Citation Nr: 1752772	
Decision Date: 11/16/17    Archive Date: 11/22/17

DOCKET NO.  12-10 530	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1. Entitlement to service connection for bilateral flat fleet (pes planus).

2. Entitlement to service connection for cancer of the gums (also claimed as dental condition and loss of teeth). 


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Victoria A. Narducci, Associate Counsel




INTRODUCTION

The Veteran served on active duty in the Marine Corps from October 1955 to October 1958.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.  

The Veteran's hearing before the Board was scheduled for December 2016. The Veteran failed to appear for the hearing and he did not provide an explanation as to why he did not appear. Since that date, he has not requested another hearing. The Board subsequently determined that the Veteran withdrew his hearing request.

This case was previously before the Board in June 2017.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDING OF FACT

The Veteran was scheduled for two VA examinations in relation to his claims for service connection in July 2017, but he failed to report for those examinations and has not shown good cause for doing so and actual physical examination of the Veteran is necessary to substantiate his claims.  


CONCLUSIONS OF LAW

1. The claim for service connection for flat feet (pes planus) is denied on the basis of failure to report for a VA medical examination. 38 U.S.C. § 501(2014); 38 C.F.R. § 3.655(b) (2017).

2. The claim for service connection for cancer of the gums (also claimed as dental condition and loss of teeth) is denied on the basis of failure to report for a VA medical examination. 38 U.S.C. § 501(2014); 38 C.F.R. § 3.655(b) (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duty to Assist and Notify

The VA has procedural requirements pursuant to The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096(Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (2014)) that include enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2017). A review of the record does not disclose that the Veteran and his representative have specifically raised any procedural issues regarding the VA's duty to notify to the AOJ or the Board, even when construing the Veteran's contentions liberally. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (Board required to address only those procedural arguments specifically raised by the Veteran, though at the same time giving the Veteran's pleadings a liberal construction). 

The Veteran and his representative did, however, allege that the VA failed its duty to assist the Veteran in developing his claim. See May 2017 Appellate Brief and September 2017 Appellate Brief. Specifically, the Veteran's appellate brief argues that the VA failed to provide for an adequate medical opinion that could be "justifiably relied upon." However, the VA arranged two separate examinations for the Veteran to attend to assist in developing his claims; the Veteran failed to appear for these examinations, and the Board finds that actual physical examination is necessary to substantiate the claims. In this respect, the Veteran entered active service with a classification of 2nd degree pes planus and left service with a classification of 3rd degree pes planus.  At both times, the bilateral foot disability was noted to be asymptomatic or not disabling.  Without current examination, the Board cannot determine whether the classification of 3rd degree pes planus was correct or whether it represented a different subjective interpretation of the same foot condition upon entry into service. Additionally, without examination of the current foot disorder, the Board cannot determine whether any potential aggravation was beyond the normal progress of the disorder. The available medical records are insufficient to allow an examiner to answer these questions based on record review only. As for the dental disorder, the lay and medical evidence of record is insufficient to determine whether any current disorder may be service-connected under the applicable laws.

Furthermore, the VA obtained the Veteran's medical records; the Veteran's service treatment records, VA treatment records, and identified and available private treatment records have all been associated with the record. 38 U.S.C. § 5103A; 338 C.F.R. § 3.159. The Board notes that the duty to assist a claimant is not a one-way street, and records may only be obtained from places that the Veteran specifically identifies. Subsequently, the Board finds that the VA complied with VCAA provisions.

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006).

II. Service Connection 

Under 38 C.F.R. §3.655, when a claimant fails to report for an examination, the claim shall be rated based on the evidence of record. 38 C.F.R. §3.655.

Service connection may be granted for a current disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The requirement that a current disability exist is satisfied if the claimant had a disability at the time the claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service connection cannot be granted if there is no present disability. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. In the absence of proof of a present disability, there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 

III. Analysis

The Veteran contends that he has bilateral flat feet (pes planus), and that the condition is etiologically related to his active service. He further alleges that the condition began in 1958. See October 2010 VA Form 21-526, Veteran's Application for Compensation and/or Pension. 

Both the Veteran's entrance and discharge examinations noted that he had pes planus during service. His entrance examination noted his pes planus as "2 degree bilateral, asymptomatic," and his discharge examination noted "pes planus 3 degrees NCD [not considered disqualifying/disabling]." See STR-Medical, received November 2010. As this condition existed prior to service, the presumption of soundness does not attach. Service connection for bilateral pes planus, therefore, may be considered only on the basis of aggravation during active service. 38 U.S.C. § 1111; 38 C.F.R. §§ 3.304(b), 3.306. This requires the Board to make a specific finding about whether the increase in disability is due to the natural progression of the disease or as a result of active service. 38 C.F.R. § 3.306. 

The Veteran's STRs reflect a potential worsening of the condition, based on the classification of his pes planus from 2nd degree upon service entry to 3rd degree upon separation; however, he did not receive any treatment for this condition or for his feet in general during service and the bilateral foot disability was also classified as not considered disabling upon separation. Furthermore, there is no documentation in the record to indicate that the Veteran received treatment for his pes planus post-service. The United States Court of Veterans Appeals has held that the Board is required to consider only independent medical evidence to support findings, rather than provide their own medical judgment. Colvin v. Derwinski, 1 Vet. App. 171 (1991). Because of Colvin, the Board is prevented from determining whether the Veteran's pes planus worsened from his active service or from the natural progression of the disease. Without actual examination of the current foot disorder, the Board is unable to grant service connection for bilateral flat fleet (pes planus). 38 C.F.R. §3.655.

Similarly, the Veteran contends that he has a dental condition, which he described in his initial claim as "dental condition, loss of teeth, cancer of the gums," that is etiologically related to his active service. He did not, however, provide a date for when the disability began for his initial claim. See October 2010 VA Form 21-526, Veteran's Application for Compensation and/or Pension.

The Veteran's medical records are silent as to a diagnosis for his tooth problems, despite his contention that he has cancer of the gums. The Veteran's STRs indicate he was missing four teeth upon joining the Marine Corps, and his in-service records indicate he was treated for periodontis and an abscess on tooth number 32. See STR-Medical, received November 2010. During the appeal period, the Veteran's medical treatment records indicated that he had his remaining teeth removed. At this time, however, there is insufficient evidence to support the finding that the Veteran has a diagnosis for his dental disorder. Furthermore, the Board is unable to determine whether the Veteran's current dental problems have a nexus to an in-service event. 

In its initial remand, the Board ordered the Veteran be scheduled for VA examinations for his feet and teeth. The examination for his pes planus was scheduled for July 2017 and the examination for his teeth was scheduled for the following day. However, the Veteran did not attend either examination and both were subsequently marked as "no show" and cancelled. See August 2017 Request for Physical Examination. Without the information these examinations would have provided, the Board is unable to grant service connection for either claim. Relying upon 38 C.F.R. §3.655, the Board must rate the claim based on the evidence provided in the record. Here, the evidence does not permit the Board to decide the claim in the Veteran's favor. 

The preponderance of the evidence is against the claim. In reaching this conclusion, the Board 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.  38 U.S.C. § 5107(b), 38 C.F.R. § 3.102, Gilbert v. Derwinski, 1 Vet. App. 61 (1991). The Board notes that the duty to assist a claimant is not a one-way street, and in the instant case, the Veteran has failed to cooperate to the full extent in the development of his claim. Wood v. Derwinski, 1 Vet. App. 406 (1991). In this case, the criteria for a denial based on application of 38 C.F.R. § 3.655 have been met and the claims must be denied pursuant to the operative regulation. 38 C.F.R. §3.655(b). Accordingly, the claims are denied.


	

ORDER

Entitlement to service connection for bilateral flat fleet (pes planus) is denied.

Entitlement to service connection for cancer of the gums (also claimed as dental condition and loss of teeth) is denied. 





____________________________________________
T. MAINELLI
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs