Citation Nr: 1620085 Decision Date: 05/17/16 Archive Date: 05/27/16 DOCKET NO. 10-25 531 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for an aortic aneurysm. 3. Entitlement to service connection for arteriosclerotic vascular disease. 4. Entitlement to service connection for eczema. REPRESENTATION Appellant represented by: John S. Berry, Attorney at Law ATTORNEY FOR THE BOARD Bonnie Yoon, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Army from September 1942 to October 1943. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2007 and March 2013 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. This matter was previously before the Board in November 2014, when it was remanded for further development. It has now been returned to the Board for further appellate review. The Board has reviewed the Veteran's Veterans Benefits Management System (VBMS) claims file as well as his electronic records maintained in the Virtual VA system to ensure consideration of the totality of the evidence. The issue of clear and unmistakable error (CUE) in a July 2009 rating decision which granted service connection for left knee infections with scars and assigned a 10 percent evaluation effective April 21, 2006, has been raised by the record in a March 2015 statement from the Veteran's attorney, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). 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). The issues of service connection for a low back disability and service connection for eczema are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. There is no evidence of an in-service incurrence or aggravation of a disease or injury to which the Veteran's aortic aneurysm may be related. 2. There is no evidence of an in-service incurrence or aggravation of a disease or injury to which the Veteran's arteriosclerotic vascular disease may be related. CONCLUSIONS OF LAW 1. The criteria for service connection for an aortic aneurysm are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). 2. The criteria for service connection for arteriosclerotic vascular disease are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist Veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). November 2006 and January 2013 letters, which were provided to the Veteran prior to the initial adjudication of his claims, satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). These letters also notified the Veteran of the evidence that is necessary, or would be of assistance, in substantiating their claims, as well as regulations pertinent to the establishment of an effective date and of the disability rating if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has also fulfilled its duty to assist the Veteran. The Veteran's VA treatment records have been obtained; he did not identify any private treatment records pertinent to the appeal. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159(c)(2). While there is indication in the claims file that the Veteran's service treatment and service personnel records are unavailable because they were stored in the area of the National Personnel Records Center (NPRC) storage facility that was destroyed by fire in 1973, the claims file reflects that service treatment records were received in 1947, prior to the 1973 fire, from the Records Administration Center, Adjutant General's Office. The Veteran was informed of the missing records in a March 2006 correspondence. However, in the case of missing records, if any, the legal standard for proving a claim for service connection is not lowered; rather, the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran is increased. Russo v. Brown, 9 Vet. App. 4 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005). A VA examination was not provided in conjunction with the Veteran's claims. See 38 C.F.R. § 3.159(c)(4). VA has a duty to provide a VA examination when the record lacks evidence to decide the Veteran's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. Id; see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, however, as explained below, there is no evidence of an in-service event, injury, or disease. Accordingly, the Board finds that the low threshold of McLendon is not met, and VA examinations are not necessary. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Service Connection Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303, 3.306. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C.A. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is 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. 38 C.F.R. § 3.159(a)(2). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran seeks service connection for an aortic aneurysm and for arteriosclerotic vascular disease. VA treatment records show that after a chest CT scan in March 2007, the Veteran was assessed as having aortic ectasia and calcification. VA treatment records also show that during testing in June 2009, the Veteran was diagnosed with arteriosclerotic vascular disease. A September 2012 CT scan indicates that the Veteran had a small aortic aneurysm and atherosclerotic vascular disease. Therefore, the Board finds that the record establishes a current disability for purposes of service connection. As indicated above, the RO found that the Veteran's service treatment records are fire-related. However, the service treatment records received in 1947 are silent for complaints, treatment, or diagnosis of an aortic aneurysm, arteriosclerotic vascular disease, or any other heart disability. The Veteran's September 1942 induction examination found his cardiovascular system to be normal, and a chest x-ray was negative. Most significantly, the Veteran's October 1943 retirement physical examination found his cardiovascular system to be normal. His chest x-ray was noted as being "essentially negative." The Board acknowledges that the Veteran is competent to give evidence about what he experiences; for example, he is competent to discuss pain. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). In the present case however, the Veteran has not reported any in-service symptoms, treatment, or diagnosis to which his current aortic aneurysm or arteriosclerotic vascular disease could be related, or otherwise provided a basis upon which he believed service connection was warranted. He simply submitted a claim of entitlement to service connection for an aortic aneurysm and for arteriosclerotic vascular disease based being diagnosed with these disorders. The Veteran has not offered any lay statements as to why he believes his aortic aneurysm and arteriosclerotic vascular disease are due to his time in service. As there is no evidence, lay or medical, establishing an in-service incurrence or aggravation of a disease or injury, there cannot be a discussion as to whether there exists a medical nexus between the Veteran's active service and his aortic aneurysm and his arteriosclerotic vascular disease. Likewise, there is no evidence that an aortic aneurysm and/or arteriosclerotic vascular disease were manifested in the first year following the Veteran's discharge from service in October 1943 (nor is it so alleged). There is no evidence of an aortic aneurysm or arteriosclerotic vascular disease until approximately 2007 and 2009, many years after military service. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000). Consequently, service connection on the basis that such became manifest in service, and persisted, or on a presumptive basis (as a chronic disease under 38 U.S.C.A. §§ 1112, 1137) is not warranted. For these reasons, the Board finds that a preponderance of the evidence is against the claim for service connection for an aortic aneurysm or arteriosclerotic vascular disease. Because the preponderance of the evidence is against the claim, the provisions of 38 U.S.C.A. § 5107(b) regarding reasonable doubt are not applicable. ORDER Service connection for an aortic aneurysm is denied. Service connection for arteriosclerotic vascular disease is denied. REMAND The November 2014 remand directed that new VA examinations be scheduled regarding the claims for service connection for a low back disability and service connection for eczema. A review of the claims file reveals that these examinations were not scheduled. The October 2015 supplemental statement of the case (SSOC) considered only the previous opinions from the September 2014 VA examinations, which the November 2014 remand found to be inadequate. Regarding eczema, the examiner discussed the Veteran's already service-connected epidermophytosis of the feet, but did not discuss whether any of other skin disorders noted in the record, including dermatitis and folliculitis, were connected to or the result of eczema in service. Regarding a low back disability, the examiner failed to address in the rationale the Veteran's statements regarding continuity of symptomology. As there has not been substantial compliance with the remand directives with respect to these issues, the appeal must be remanded again for the scheduling of VA examinations. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Schedule the Veteran for a VA skin examination. The claims folder, including a copy of this remand, must be reviewed in conjunction with the examination; if the examiner does not have access to records in VBMS, paper copies of such must be provided. The examiner should elicit from the Veteran a history of his symptoms relating to his skin condition. The examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent or greater degree of probability) that the Veteran's current skin disability (other than his already service-connected epidermophytosis of the feet), to include eczema, was related to his active duty service. The examiner should address whether any of the Veteran's skin disabilities since service, to include dermatitis and folliculitis, are related to or the result of eczema in service, and the relationship, if any, between the various diagnoses. The examiner must discuss the medical and lay evidence of record, including the Veteran's service treatment records. The examiner should also discuss any of the Veteran's statements, including onset in service and continuity of symptomatology since service. The examiner must provide a complete rationale for any opinions provided. 2. Schedule the Veteran for a VA spine examination. The claims folder, including a copy of this remand, must be reviewed in conjunction with the examination; if the examiner does not have access to records in VBMS, paper copies of such must be provided. The examiner should elicit from the Veteran a history of his symptoms relating to his low back disability. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater degree of probability) that any currently diagnosed back disability a) is related to the Veteran's active duty service; or was b) caused or aggravated (permanently increased in severity) by the Veteran's service-connected left knee condition. The examiner must discuss the medical and lay evidence of record. The examiner should discuss any of the Veteran's statements, including onset in service and continuity of symptomatology since service. The examiner must provide a complete rationale for any opinions provided. 3. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the issues on appeal. If any benefit sought is not granted, furnish the Veteran and his attorney with an SSOC and afford them an opportunity to respond, before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs