Citation Nr: 1509216 Decision Date: 03/03/15 Archive Date: 03/17/15 DOCKET NO. 13-01 293 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for flat feet (pes planus). 2. Entitlement to service connection for headaches. 3. Entitlement to service connection for a cyst/tumor/growth on the head and neck. 4. Entitlement to service connection for a respiratory disorder (claimed as trouble breathing, constant chest congestion, and coughing). ATTORNEY FOR THE BOARD N. Sangster, Associate Counsel INTRODUCTION The Veteran had active military service from March 1976 to February 1980. This appeal to the Board of Veterans' Appeals (Board/BVA) is from an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). More recently, in October 2013, the Board remanded these claims to the Agency of Original Jurisdiction (AOJ) for further development, including having the Veteran undergo VA examinations for medical opinions concerning the nature and etiology of these claimed disabilities - particularly insofar as their posited relationship with his military service. FINDINGS OF FACT 1. The probative (meaning competent and credible) medical and other evidence of record indicates the Veteran's pre-existing pes planus was not exacerbated by his military service (meaning permanently worsened beyond its natural progression). 2. The probative medical and other evidence of record also indicates his headaches, cyst/tumor/growth on his head and neck, and respiratory disorder are not the result of his military service. CONCLUSION OF LAW The pes planus, headaches, cyst/tumor/growth on the head and neck, and respiratory disorder were not incurred in or aggravated by his service and may not have been presumed to have been. 38 U.S.C.A. §§ 1131, 1153 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Duties to Notify and Assist As provided by the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits upon receipt of a complete or substantially complete application. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2014). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist the claimant in obtaining; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). Regarding his claims for pes planus and cyst/tumor/growth on his head and neck, a September 2008 letter was sent to the Veteran providing this required information. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). He was duly notified of the evidence needed to substantiate these claims, of the information and evidence that VA would obtain, and of the information and evidence he was expected to provide, and told that VA would assist him in obtaining supporting evidence, but that it was his ultimate responsibility to provide VA any evidence pertaining to these claims. He was also apprised of how VA determines a "downstream" disability rating and effective date in the eventuality service connection was granted. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). In addition, concerning his claims for headaches and a respiratory disorder, including due to his alleged exposure to asbestos, as directed by the Board's October 2013 remand, an October 2013 letter was sent to him in compliance with DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) and M21-1, Part IV. M21-1MR, Part IV, Subpart ii, Chapter 1, Section H, Topic 29; DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). He therefore has received all required notice concerning his claims. Moreover, a February 8, 2013 Memorandum from a VA Military Records Specialist indicates the Veteran's service treatment records (STRs) for the duration of his active duty service are unavailable. The reports of his entrance and separation examinations are of record, though. The Memorandum explains that the procedures for obtaining these additional records were followed, that all efforts to obtain them have been exhausted, and that further attempts to obtain them would be futile. See 38 C.F.R. § 3.159(c)(2) and (e)(1). See also Chest v. Peake, 283 Fed. App. 814 (Fed. Cir. 2008); 38 C.F.R. § 3.159(c)(2) (providing that VA will end its efforts to obtain records from a Federal department or agency only if VA concludes the records sought do not exist or that agency advises VA the requested records do not exist or that the custodian does not have them). Also pursuant to the Board's October 2013 remand directive, additional attempts were made to obtain any other records indicating the Veteran was exposed to asbestos during his service. To this end, his military personnel file was obtained showing the jobs he performed in service. The law provides that when, through no fault of the Veteran, records under the control of the Government are unavailable, the obligation to explain findings and conclusions and to consider carefully the benefit-of-the-doubt rule is heightened. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); Dixon v. Derwinski, 3 Vet. App. 261, 263 (1992). To this end, VA must advise the Veteran of his right to support his claim and try and compensate for this missing evidence by submitting alternate sources of evidence, including service treatment or personnel records or lay evidence such as "buddy" affidavits or statements. Id.; see also 38 C.F.R. § 3.159(e). See, too, Moore v. Derwinski, 1 Vet. App. 401 (1991) (holding that this heightened duty also includes the obligation to search for alternative records, such as by having the Veteran complete and return VA Form 13055 allowing for the search for evidence from the National Archives and Records Administration (NARA) or for extracts or other evidence from the Surgeon General's Office (SGO)). The Board must also point out, however, that the O'Hare precedent does not raise a presumption that the missing medical records, if available for consideration, necessarily would support the claim. That is to say, missing STRs do not lower the threshold for an allowance of a claim; there is no reverse presumption for granting a claim. The legal standard for proving a claim is not lowered; rather, the Board's obligation to discuss and evaluate evidence is heightened. See Russo v. Brown, 9 Vet. App. 46 (1996). The case law does not establish a heightened "benefit of the doubt," only a heightened duty of the Board to consider the applicability of the benefit-of-the-doubt doctrine, to assist the claimant in developing the claim, and to explain its decision when a claimant's medical records have been lost or destroyed. See Ussery v. Brown, 8 Vet. App. 64 (1995). Thus, missing STRs, alone, while indeed unfortunate, do not obviate the need for the Veteran to still have competent and credible evidence supporting his claim for service connection by suggesting a correlation between his claimed condition and his military service. See Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore, 1 Vet. App. at 406 and O'Hare, 1 Vet. App. at 367). Further, in accordance with the Board's October 2013 remand directive, the Veteran was provided VA examinations for these claimed conditions in April 2014. The VA examinations and opinions are adequate for deciding these claims. Specifically, the examiners reviewed the claims file for the pertinent medical history, examined the Veteran personally, and provided clear explanation for the opinions offered, which are consistent with the other evidence of record and enable the Board to make an informed decision on these claims. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). VA's duty to assist therefore has been met. In light of all this additional development of these claims that has occurred, there was compliance, certainly substantial compliance, with the October 2013 remand directives, in turn allowing the Board to proceed with its adjudication of these claims. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999). II. General Statutes, Regulations and Precedent Cases Governing Claims of Entitlement to Service Connection In order to establish entitlement to service connection for a claimed disability, the facts must demonstrate that a disease or an injury resulting in current disability was incurred in active military service in the line of duty or, if pre-existing service, was aggravated during service beyond its natural progression. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a) (2014). 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) (2014). Service connection on a direct-incurrence basis requires competent and credible evidence showing: (1) the Veteran has the alleged disability or, at the very least, indicating he has at some point since the filing of his claim; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship or nexus 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), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). The Federal Circuit Court nonetheless 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. Nicolson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). But in determining whether statements submitted by a Veteran are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on his behalf. Caluza v. Brown, 7 Vet. App. At 711, aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). Further, the Federal Circuit Court has held that, while the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Consider also that a Veteran is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Whether lay versus medical evidence is needed to support a claim is determined on a case-by-case basis and dependent on the type of condition being claimed. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Once evidence is determined to be competent, the Board must additionally determine whether the evidence also is credible, as only then does it ultimately have probative value. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) and Layno v. Brown, 6 Vet. App. 465, 469 (1994) ("[Competency] is a legal concept determining whether testimony may be heard and considered by the trier of fact, while [credibility] is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.") In order to grant a Veteran's claim of entitlement to service connection for an alleged disability, VA must examine the evidence and determine whether the claim is supported or the evidence for and against it is in relative equipoise, meaning about evenly balanced, with the Veteran prevailing in either event, or whether instead a preponderance of the evidence is against the claim, in which case the claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. See also 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, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. A. Whether Service Connection is Warranted for Flat Feet (Pes Planus) As concerning this claim, the Board sees that, during the Veteran's February 1976 military entrance examination, it was noted that he had "mild" pes planus (so flat feet), albeit that was asymptomatic. 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 2014). Only such conditions as are recorded in examination reports are considered as "noted." 38 C.F.R. § 3.304(b) (2014). 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). Conversely, if, as here, 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 the Veteran can only claim entitlement to service connection based on aggravation of the disorder. Smith v. Shinseki, 24 Vet. App. 40, 47 (2010); Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). Moreover, he, not VA, 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, albeit regardless of whether the degree of worsening was enough to warrant compensation. 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). Evidence of a prolonged period without medical complaint can be considered, along with other factors concerning the Veteran's health and medical treatment during and after military service, as evidence of whether a pre-existing condition was aggravated by military service. Maxon v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Here, as already alluded to, the Board's October 2013 remand directed the AOJ to obtain a VA examination and opinion regarding the likelihood the Veteran's military service had chronically aggravated his pre-existing pes planus, meaning permanently worsened this condition beyond its natural progression. To this end, the Veteran had a VA examination in April 2014. He reported being seen and treated for foot pain while in service with the only treatment provided being limited-duty profiles. He said he had experienced progressive symptoms of foot pain and callus development since his service. The examiner diagnosed bilateral pes planus and bilateral hallux valgus. The examiner observed the Veteran had painful plantar hyperkeratotic lesions plantar at his 2nd and 5th metatarsophalangeal joints (MTPJ). In addition, imaging studies revealed hallux valgus deformity with mild 1st MTPJ arthritic change. The examiner, however, opined that the Veteran's pes planus, which clearly and unmistakably existed prior to his military service, was not aggravated beyond its natural progression by an in-service event, injury or illness. The examiner explained that the Veteran's characteristic calluses and hallux valgus along with radiographic examination did not show findings consistent with worsening of a flatfoot condition beyond its natural progression. Consequently, the evidence of record fails to show the Veteran's pre-existing pes planus increased in severity during or as a result of his service to the point of concluding it was aggravated, meaning worsened above and beyond its natural progression. The VA examiner charged with making this important determination competently and credibly observed that the Veteran's current hallux valgus and arthritis were separate and distinct from the progressive worsening of pes planus, and that the worsening of the pes planus (to the extent there has been) was not beyond what normally would be expected of someone having this condition. Accordingly, the preponderance of the evidence weighs against this claim and it resultantly must be denied. B. Whether Service Connection is Warranted for a Cyst/Tumor/Growth on the Head and Neck, Headaches, and Respiratory Disorder The Veteran attributes the cysts on his head and neck, headaches, and respiratory disorder to his military service. In particular, with regards to his respiratory disorder and headaches, he claims they are due to exposure to asbestos during his service. As already alluded to, the Veteran had VA examinations in April 2014 in accordance with the Board's December 2013 remand directive to determine the nature and etiology of these claimed conditions, particularly for medical comment concerning their posited relationship with his military service. Concerning the cysts on his head and neck, the examiner determined they were not related to the Veteran's military service. He observed that the Veteran had no cysts present on examination. He indicated the Veteran's scalp had normal hair growth with just a small area of scar tissue on the right scalp with normal hair growth. The Veteran's right postauricular had a linear well healed scar with no cyst present. There were keloidal scars on his chest from removal of cysts. The examiner explained that cysts are benign normal growths and removal is elective, so the removal of the Veteran's scar on his right postauricular was elective as well as induction of keloid scars on chest that were the result of an excision of cysts. Thus, the examiner concluded that the Veteran's keloid scars were not related to his military service because they were caused by elective removal of cysts. The examiner further commented that the cysts, themselves, were not related to the Veteran's military service because they are common benign conditions in the general population. Regarding the Veteran's headaches, the examiner indicated the Veteran had developed a cyst around one and a half inches in diameter over the vertex. Thereafter, the Veteran had developed another one on the chest and third over the right side of the head behind the ear. All three cysts were surgically removed. The examiner observed that the chest lesion formed a keloid, oozing out some serosanguineous fluid. The examiner noted that the Veteran's headaches had started around six months after his surgery and that the pain was localized to the right side of the head. The Veteran reported seeking medical attention while in service and being given Ibuprofen. But the examiner nevertheless concluded the Veteran's headaches were less likely than not incurred in or caused by the claimed in-service injury, event or illness. In explanation, she stated that, although the Veteran was reportedly exposed to asbestos, his headaches started only after the surgery to remove the cysts on his scalp. The examiner further observed that the Veteran's headaches had started at the site of the surgical incision. So inasmuch as the cysts have not been attributed to the Veteran's service, so, too, have the headaches not been, even if attributable to the cysts are the scars associated with their removal. See 38 C.F.R. § 3.310(a) and (b). During his VA respiratory examination, the Veteran stated that for the past 20 years he had experienced occasional shortness of breath, which would come on at rest, and occasionally after walking a mile. He reported that in service he was a diesel mechanic and worked around trucks. He then went on to note that he had serviced many asbestos-laden brakes while in the military and, in that way, believed he was exposed to asbestos, which in turn affected his lungs and is the reason he now has respiratory impairment. He denied working with or around asbestos either before or after his service. The examiner noted the Veteran did not take any respiratory medications and had not been diagnosed with any respiratory problem in the past. He observed that, although the Veteran's chest X-ray was normal, his pulmonary function test (PFT) results were suggestive of mild restrictive pulmonary disease. But as for the etiology of this disease, the examiner concluded it was less likely than not that the Veteran's respiratory problem was incurred in or caused by the asbestos exposure he experienced while in service. He explained that the most important tool to diagnose asbestos is the chest X-ray, which should show pulmonary fibrosis and pleural plaquing consistent with asbestosis. The examiner commented that the Veteran's chest X-ray, however, was normal and did not have indication of pulmonary fibrosis or pleural plaquing. He therefore concluded that it was less likely than not that the Veteran had asbestosis or other asbestos-exposure-related disease. In McGinty v. Brown, 4 Vet. App. 428, 432 (1993), the Court observed that there had been no specific statutory guidance with regard to claims for service connection for asbestosis and other asbestos-related diseases, nor had the Secretary of VA promulgated any regulations. However, as alluded to already, VA has issued a circular on asbestos-related diseases entitled Department of Veterans Benefits, Veteran's Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) (hereinafter "DVB Circular"), which provides some guidelines for considering compensation claims based on exposure to asbestos. The DVB circular was subsumed verbatim as § 7.21 of Adjudication Procedure Manual, M21-1, Part VI. (This has now been reclassified in a revision to the Manual at M21-1MR, Part IV, Subpart ii, Chapter 2, Section C). See also VAOPGCPREC 4-2000 (April 13, 2000). The applicable section of Adjudication Procedure Manual M21-1 notes that inhalation of asbestos fibers can produce fibrosis and tumors. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx as well as the urogenital system (except the prostate) are also associated with asbestos exposure. See Adjudication Procedure Manual, M21-1, Part IV, 7.21(a)(1). Some of the major occupations involving exposure to asbestos include mining; milling; work in shipyards; insulation work; demolition of old buildings; carpentry and construction; and manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, military equipment, etc. Exposure to any simple type of asbestos is unusual except in mines and mills where the raw materials are produced. See id. at 7.21(b)(1). The latent period for asbestos-related diseases varies from 10 to 45 years or more between first exposure and development of disease. Also of significance is that exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). See id. at 7.21(b)(2). Neither the Manual M21-1 nor the DVB Circular creates a presumption of exposure to asbestos solely from a particular occupation. Rather, they are guidelines which serve to inform and educate adjudicators as to the high exposure of asbestos and the prevalence of disease found in particular occupations, and they direct that the raters develop the record, ascertain whether there is evidence of exposure before, during, or after service, and determine whether the disease is related to the putative exposure. See Dyment v. West, 13 Vet. App. 141, 146 (1999); see also Nolen v. West, 12 Vet. App. 347 (1999); VAOPGCPREC 4-2000. Consequently, after considering this and the other evidence of record in relation to the applicable statutes and regulations, the Board concludes that service connection for this claimed condition is not warranted. While the evidence confirms the Veteran has mild restrictive pulmonary disease, the evidence does not also establish the required linkage ("nexus") between this disease and his military service, including especially exposure to asbestos. In discussing the underlying rationale of his unfavorable medical nexus opinion, the VA respiratory examiner pointed out that the Veteran does not have the required radiographic indication of asbestosis or other asbestos-exposure-related disease, especially when considering the normal chest X-ray findings. Resultantly, the medical evidence of record fails to support the Veteran's contention that this claimed condition is attributable to his military service and, in particular, to exposure to asbestos. While the Veteran believes these conditions now being claimed are a result of his military service, these are not the type of conditions ("simple" rather than medically complex) allowing him to contradict the VA examiners' conclusions regarding these diseases' origins. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (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). For these reasons and bases, the Board finds that the preponderance of the evidence is against these claims of entitlement to service connection for cyst/tumor/growth on the head and neck, headaches, and a respiratory disorder. Accordingly, the benefit-of-the-doubt rule does not apply, and these claims resultantly must be denied. See 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). ORDER The claim of entitlement to service connection for flat feet (pes planus) is denied. The claim of entitlement to service connection for headaches is denied. The claim of entitlement to service connection for a cyst/tumor/growth on the head and neck is denied. The claim of entitlement to service connection for a respiratory disorder (claimed as trouble breathing, constant chest congestion, and coughing) is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs