim, as here, filed after June 9, 1998, disabilities resulting from tobacco use also are not subject to service connection.  38 C.F.R. § 3.300 (2013).  Thus, service connection for the impotence as secondary to the alcohol and tobacco use, even if such use began in service, is unavailable.  Id.; 38 C.F.R. §§ 3.301, 3.310.

For these reasons and bases, the preponderance of the competent and credible evidence is against the claim.  As such, the benefit-of-the-doubt rule does not apply.  Alemany, supra; see also 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.


ORDER

Service connection for hypertension is denied.

Service connection for impotence also is denied.


REMAND

Another remand is required to further assist the Veteran with his remaining claims.  VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(c), (d) (2013).

Right Leg Disorder

As for his claimed right leg disability, the Veteran's STRs show a two-inch scar on the right posterior upper leg upon entrance into service in August 1963.  During his AD service, a February 1966 record shows a right knee abrasion following a motor vehicle accident.  The report of his separation examination in August 1966 shows normal lower extremities but notes the same right leg scar as on entrance. 

Relating to his subsequent service in the reserves, the Veteran submitted buddy statements attesting that he hurt his right leg during training in April 1979.  There is no description of the accident or injury and no line of duty report.  His private treatment records indicate he was hit by a car in October 1979 and suffered a right ankle fracture.  His duty status at the time of that October 1979 accident has not been verified in terms of whether he was on ACDUTRA or INACDUTRA.  An October 1983 reserves' physical indicates short right leg, deformity of right leg with abnormal gait.  A June 1993 letter from B.O., M.D., states the Veteran had corrective osteotomy of the right leg secondary to a fracture malunion in August 1992.

The Veteran's STRs include a permanent profile for his right leg with no running.  He alleges that he continued to complete physical training exercises while on ACDUTRA and INACDUTRA, despite the profile, and that the physical training aggravated his right leg disability. 

As his duty status on October 25, 1979, could potentially establish his claim for service connection for the right leg disability, the Board found that further attempts to verify his duty status on that particular date were necessary.  Thus, the Board asked the RO/AMC to verify, in pertinent part, his duty status on October 25, 1979, the date of emergency treatment at Bethany Medical Center.  

In an October 2012 memorandum, the AMC made a formal finding of unavailability of records to verify his Reserve status on October 25, 1979.  As such, service connection for the right lower extremity disability cannot be established for an injury occurring in October 1979.  Similarly, the Board cannot grant service connection for an alleged injury occurring in April 1979 because there is no verification of whether he was on ACDUTRA or INACDUTRA status at that time, either.  38 U.S.C.A. §§ 101(22) & 101(24); 38 C.F.R. § 3.6.

In the prior June 2011 remand, the Board asked that a VA examiner opine regarding whether a current right lower extremity disability was related to the right knee abrasion in 1966 or, alternatively, aggravated by ACDUTRA or INACDUTRA physical training requirements.  

In October 2012, the Veteran was afforded a VA examination of his feet.  The examiner opined that the right lower extremity disability was not likely due to service because the Veteran's right lower extremity disability was "clearly and unmistakably caused by a [motor vehicle accident] and fracture sustained on 10/26/1979."  The examiner provided no rationale for that conclusion, and the examiner's opinion, therefore, is of no probative weight.  See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is accorded no weight).  Under Stegall, the Board must seek corrective action when remand directives are not followed.  Here, because the opinion provided is inadequate, the remand directive regarding the right lower extremity examination was not followed.  Clearly, when the Board requests medical examinations and opinions, it is seeking adequate medical examinations and opinions.  The Board will remand this issue to the AMC anew for a more telling rationale.

Pes Planus

Regarding his feet, the Veteran's STRs indicate he had second-degree bilateral pes planus (flat feet) when beginning his AD service in August 1963.  Hence, there is documentation of this pre-existing condition.  If, as here, a pre-existing disability is noted upon entry into service, the Veteran cannot bring a claim for service connection for the disability, only instead a claim for service-connected aggravation of the disability.  However, 38 U.S.C.A. § 1153 applies and the burden falls on him, not VA, to establish aggravation.  Wagner, 370 F.3d at 1096; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). 

Generally speaking, a congenital defect is not service connectable as a matter of express VA regulation because it is not a disease or injury within the meaning of applicable legislation for VA compensation purposes.  38 C.F.R. §§ 3.303(c), 4.9 (2013).  The only possible exception is if there is evidence of additional disability due to aggravation during service of a congenital disease, but not defect, by superimposed disease or injury.  VAOPGCPREC 82-90; Quirin v. Shinseki, 22 Vet. App. 390 (2009); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); VAOPGCPREC 67-90; and VAOPGCPREC 11-99.  See also Winn v. Brown, 8 Vet. App. 510, 516 (1996). 

In VAOPGCPREC 82-90, VA's General Counsel held that service connection may be granted for diseases (but not defects) of congenital, developmental or familial origin, and indicated that support for this position could be found in VA regulations themselves, noting that sickle cell anemia, although a familial disease, was included for rating purposes in the Schedule for Rating Disabilities 

The Veteran alleges that his pre-existing pes planus was aggravated by his service, especially by his October 1979 accident and right leg disability.  Therefore, this claim is not just based on in-service aggravation but also depends on whether service connection is granted for this right leg disability to show the required chain link of causation or aggravation needed for secondary service connection.  
38 C.F.R. § 3.310(a) and (b).

This claim for pes planus, therefore, is inextricably intertwined with the claim of entitlement to service connection for the right lower extremity disability.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two claims are inextricably intertwined when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered); see also Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim).  Hence, adjudication of the Veteran's bilateral pes planus claim must be deferred.

Nevertheless, regarding the Veteran's pes planus claim, if it is determined that his right lower extremity disability is service connected, then a derivative opinion would be needed regarding whether it has aggravated his pes planus that also is being claimed.  38 C.F.R. § 3.310(b).  The examiner must also opine regarding whether the bilateral pes planus was aggravated by the physical training requirements of ACDUTRA and INACDUTRA service.

Accordingly, these remaining claims are again REMANDED for the following still additional development and consideration:

1.  Schedule a VA compensation examination for:

(1) a medical nexus opinion concerning the likelihood (very likely, as likely as not, or unlikely) the Veteran's right leg disorder is related to or the result of his service, including especially the right knee abrasion in February 1966 or alternatively aggravated by his additional service on ACDUTRA or INACDUTRA, and especially on account of his physical training requirements.


(2) The examiner must also opine regarding the likelihood (very likely, as likely as not, or unlikely) the Veteran's pes planus was aggravated beyond its natural progression by the training requirements of ACDUTRA and INACDUTRA service.

(3) If, and only if, the right lower extremity disorder is determined to be related to or the result of the Veterans service (i.e., a service-connected disability), including especially on account of the right knee abrasion in February 1966, the examiner must resultantly additionally comment on the likelihood (very likely, as likely as not, or unlikely) this right leg disorder has chronically, meaning permanently, aggravated the pes planus.  In other words, this additional opinion only becomes necessary should there be establishment of the allegedly precipitating right leg disorder as a service-connected disability since, if it is not, the pes planus could not be secondarily related to service by way of this disability.

All necessary diagnostic testing and evaluation needed to make these determinations should be performed.  The designated examiner must review the claims file, including a complete copy of this remand, for the Veteran's pertinent medical and other history. 

The examiner must discuss the rationale of the opinions, whether favorable or unfavorable, if necessary citing to specific evidence in the file. 

The Veteran is hereby advised that his failure to report for this scheduled medical examination, without good cause, may have adverse consequences on these pending claims.  38 C.F.R. § 3.655. 

2.  Then readjudicate these remaining claims for service connection for a right leg disorder and bilateral pes planus in light of this and all other additional evidence.  If these claims continue to be denied, send the Veteran and his representative another SSOC and give them an opportunity to respond to it before returning the file to the Board for further appellate consideration of these remaining claims. 

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

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



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


Department of Veterans Affairs