Citation Nr: 1339153	
Decision Date: 11/27/13    Archive Date: 12/13/13

DOCKET NO.  12-01 796	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines


THE ISSUES

1.  Entitlement to service connection for arthritis of the feet, ankles and knees.

2.  Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance or housebound status.


ATTORNEY FOR THE BOARD

Kristy L. Zadora, Counsel


INTRODUCTION

The Veteran had active duty service in the Philippine Guerilla and Combination Service from May 1944 to August 1945.

These matters come to the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Philippines, which, in pertinent part, denied the Veteran's claim for service connection for arthritis of the feet, ankles and knees.  In addition, the Veteran's claim for SMC was denied.

Subsequent to the issuance of the November 2011 supplemental statement of the case, the Veteran submitted additional evidence in support of his claims, namely a statement dated in December 2011 from his sister.  The Veteran waived RO consideration of this evidence in October 2013.  See 38 C.F.R. § 20.1304(c) (2013).  In addition, the Veteran submitted an additional statement with his evidence waiver in October 2013.  A waiver of RO consideration of this statement is not necessary as this submission consisted of argument, rather than evidence, in support of his claims.

The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) folder associated with the Veterans claims.  A review of the documents in such folder reveals adjudicatory documents that were duplicative of those contained in the paper claims file.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  All notification and development actions needed to fairly adjudicate the claims herein decided have been accomplished.

2.  The Veteran does not have currently diagnosed foot arthritis.

3.  Arthritis of the ankles and knees are not shown to be causally or etiologically related to any disease, injury, or incident during service and did not manifest to a compensable degree within one year of the Veteran's discharge from service.

4.  Service connection is not currently in effect for any disability.


CONCLUSIONS OF LAW

1.  The criteria for service connection arthritis of the feet, knees and ankles are not met.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013).

2.  The criteria for entitlement to SMC by reason of being in need of the aid and attendance of another person or housebound status have not been met.  38 U.S.C.A. §§ 1114, 5107 (West 2002); 38 C.F.R. §§ 3.350, 3.352 (2013). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013).

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  

With regards to the Veteran's claim for SMC, this issue is being decided based on law and not the facts of this case.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). VA's General Counsel has held that the notice and assistance requirements of the VCAA are not applicable where there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit.  The General Counsel reasoned that there was no reasonable possibility that such a claim could be substantiated.  VAOPGCPREC 5-2004 (2004), 69 Fed. Reg. 59989 (2004).

Prior to initial adjudication of the Veteran's claim decided herein, a letter dated in May 2011 fully satisfied the duty to notify provisions as to the claim for service connection for arthritis.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187.  As the Board has concluded that the preponderance of the evidence is against the claim for service connection, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot, and no further notice is needed.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).   

All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims.  Once this has been accomplished, all due process concerns have been satisfied.  See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error).  In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claims, as well as the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence.  Accordingly, there is no further duty to notify.  

The Board also concludes VA's duty to assist has been satisfied.  The evidence of record includes the various private treatment records and service records, to include a June 1946 Affidavit.  Finally, there are various written statements provided by the Veteran, and his sister, on his behalf.  The Board notes that in a May 2011 Application for Compensation and/or Pension, the Veteran indicated that he has not received treatment at a VA medical facility.  The Board also finds that no additional RO action to further develop the record in connection with the claims, prior to appellate consideration, is required. 

With regards to the claim for service connection for arthritis of feet, ankles and knees, the Board finds that a VA examination with nexus opinion is not necessary.  
Specifically, as will be discussed below, the record does not establish that the Veteran has been diagnosed with foot arthritis.  There is also no credible evidence that the Veteran had arthritis of the knees or ankles during service or that such manifested to a compensable degree within one year of service, and there is no indication that such a disorder is otherwise related to service.  Moreover, the Veteran has not alleged the onset of his knee and ankle arthritis to have occurred during service.  In addition, the Veteran's contentions regarding a continuity of symptomology have been found to be not credible.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).  The Court has held that VA is not required to provide a medical examination when there is no credible evidence of an event, injury, or disease in service.  See Bardwell v. Shinseki, 24 Vet. App. 36 (2010).   Additionally, a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination.  See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010).  Therefore, the Board finds that a VA examination and/or opinion is not necessary to decide the claim for service connection for arthritis of the feet, ankles and knees. 

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007).  The Veteran has submitted argument and evidence in support of the appeals.  Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of his claims such that the essential fairness of the adjudication is not affected. 





II.  Service Connection

A.  Applicable Laws and Regulations

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. §  1110; 38 C.F.R. § 3.303(a).

Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303.

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology.  Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999).  In a recent decision, the United States Court of Appeals for the Federal Circuit (the Federal Circuit) determined that such an alternative method can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  The Board notes that arthritis is listed as a chronic disease under 38 C.F.R. §§ 3.307(a), 3.309(a).

In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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 profession."  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.")

Once evidence is determined to be competent, the Board must determine whether such evidence is also credible.  See Layno v. Brown, 6 Vet. App. 465 (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").

B.  Arthritis of the Feet

The Veteran contends that his current foot disorder, which he identified as arthritis, began during service.  Specifically, he alleges that he began feeling slight pain in both of his feet after being exposed to constant rain and cold weather while on guard duty.

Pertinent to a claim for service connection, such a determination requires a finding of current disability that is related to an injury or disease in service.  Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992).  In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the Court held that the requirement of the existence of a current disability is satisfied when a veteran has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim.  However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a Veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. 

Under applicable regulation, the term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions.  38 C.F.R. § 4.1.  See also Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995).  The Board notes that a symptom, without a diagnosed or identifiable underlying malady or condition, does not, in and of itself, constitute a "disability" for which service connection may be granted.  See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), vacated in part and remanded on other grounds sub. nom. Sanchez-Benitez v. Principi, 239 F. 3d 1356 (Fed. Cir. 2001).

Service records consist of a June 1946 Affidavit for Philippine Army Personnel, signed by the Veteran, which indicated that he had incurred no wounds or illnesses from December 1941 to the date of return of military control.

Post-service treatment records include an August 2011 private treatment summary which indicated that the Veteran had presented with swelling and pain in his feet and that a "permanent bone deformity on both foot are evident" in August 2011; there is no indication in this treatment summary that the Veteran has been diagnosed with any foot disorder, to include arthritis.  A December 2011 statement from the Veteran's sister, who identifies herself as a registered nurse, indicated that the Veteran suffered from arthritis; the specific joint or joints affected was not identified.

The medical evidence of record simply does not corroborate the Veteran's assertions as to experiencing arthritis of the feet since service-as he asserts in connection with this claim-and there is otherwise no competent, persuasive evidence that he has, or at any time pertinent to this appeal has had, such a disability.  

Here, the Veteran filed his claim for service connection in May 2011.  As such, no evidence supports a finding of a foot arthritis at any time frame pertinent to this appeal.  Thus, there is no competent evidence to support a finding that the Veteran has, or at any time pertinent to this claim has had, foot arthritis, and the Veteran has presented or identified any such evidence or opinion.

Thus, without a medical evidence of a current disability within the meaning of McClain, fundamentally, there can be no award of service connection.  Rather, the evidence indicates no more than the Veteran's own, unsubstantiated reports of foot arthritis.

As for the lay assertions of record, the Board notes that the Veteran is certainly competent to report his own symptoms or matters within his personal knowledge. See Jandreau, supra; Buchanan, supra.  In addition, laypersons may, in some circumstances, opine on questions of diagnosis and etiology.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that 'a valid medical opinion' was required to establish nexus, and that a layperson was 'not competent' to provide testimony as to nexus because she was a layperson, conflicts with Jandreau).   

However, matters of medical diagnosis for disability not capable of lay observation (and, if competently shown, a medical relationship between such disability and service)-such as the ones here at issue-are matters within the province of trained medical professionals.  See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994).  As the Veteran is not shown to be other than a layperson without appropriate medical training and expertise to competently self-diagnose foot arthritis, to render a diagnosis as to such a current disability or to opine as to the etiology of any such disability, the lay assertions in this regard have no probative value.  See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ('a layperson is generally not capable of opining on matters requiring medical knowledge').  In addition, the Board notes that the Veteran's sister, who identified herself as a registered nurse, provided no etiological opinion as to the Veteran's claimed foot arthritis.

The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability.  See 38 U.S.C.A. § 1110.  Thus, where, as here, medical evidence indicates that the Veteran does not have the disability for which service connection is sought-and there is no contrary, competent evidence-there can be no valid claim for service connection.  See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer, supra.  

For all the foregoing reasons, the Board finds that service connection for foot arthritis is not warranted.  In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claim.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  

C.  Arthritis of the Knee and Ankles

The Veteran generally contends that his current ankle and knee arthritis are the result of his service.

As indicated above, the service records consist of a June 1946 Affidavit for Philippine Army Personnel, signed by the Veteran, which indicated that he had incurred no wounds or illnesses from December 1941 to the date of return of military control.  In a statement attached to his January 2012 substantive appeal, the Veteran indicated that he did not seek treatment at any "Filipino or American military hospital" for this arthritis either during service or within one year of service discharge.

Post-service treatment records include an April 2011 private treatment summary which indicated that the Veteran had been receiving treatment for osteoarthritis of the knees and ankles since June 2000.  An August 2011 private treatment summary indicated that the Veteran had been diagnosed with gouty arthritis of the knees in January 2005.

Here, the Veteran's service records do not reflect complaints related to arthritis in the ankles or knees and the Veteran stated that he did not receive treatment from a military hospital during service.  With respect to the post-service clinical evidence, the April 2011 private treatment summary suggests that the Veteran began receiving treatment for arthritis in June 2000.  The Board notes the December 2011 statement from the Veteran's sister, who had stated that she is a registered nurse, which indicated that she had cared for the Veteran in 1945 when he contracted malaria and that "arthritis continues to be a health issue since 1945."   However, contrary to the Veteran's assertions, his sister did not indicate in her December 2011 statement that she treated the Veteran for arthritis during his service nor did she identify the joint or joints affected by this arthritis.  As noted above, there is nothing in the Veteran's service records to indicate that his current arthritis had its onset during service or shortly after service.  Rather, the first clinical evidence of such arthritis was in June 2000, approximately 55 years after service discharge.  The Board points out that the passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992).

The Board also notes that the Veteran has not been consistent in his assertions regarding the onset and presence of such arthritis.  In a May 2011 VA Application for Compensation, the Veteran wrote that his arthritis began in August 1945, during his period of service.  In a June 2011 statement, the Veteran indicated that his knee pain began in October 1980.  However, in a June 1946 Affidavit for Philippine Army Personnel, the Veteran affirmed that he had incurred no wounds or illnesses from December 1941 to the date of return of military control.  Such statements were made many years prior to filing of the instant claim.  The Board, therefore, accords the Veteran's June 1946 statements regarding his absence of in-service injuries or illnesses more probative weight than any report of such symptoms made in connection with, or, presumed by the filing of, the Veteran's May 2011 claim for service connection.  See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (a pecuniary interest may affect the credibility of a claimant's testimony).  In addition, although the Veteran has denied that the made the statements in the June 1946 Affidavit for Philippine Army Personnel, the Board notes that this document was signed and affirmed by the Veteran.  Moreover, the Board notes that this document, at least in part, was used to support the determination that the Veteran had recognized guerrilla service.  In light of these contradictory statements, any current assertions as to experiencing arthritis of the knees and ankles during service or continuously since service, advanced in furtherance of the appeal, are deemed not credible. 

Furthermore, there is no competent evidence or opinion even suggesting that there exists a medical nexus between the arthritis of the ankle or knees diagnosed years after the Veteran's discharge and service.  None of the treatment records reflect any such opinion or even comment to that effect, and the Veteran has not presented or identified any such existing medical evidence or opinion.  

As for any direct assertions by the Veteran that there exists a medical relationship between his arthritis and service, the Board finds that no such assertions provide persuasive evidence in support of the claim.  The matter of the etiology of the disability here at issue is one within the province of trained professionals.  See Jones, supra.  As the Veteran has not been shown to be other than a layperson without the appropriate training and expertise, none is competent to render a probative (i.e., persuasive) opinion the medical matter upon which this claim turns.  
See, e.g., Bostain, supra;  see also Routen, supra.  Moreover, the Board notes that while the Veteran's sister, who indicated that she was a registered nurse, may have the appropriate training and expertise to render such a probative etiological opinion, her December 2011 statement provided no such etiological opinion as to the Veteran's claimed arthritis of the ankles and feet.  Hence, the lay assertions of medical nexus have no probative value.  

For all the foregoing reasons, the claim for service connection for arthritis of the knees and ankles must be denied.  In reaching the conclusion to deny the claim, 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); 38 C.F.R. § 3.102; Gilbert, supra.  

III.  SMC

With respect to payment of special monthly compensation, compensation at the aid and attendance rate is payable when the Veteran, due to service-connected disability, has suffered the anatomical loss or loss of use of both feet or one hand and one foot, or is blind in both eyes, or is permanently bedridden or so helpless as to be in need of regular aid and attendance.  38 U.S.C.A. § 1114(l); 38 C.F.R. 
§ 3.350(b)(3). 

Service connection has not been awarded for any disability.  Under these circumstances, the Veteran does not meet the basic eligibility requirements for entitlement to SMC his claim, therefore, must be denied.  See Sabonis, supra (where the law and not the evidence is dispositive, the claim should be denied or the appeal terminated because of the absence of legal merit or the lack of entitlement under the law).
 

ORDER

Service connection for arthritis of the feet, ankles and knees is denied.

Entitlement to SMC is denied.



____________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs