Citation Nr: 1338685	
Decision Date: 11/25/13    Archive Date: 12/06/13

DOCKET NO.  11-00 647	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas


THE ISSUE

Entitlement to service connection for residuals of heat exhaustion.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

Andrew Mack, Counsel

INTRODUCTION

The Veteran served on active duty from September 1972 to September 1974. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas.

The Veteran also appealed an RO decision denying service connection for posttraumatic stress disorder, but in a January 2011 written statement withdrew the appeal of that issue.

In October 2011, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge (VLJ) at the RO.  A transcript of that hearing is included in the claims file.

The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. 


FINDING OF FACT

The Veteran did not have residuals of heat exhaustion at the time of his September 2009 claim for benefits and has not had any such disability at any time since.


CONCLUSION OF LAW

The criteria for service connection for residuals of heat exhaustion have not been met.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2013).




REASONS AND BASES FOR FINDING AND CONCLUSION

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Service connection requires competent evidence showing: (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.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995).  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.  Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d). 

No disability at issue in this case is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore 38 C.F.R. § 3.303(b) does not apply.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence.  As a general matter, a layperson is not capable of opining on matters requiring medical knowledge.  See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997).  In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  In addressing lay evidence and determining its probative value, if any, attention is directed to both 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").  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).

In terms of competency, 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 Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot).  That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462   (2007) (concerning rheumatic fever); see also Routen, 10 Vet. App. 183.

In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness.  See generally Caluza v. Brown, 7 Vet. App. 498 (1995).  The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). 

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A.  § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 

As reflected in a November 2009 written statement and in his testimony during his October 2011 Board hearing, the Veteran contends that during his service in the Philippines he suffered severe heat exhaustion, and that due to this he has had problems with heat-induced illness after service and presently.  

During his October 2011 hearing, the Veteran testified that, after his in-service heat exhaustion, some of his fellow servicemen helped cool him off, and he returned to duty.  He testified that, at that time, he felt ill, nauseated, and lightheaded.  He and his wife further testified that he had another episode of heat exhaustion approximately five or six years after service, between 1979 and 1981, and progressively had more such episodes up to the present. 

Service treatment records, while reflecting treatment for various problems, reflect no findings or treatment relating to heat exhaustion, including at the time of the Veteran's September 1974 examination for separation from service.  However, the Veteran submitted a statement from a service comrade, P.B., reflecting that P.B. served with the Veteran from April 1973 to April 1974, and witnessed the Veteran suffer heat exhaustion in the Philippines, which resulted in medical attention and the Veteran being excused from duty for several days to recover.  The Veteran also submitted copies of several letters he had written to his wife during his period of service regarding how extreme the heat was.  Service personnel records further reflect 11 months and 29 days of foreign and/or sea service during the Vietnam Era.

The letter by P.B. indicating that the Veteran was excused from duty for several days following his heat exhaustion is somewhat inconsistent with the Veteran's account of returning to duty after being cooled down by fellow service personnel.  However, even assuming the credibility of the Veteran and P.B. in reporting that the Veteran had an episode of heat exhaustion in service (which the Board would not dispute), the record does not reflect that such in-service heat exhaustion has resulted in any residual disability that can be service-connected.  

While the post-service record beginning in July 2006 reflects that the Veteran has had episodes of fatigue due to heat, it does not reflect any diagnosed chronic residual disability of in-service heat exhaustion since service.  Private treatment records dated from October 2001 to December 2009 reflect several instances of complaints from the Veteran related to fatigue and problems tolerating hot weather, but nothing to indicate a chronic disability.   

In July 2006, the Veteran reported constant fatigue, especially with heat, and was assessed with fatigue.  In July 2009, he reported having considerable fatigue for the past two weeks and thought that it was due to the heat, and again was assessed with fatigue.  In December 2009, he reported being unable to tolerate heat, that he became worse in humid weather, that his worst last two episodes were in 1990 and 2005, and that he had episodes each summer during which he was depleted and fatigued; the assessment was heat intolerance, and the treating doctor counseled the Veteran regarding diet, exercise, and stopping smoking, and suggested that he avoid heat if at all possible. 

However, while such records reflect fatigue and "heat intolerance" reported by the Veteran, neither they nor any other competent and probative evidence reflect any diagnosis or suggestion of any underlying, chronic medical disability that can be service-connected under VA law, and neither the Veteran nor his representative have identified any such evidence.

The Veteran and his wife are competent to report matters within their own personal knowledge.  See Layno, 6 Vet. App. at 469.  Also, lay evidence may be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See Barr, 21 Vet. App. at 308-09 (concerning varicose veins).  However, in this case, the determination of whether the Veteran has an underlying, chronic residual disability from an in-service episode of heat exhaustion is one that is medical in nature, and requires medical expertise to make.  Therefore, neither the Veteran nor his wife is competent to diagnose any such disability.  

Simply stated, while the Veteran may have intolerance to heat, there is no indication of a "disability" in the record associated with his military service.  The post-service medical record provides highly probative evidence against this claim, failing to indicate a disability for VA purposes. 

Thus, the weight of the evidence reflects that the Veteran did not have residuals of heat exhaustion at the time of his September 2009 claim for benefits and has not had such disability at any time since.  Therefore, there can be no valid service connection claim.  See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013).

Accordingly, service connection for residuals of heat exhaustion must be denied.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claim, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53-56.

Duties to Notify and Assist

Under applicable criteria, VA has certain notice and assistance obligations to claimants.  See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). 

Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.  Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).  With respect to service connection claims, section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006).

In the present case, required notice was provided by letter dated in October 2009, which informed the Veteran of all the elements required by Pelegrini II and Dingess/Hartman.  

As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.   See Bernard v. Brown, 4 Vet. App. 384 (1993). 

This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a Veteran's claim for benefits, there are four factors for consideration.  These four factors are:  (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the Veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim.  38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  

With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the Veteran's service.  The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).  

In this case, a VA examination was not obtained for the service connection claim for residuals of heat exhaustion because the evidence did not surpass the low threshold set by McLendon.  Where the evidence does not establish that a disability may be associated with service, there is no need to obtain a medical opinion regarding any such nexus.  As discussed above, the evidence does not establish that the Veteran has any current residuals of heat exhaustion that can be a service-connected disability, and there is no other evidence that would warrant obtaining a medical nexus opinion.

The Veteran's service treatment records, identified private treatment records, a letter from the Veteran's service comrade, and letters written from the Veteran to his wife during his period of service have been obtained.  

Also, in Bryant v. Shinseki, the United States Court of Appeals for Veterans Claims held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the regulation.  They consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  In this case, during the October 2011 Board personal hearing, the VLJ fully explained the issue on appeal.  The Veteran was assisted at the hearing by an accredited representative from the Disabled American Veterans.  The VLJ and the representative asked questions regarding the nature and etiology of the Veteran's claimed heat exhaustion residuals, specifically regarding the in-service incurrence of his heat exhaustion, post-service symptoms, and evidence of any residual disability that might be related to the Veteran's in-service heat exhaustion.  In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims file, and specifically inquired as to all post-service treatment records pertaining to the Veteran's claimed heat exhaustion residuals.  No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or his representative.  Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing.  As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in notice provided during the Veteran's hearing constitutes harmless error. 

Therefore, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal.
ORDER

Service connection for residuals of heat exhaustion is denied.


____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs