Citation Nr: 1339495 Decision Date: 12/02/13 Archive Date: 12/13/13 DOCKET NO. 10-43 227 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for degenerative changes of the feet. 2. Entitlement to service connection for a disability of the thoracolumbar spine. 3. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU). 4. Entitlement to nonservice-connected pension. ATTORNEY FOR THE BOARD J. Castillo, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from October 1979 to October 1983. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in March 2010 of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran requested a hearing before a member of the Board. He was notified of his scheduled May 2011 hearing, but did not attend the hearing and subsequently presented good cause for a new hearing. He was notified of his scheduled October 2011 hearing by letter in September 2011, but did not attend or subsequently request a new hearing. His hearing request is deemed withdrawn. In August 2011, the Board remanded the case for further development, which has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. Degenerative changes of the feet were not affirmatively shown to have been present during service; degenerative changes of the feet were not manifested to a compensable degree within one year from the date of separation from service in October 1983; and degenerative changes of the feet, first diagnosed after service beyond the one-year presumptive period for a chronic disease, are unrelated to an injury, disease, or event in service. 2. A disability of the thoracolumbar spine was not affirmatively shown to have had its onset during service; and a disability of the thoracolumbar spine is unrelated to an injury, disease, or event in service. 3. The Veteran has no service-connected disabilities. 4. The Veteran did not serve on active duty during a period of wartime. CONCLUSIONS OF LAW 1. The criteria for service connection for degenerative changes of the feet have not been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 2. The criteria for service connection for a disability of the thoracolumbar spine have not been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2013). 3. The criteria for a total disability rating for compensation based on individual unemployability have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.159, 4.16 (2013). 4. The criteria for basic eligibility for VA nonservice-connected pension have not been met. 38 U.S.C.A. § 1501 (West 2002); 38 C.F.R. §§ 3.2, 3.3 (2013). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify When VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The RO provided pre-adjudication VCAA notice by letters, dated in December 2008, January 2009, and October 2009. As for the content and the timing of the VCAA notices, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (pre-adjudication VCAA notice); of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained VA records, private medical records, and some service treatment records. VA attempted to obtain additional service treatment records from the Records Management Center, but such attempts were unsuccessful. The RO issued a formal finding of the unavailability of the records, and notified the Veteran in a letter in October 2009. As to the claim of service connection for degenerative changes of the feet, the Veteran was afforded a compensation examination in December 2009. As the examination was based on a review of the Veteran's history and as the examiner described the disability in sufficient detail so that the Board's review is a fully informed one, the examination report is adequate to decide the claim. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disabilities in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). As to the claim of service connection for a disability of the thoracolumbar spine, VA must provide a VA medical examination or obtain a medical opinion if the evidence of record is insufficient to decide the claim. While there is evidence of a current disability, the evidence does not indicate that the claimed disability may be associated with an established event, injury, or disease in service. For this reason, a VA medical examination or medical opinion is not necessary to decide the claim. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Principles and Theories of Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active military service or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active military service. 38 U.S.C.A. § 1131 (peacetime service). Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. All three elements must be proved. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Several legal theories operate in conjunction with 38 U.S.C.A. 38 U.S.C.A. § 1131 as implemented in 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished an affirmative showing of inception during service. 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for a chronic disease, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. § 1131; 38 C.F.R. §§ 3.307, 3.309. Evidentiary Standards VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and from the weight of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competency is a question of fact, which is to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the weight or probative value of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Degenerative Changes of the Feet Evidence Majority of the service treatment records are unavailable. The Veteran, however, submitted a service treatment record dated in November 1979 that shows complaints of bilateral foot pain for two months. He was placed on profile for foot pain. There was no diagnosis. After service, the Veteran suffered several work-related injuries as a parking meter reader from September 2001 to February 2005. As a result, his employer, the Commission of Public Works, afforded him physical therapy. In September 2001, the Veteran claimed that he suffered a puncture wound of the right foot after he stepped on a nail. On physical examination, the physician was unable to find any evidence of injury or puncture. An X-ray showed mild osteoarthritis at the hallux metatarsophalangeal joint. Charleston Podiatry records dated October 2001 show a diagnosis of plantar fasciitis of the right foot. Therapy records in July 2003 show that the Veteran began to experience bilateral foot pain after a work-related fall in May 2003. Records in January 2005 show that the Veteran injured his left ankle during a work-related fall. Physician examination showed no objective findings. Follow-up examination in February 2005 also showed no findings. The physician noted that when the Veteran walked out of the office, he limped on his right foot and sometimes he limped on his left foot. VA records from June 2007 to May 2008 show no complaint, treatment, or diagnosis, pertaining to the feet. VA records July 2008 show that the Veteran gave a history of foot problems since service. The diagnosis was probable plantar fasciitis. X-rays showed hallux valgus deformity with osteoarthritis changes of the first toes. Records from October 2009 show continuing complaints of foot pain. On VA examination in December 2009, the Veteran gave a history of foot pain since basic training. Degenerative changes of the feet were diagnosed. The VA examiner expressed the opinion that degenerative changes of the feet were not related to military service. The rationale was that VA records do not show any complaints related to foot pain until 2008, which is almost 30 years after service. Analysis The Veteran asserts that his current bilateral foot disability was incurred during basic training. The Veteran is competent to describe foot pain in service, which is within the realm of his personal experience. 38 C.F.R. § 3.159 (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); see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness). As the available service treatment records do not show any treatment, diagnosis, or X-rays suggestive of degenerative changes of the feet, the evidence is inconclusive to award service connection on the basis of affirmatively showing inception of degenerative changes of the feet in service under 38 C.F.R. § 3.303(a). The Veteran's duties in basic training, which required marching, answers the question of what happened, but does not answer the questions of current disability of the feet or of a relationship or nexus to an injury in service and the current disability of the feet. Competent and credible evidence is still required to establish the current disability and nexus to service. As there is competent evidence of an injury in service, the principles of service connection, pertaining to chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) are addressed. Chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) apply to degenerative changes of the feet, because degenerative joint disease or arthritis is a chronic disease listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). As most of the service treatment records are missing, and on the basis that a degenerative changes of the feet was not shown in service, the evidence is inconclusive on the theory of service connection, based on chronicity under 38 C.F.R. § 3.303(b). As for continuity of symptomatology, the elements to establish continuity are: (1) that the condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology noted in service; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Walker, at 1335-36, 40 (overruling in part Barr v. Nicholson, 21 Vet. App. 303, and Savage v. Gober, 10 Vet. App. 488, 497 (1997) to extent that 38 C.F.R. § 3.303(b) was applied to diseases not listed in 38 C.F.R. § 3.309(a), while addressing the elements of continuity of symptomatology). The Veteran is competent to describe bilateral foot pain in service and to state that his current foot problems are a continuation of what happened in service. 38 C.F.R. § 3.159; Layno, at 71. To this extent, the Veteran's lay statements and testimony are competent evidence of postservice continuity of symptomatology, which is an expression of a causal relationship or nexus between the current disability and continuity of symptoms. As the statements and testimony are inferences based on facts, it is an opinion rather than a statement of fact. The question then is whether the Veteran, as a lay person, is competent to offer an opinion as to a causal relationship or nexus between the current degenerative changes of the feet and the postservice symptomatology he avers. The Veteran, as a lay person, is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Veteran as lay person is also competent to identify a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Degenerative changes of the feet is not simple medical condition the Veteran is competent to identify, because the diagnosis falls outside the realm of common knowledge of a lay person, that is, the diagnosis cannot be made based on mere personal observation, which comes through sensory perception. And it is not argued or shown that the Veteran is otherwise qualified through specialized education, training, or experience to identify degenerative changes of the feet. Also degenerative joint disease or arthritis is not a type of condition under case law that has been found to be capable of lay observation. See Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfeet are capable of lay observation); see McCartt v. West, 12 Vet. App. 164, 167 (1999) (a skin condition is capable of lay observation; see Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus is capable of lay observation); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); and see Jandreau, at 1377, n. 4 (a lay witness is capable of diagnosing a dislocated shoulder or a simple medical condition, for example a broken leg, but not, for example, a form of cancer). Applying the guidance of current case law, degenerative changes of the feet is an internal process and more analogous to rheumatic fever than flatfeet, a skin condition, tinnitus, varicose veins, a dislocated shoulder, or a broken leg. For this reason, degenerative changes of the feet are not a type of condition under case law that has been found to be capable of lay observation. As degenerative changes of the feet is not the type of condition that can be identified based on personal observation either as a simple medical condition under Jandreau, or by case law, any inference based on what is not personally observable cannot be competent lay evidence. And no factual foundation has been established to show that the Veteran is otherwise qualified through specialized education, training, or experience to offer an opinion on the causal relationship or nexus between the current degenerative changes of the feet and the continuity of symptoms that the Veteran avers. For these reasons, the Veteran's lay opinion is not competent evidence of a causal relationship or nexus between the current disability and the postservice symptomatology. Since the Veteran's lay opinion is not competent evidence, the lay opinion is excluded, that is, not admissible as evidence and cannot be considered as competent lay evidence favorable to claim based on continuity of symptomatology. As the evidence is not admissible, the Board need not reach the credibility of the evidence. Although service connection for degenerative changes of the feet, is not established under either 38 C.F.R. § 3.303(a) or by chronicity or by continuity of symptomatology under 38 C.F.R. § 3.303(b), service connection may still be established based on an initial diagnosis after service, when all of the evidence, including that pertinent to service, shows that the disability was incurred in service. 38 C.F.R. § 3.303(d). Where, as here, there is a question of the presence or a diagnosis of degenerative changes of the feet, which is not capable of lay observation as a simple medical condition under Jandreau or the type of a medical condition capable of lay observation by case law, for the reasons expressed, to the extent the Veteran's lay evidence is offered as proof of the presence of degenerative changes of the feet in service and since service, the Veteran's lay evidence is not competent evidence, and the lay evidence is not admissible as evidence and cannot be considered as competent evidence favorable to the claim. To the extent the Veteran associates a marching-type injury to the current degenerative changes of the feet, the Veteran's lay opinion is not competent evidence on the question of medical causation, because the claimed disability is a not simple medical condition, capable of lay observation. Davidson, at 1316. And it is not argued or shown that the Veteran is otherwise qualified through specialized education, training, or experience to offer such an opinion. Since the Veteran's lay opinion is not competent evidence, his opinion is excluded, that is, not admissible as evidence and cannot be considered as competent evidence favorable to the claim. The only competent medical evidence of record pertaining to causation or a nexus to service consists of the VA examination report dated in December 2009. In the December 2009 VA examination report, the VA examiner expressed the opinion that degenerative changes of the feet were not related to military service, because the Veteran did not complain of foot problems until about 30 years after service. The opinion constitutes competent and persuasive medical evidence against the claim. As there is no competent lay evidence pertaining to a nexus between the current disability and an injury, event, or disease in service, including an injury sustained while marching, and no medical evidence in favor of the claim, the preponderance of medical evidence is against the claim, considering the heightened obligation to consider carefully the benefit-of-the-doubt standard of proof. 38 U.S.C.A. § 5107(b); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Thoracolumbar Spine Facts The available service treatment records show no complaint, treatment, or diagnosis, pertaining to the back. After service physical therapy records show that the Veteran suffered several work-related back injuries as a parking meter reader from January 2000 to January 2005. In January 2000, the Veteran injured his back in a work-related motor vehicle accident. He was diagnosed with paraspinal sprain and mild degenerative disc disease. The Veteran continued to complain of pain in February 2000. Physical examination showed no objective findings. In May 2003, the Veteran injured his lower back after a work-related fall. Physical therapy records in May 2003 show that he gave a history of low back pain since the injury in January 2000. The diagnosis was paraspinal muscle strain. In September 2003, the Veteran reported pain throughout the left side of his back since September 28, 2003. Physical examination showed no objective findings. The physician expressed the opinion that there must be some psychological explanation for the Veteran's symptoms of pain. On physical examination for another work-related back injury in January 2005, the Veteran complained of back pain. On physical examination, the examination found "no objective findings at all," and stated that the Veteran appeared to have a very low pain threshold and may be magnifying his complaints. VA records from June 2007 to May 2008 show no complaint, treatment, or diagnosis, pertaining to the back. VA records from July 2008 show that the Veteran gave a history of back problems since service. Chronic back pain was diagnosed. Notes in February 2009 show continued back pain. Analysis The Veteran asserts that his current back disability was incurred in service. He maintains that one morning, during basic training, he could not get out of bed due to back pain. He does not point to any particular event or injury that caused the pain. And he contends that the pain has continued since service. The Veteran is competent to report back pain in service, which is within the realm of his personal experience. 38 C.F.R. § 3.159; see Layno, 6 Vet. App. at 469-71. However, like degenerative changes of the feet discussed above, a disability of the thoracolumbar spine, to include degenerative disc disease and paraspinal sprain, is not simple medical condition the Veteran is competent to self-diagnose, because the diagnosis falls outside the realm of common knowledge of a lay person, that is, the diagnosis cannot be made based on mere personal observation, which comes through sensory perception. See Jandreau, at 1377, n. 4. And it is not argued or shown that the Veteran is otherwise qualified through specialized education, training, or experience to identify degenerative disc disease or paraspinal sprain. As most of the service treatment records are unavailable and the available service treatment records do not show any treatment, diagnosis, or complaints suggestive of degenerative disc disease or paraspinal sprain, the evidence is inconclusive to award service connection on the basis of affirmatively showing inception of degenerative changes of the feet in service under 38 C.F.R. § 3.303(a). As for a thoracolumbar spine disability to include degenerative disc disease and paraspinal strain, chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) do not apply, because degenerative disc disease and paraspinal sprain are not chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker, 708 F.3d at 1338-40 (Fed. Cir. 2013) (chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) do not apply to a disease not listed in 38 C.F.R. § 3.309(a)). Although service connection for a disability of the thoracolumbar spine is not established under either 38 C.F.R. § 3.303(a) or by chronicity or by continuity of symptomatology under 38 C.F.R. § 3.303(b), service connection may still be established based on an initial diagnosis after service, when all of the evidence, including that pertinent to service, shows that the disability was incurred in service. 38 C.F.R. § 3.303(d). To the extent that the Veteran associates his current back disability to an injury in service, his lay opinion is not competent evidence on the question of medical causation, because the claimed disability is not a simple medical condition, capable of lay observation. Davidson, at 1316. Since the Veteran's lay opinion is not competent evidence, his opinion is excluded, that is, not admissible as evidence and cannot be considered as competent evidence favorable to the claim. The medical evidence of record is absent any complaint, treatment, or diagnosis of a disability of the thoracolumbar spine until the Veteran began physical therapy for a work-related, motor vehicle accident in January 2000. The medical evidence of record is absent any suggestion that the current disability of the thoracolumbar spine may be related to an injury, event, or disease in service. As the preponderance of the evidence is against the claim of service connection for a disability of the thoracolumbar spine, there is no doubt to be resolved and service connection for a disability of the thoracolumbar spine is not warranted. 38 U.S.C.A. § 5107(b). Total Disability Rating for Compensation based on Individual Unemployability A total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. A total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. A total disability rating for compensation requires at least one service-connected disability. As the Veteran has no service-connected disability, there is no factual or legal merit to the claim. As the preponderance of the evidence is against the claim, there is no doubt to be resolved and a total rating is not warranted. 38 U.S.C.A. § 5107(b). Nonservice-Connected Pension Nonservice-connected pension benefits are payable to a Veteran who meets certain wartime service, disability, and income requirements. 38 U.S.C.A. § 1521. The wartime service requirement is a statutory requirement for the benefit under 38 U.S.C.A. § 1521, and cannot be waived by VA. See Davenport v. Principi, 16 Vet. App. 522 (2002) (VA does not have authority to waive a statutory requirement, unless waiver is provided for in the statute). Under 38 U.S.C.A. § 1521, a Veteran meets the wartime service requirements for VA nonservice-connected pension if he served in the active military, naval, or air service: (1) for ninety days or more during a period of war; (2) during a period of war and was discharged or released from such service for a service-connected disability; (3) for a period of ninety consecutive days or more and such period began or ended during a period of war; or (4) for an aggregate of ninety days or more in two or more separate periods of service during more than one period of war. 38 U.S.C.A. § 1521. The specific dates encompassing the "periods of war" are defined by statute. 38 U.S.C.A. § 101(11). The "Vietnam era" ended May 17, 1975, and the next formally defined period of war, the "Persian Gulf War," began on August 2, 1990, and is still ongoing. 38 U.S.C.A. §§ 101(29), (33), 1501(4); and 38 C.F.R. § 3.2(f) and (i). According to the Veteran's DD 214, he served on active duty from October 1979 to October 1983. His active duty period was entirely outside a "period of war," as defined by statute, that is, after the "Vietnam era" and before the "Persian Gulf War". As the Veteran does not have qualifying wartime service, basic eligibility for nonservice-connected pension is not established. Since the Veteran's claim fails because of the lack of entitlement under the law, the claim must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Service connection for degenerative changes of the feet is denied. Service connection for a disability of the thoracolumbar spine is denied. A total disability rating for compensation based on individual unemployability is denied. Non-service connected pension is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs