Citation Nr: 1601524 Decision Date: 01/14/16 Archive Date: 01/21/16 DOCKET NO. 09-16 692 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for a disability manifested by bilateral leg pain. 2. Entitlement to service connection for a bladder disability. 3. Entitlement to service connection for a disability manifested by breathing problems. 4. Entitlement to service connection for a heart disability. 5. Entitlement to service connection for prostate cancer. 6. Entitlement to service connection for residuals of a spinal cord injury. REPRESENTATION Appellant represented by: National Association for Black Veterans, Inc. ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from January 1953 to December 1954. These matters are before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision by the Seattle, Washington Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. Any disability manifested by bilateral leg pain was not manifested in service or for many years thereafter, and the preponderance of the evidence is against a finding that such disability is related to the Veteran's service. 2. A bladder disability was not manifested in service or for many years thereafter, and the preponderance of the evidence is against a finding that the Veteran's bladder neck obstruction is related to his service. 3. A disability manifested by breathing problems, to include asthma, was not manifested in service or for many years thereafter, and preponderance of the evidence is against a finding that the Veteran's asthma is related to his service 4. A heart disability was not manifested in service or for many years thereafter, and the preponderance of the evidence is against a finding that the Veteran's heart disability is related to his service. 5. Prostate cancer was not manifested in service or for many years thereafter, and the preponderance of the evidence is against a finding that the Veteran's prostate cancer is related to his service. 6. A spinal cord injury in service is not shown; the preponderance of the evidence is against a finding that the Veteran's residuals of a spinal cord injury are related to his service. CONCLUSIONS OF LAW 1. Service connection for a disability manifested by bilateral leg pain is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. § 3.303 (2015). 2. Service connection for a bladder disability is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. § 3.303 (2015). 3. Service connection for a disability manifested by breathing problems is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. § 3.303 (2015). 4. Service connection for a heart disability is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015). 5. Service connection for prostate cancer is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015). 6. Service connection for residuals of a spinal cord injury is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. § 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits; it applies in the instant case. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). By correspondence in September 2008, VA notified the Veteran of the information needed to substantiate and complete his claims, to include notice of the information that he was responsible for providing, the evidence VA would attempt to obtain, and how VA assigns disability ratings and effective dates of awards. It is not alleged that notice was less than adequate. The Veteran's service treatment records (STRs) are unavailable. He was so advised by a December 2011 letter, and was asked to provide information concerning any treatment he received for the claimed disabilities in service and submit any documents that could substitute for the STRs, including statements from military medical personnel, buddy statements, medical evidence following service, etc. In October 2012, VA made a formal determination the Veteran's service records are unavailable, and listed the efforts made to secure the records. In such circumstances VA has a heightened duty to explain its findings and conclusions and to consider carefully the benefit of the doubt rule. Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board's analysis of these claims is undertaken with this duty in mind. Notably, the cited caselaw does not lower the legal standard for proving a claim of service connection but rather increases the Board's obligation to evaluate and discuss in its decision all the evidence that may be favorable to the Veteran. Russo v. Brown, 9 Vet. App. 46 (1996). The Veteran's VA and private medical records have been secured. He has not been afforded a VA examination in connection with these claims. As there is no evidence that any claimed disability may be related to his service, even the low threshold standard for determining when an examination to secure a medical opinion is necessary is not met (see McLendon v. Nicholson, 20 Vet.App. 79 (2006), and an examination to secure a medical opinion in these matters is not necessary. He has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background and Analysis The Board has reviewed all of the evidence in the Veteran's VA record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that each item of evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board will summarize the evidence as deemed appropriate, and the analysis below will focus specifically on what the evidence shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). With a February 2004 claim for VA pension benefits the Veteran indicated that his prostate cancer had its onset in 1994, and that he underwent a cervical and thoracic fusion in 1986. On September 2004 VA examination for housebound status or need for aid and attendance, it was noted that the Veteran could not drive because of a neck fusion at the first two segments of the thoracic spine from an injury sustained in a 1986 motor vehicle accident. Private medical records show that when the Veteran was hospitalized in July 1999 it was noted that he did not have a history of cardiac problems. He reported first having dyspnea when he went to an emergency room about two years prior for an episode of coughing without chest discomfort. He was given a presumptive diagnosis of flu. He remained reasonably well until about two weeks earlier when he had onset of asthma complaints and three days prior, he noticed some precordial chest discomfort. It was noted that he was status post suprapubic prostatectomy for malignancy and a cervical spine fusion following an automobile accident. The impressions were congestive heart failure with dilated cardiomyopathy, history of prostate carcinoma, history of positive PPD and status post cervical spine fusion. It was noted in August 1999 that he was having occasional wheezing, which was usually triggered by hot weather or allergens. The impression was asthma. In October 1999, the Veteran complained of shortness of breath. The impressions were exacerbation of acute congestive heart failure and dyspnea, related to the above. In June 2003, the Veteran presented for an evaluation of dysuria of three months duration. It was noted he had problems with urinary incontinence and nocturia. A bladder neck obstruction was included under a problem list. The assessment was candida balanitis. VA outpatient treatment records show that in March 2010, the Veteran was seen with a two day history of shortness of breath and breathing concerns. It was noted he used outdated INH without relief. The assessment was that it initially seemed to be straight forward allergy-related asthma, but with rales noted, he was started on medication. In March 2014 it was noted that he had long-standing back issues. He had left low back pain that radiated to the buttock and legs. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires evidence of: (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the claimed disability and the disease or injury in service. See Shedden v, Principi, 381 F.3d 1153, 1166-1167 (Fed. Cir. 2004). Certain chronic diseases, including malignant tumors and cardiovascular disease may be service-connected on a presumptive basis if manifested to a compensable degree within a specified period of time postservice (one year for cancers and cardiovascular disease). 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. The evidence of record shows that the Veteran underwent spinal fusion surgery in 1986 after he was apparently involved in a motor vehicle accident. His 2004 VA claim for pension benefits and the VA examination for housebound status and aid and attendance in 2004 show that he related his back problems to the automobile accident and not to service. A March 2014 VA outpatient treatment record shows that the Veteran's leg pain is associated with his back problems. There is nothing in the record that shows or suggests that the Veteran's spinal cord and (any) leg pain disability may be related to an injury or disease in service. The record further shows that the Veteran denied any previous heart problems when he was hospitalized in July 1999. There is no evidence in the record to the contrary, and no evidence suggesting that a cardiac disability is, or may be, related to his service. Likewise, the Veteran's prostate cancer is shown by the record to have been diagnosed in 2004. Nothing in the record suggests that it may be related to his remote service. Complaints of dysuria were first noted in June 2003. A history of a bladder neck obstruction was also noted. Nothing in the record, shows identifies an etiological factor for disability manifested by such complaints in serve, or suggests that any such disability may be, related to the Veteran's service. In fact, there is nothing in the record to suggest that any disability at issue may be related to the Veteran's service. The Board notes that (particularly when there is no evidence of a related disease, injury, or event in service) a lengthy intervening period between service and the initial postservice manifestation of the disability for which service connection is sought is of itself a factor for consideration against the claim. Regarding the spinal disability (and bilateral leg pain disability), there is also clear evidence of an intervening cause, a postservice injury. The Board has considered these claims in light of VA's heightened duty to assist when a Veteran's STRs are unavailable for review, and he was afforded opportunity to submit evidence indicating that the claimed disabilities may be related service; however, he has not done so (and has not even presented a plausible theory entitlement identifying a disease, event , or injury in service to which the claimed disabilities could be related). The Veteran's own assertions that bilateral leg, bladder and heart disabilities, prostate cancer or residuals of a spinal cord injury are related to service are not competent evidence in the matter. The etiology of these disabilities is a medical question beyond the scope of the Veteran's lay knowledge. See Jandreau Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) The preponderance of the evidence establishes that the Veteran's current spine, bilateral leg pain, bladder and heart disabilities and prostate cancer and residuals of a spinal cord injury became manifest after, and are not shown to be related to, his service. Accordingly, the preponderance of the evidence is against the claims of service connection for such disorders. Finally, regarding the claim of service connection for a disability manifested by breathing problems, the Veteran has a history of a positive PPD test noted in the record. A positive PPD test is merely that, a test finding (see Dorland's 31st Ed. (2007) at 2006)); it is not a disability for which VA compensation benefits are payable. The term "disability" as used for VA purposes refers to impairment of earning capacity. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Veteran's diagnosed disability manifested by respiratory problems (asthma) was first diagnosed many years after service, with no identification of a nexus to service. [He was noted to have had a 40 pack year history of smoking ending in the late 1980's.] As he has not provided any evidence indicating that the asthma may be related to his service; and the record neither provides nor suggests any basis for so finding, the claim of service connection for a disability manifested by breathing problems must be denied ORDER The appeals seeking service connection for a disability manifested by bilateral leg pain, a bladder disability, a disability manifested by breathing problems, a heart disability, prostate cancer and residuals of a spinal cord injury are denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs