Citation Nr: 1800301 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 15-390 22A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for a bilateral pes planus disability. 2. Entitlement to service connection for a bilateral leg disability. 3. Entitlement to service connection for hypertension. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A-L Evans, Counsel INTRODUCTION The Veteran served on active duty from January 1954 to January 1957. This matter is before the Board of Veterans' Appeals (Board) on appeal of a June 2014 rating decision by a 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) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran's preexisting bilateral pes planus disability, shown at entry into service, was not aggravated by his active service. 2. The Veteran does not have a current bilateral leg disability which could be attributed to active service. 3. Hypertension did not have its onset in active service or for many years thereafter, and is not related to such service, to include exposure to contaminated water at Camp Lejeune. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral pes planus disability have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.102; 3.303, 3.304, 3.306 (2017). 2. The criteria for service connection for a bilateral leg disability have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). 3. The criteria for service connection for hypertension, to include as due to exposure to contaminated water, have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As a preliminary matter, the Board has reviewed the claims file and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification). The Veteran was provided a VA medical examination for his claimed pes planus disability in June 2014. The examination, along with the expert medical opinion, is sufficient evidence for deciding the claim. The report is adequate as it is based upon consideration of the Veteran's prior medical history and examinations, describes the disability in sufficient detail so that the Board's evaluation is a fully informed one, and contains a reasoned explanation. The Board notes that the Veteran was not afforded a VA examination for his claims for service connection for a bilateral leg disability and hypertension. As will be discussed below, there is currently no diagnosis of record for the claimed bilateral leg disability. Accordingly, a VA examination for the claimed bilateral leg disability is not required. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); Duenas v. Principi, 18 Vet. App. 512 (2004). Further, for the claimed hypertension, the record is absent any evidence of the claimed disorder in active service or for many years thereafter. Aside from the Veteran's own assertions that his disorder is related to exposure to contaminated water at Camp Lejeune, there is no evidence showing a nexus between his claimed disorder and any such exposure in service. Here, there is no reasonable possibility that a VA medical opinion would aid in substantiating the claim for service connection. Thus, VA's duty to assist has been met. II. Analysis 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. §§ 1110, 1131; 38 C.F.R. § 3.303. "To establish a right to compensation for a present disability, a veteran must show: "(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"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Pes Planus Disability A Veteran is presumed to be in sound condition when he entered into military service, except for conditions noted on the entrance examination. 38 U.S.C. § 1111 (2012). If a preexisting disorder is noted upon entry into service, service connection may still be granted based on aggravation of that disorder during service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b); see Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). The Board acknowledges the Veteran has a current pes planus disability; the Veteran's June 2014 VA examination report reflects a diagnosis of pes planus. The Board has reviewed the service treatment records and notes an indication of an abnormal clinical evaluation for the Veteran's feet on his January 1954 enlistment medical examination. It was noted that he had pes planus upon entry into service. In view of these findings, VA's presumption of soundness does not apply, and the question becomes whether the disability was aggravated beyond natural progression during service. Based on a review of the entire record, the Board finds that the preponderance of the evidence is against the claim for service connection for a bilateral pes planus disability. The evidence of record reflects that the Veteran suffered from a preexisting foot disability prior to service, as noted on his entrance examination. Regarding the question of aggravation, the Board finds that there is no medical evidence that the preexisting flat foot condition was permanently aggravated beyond its natural progression by the Veteran's military service. In order to support a finding of aggravation, the evidence must establish that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). The examiner from the Veteran's June 2014 VA examination concluded that this disability was not aggravated beyond its normal progression by his active service. The VA examiner stated that the Veteran's inherited pes planus with clinical findings was consistent with natural progression and consistent with aging. The Veteran's pes planus was not permanently aggravated over and above its natural progression by service. The opinion was provided based upon comprehensive review of the claims file and examination of the Veteran, and provided an adequate rationale that considered the Veteran's service treatment records and self-reported history. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). There is no competent and probative opinion to the contrary. Without sufficient evidence of an increase in severity, service connection for a bilateral foot disability based on service aggravation is not warranted. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306. As to the Veteran's own contentions, he is competent to observe lay symptoms to include complaints of achy soles and periodic numbness, but does not have the requisite medical knowledge, training, or credentials to be able to render a competent medical opinion regarding the progression of a medically complex disorder foot disability which has been determined to have preexisted service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). Accordingly, the Veteran's assertions as to a relationship between his bilateral foot disability and service are of little probative value. In sum, the preponderance of the evidence is against the claim of service connection for a bilateral pes planus disability, there is no doubt to be resolved, and service connection is not warranted. See 38 U.S.C. 5107(b); 38 C.F.R. § 3.102. Bilateral Leg Disability Service treatment records do not reflect any complaints or treatment for any leg problems, bilaterally. Post-service VA treatment records dated in December 2014 show that the Veteran complained of leg cramps. The Board finds that the preponderance of the evidence does not support granting the Veteran's claim of service connection for a bilateral leg disability. After a review of the evidence of record, the Veteran has not identified or produced any evidence, medical or otherwise, that would tend to show that he currently has a clinical diagnosis referable to his claimed bilateral leg condition that is related to service. The Board notes that pain alone, without a diagnosed or identifiable underlying malady or condition, does not constitute a disability subject to VA compensation. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). The Board acknowledges the Veteran's claim that he has leg pain due to carrying a back pack and other equipment while in service. VA treatment records do not reveal a diagnosis for a current leg condition. The Board is sympathetic to the Veteran's assertions, and recognizes that he is competent to report symptoms; however, the Board ultimately places more probative weight on the lack of clinical diagnosis and contemporaneous statements upon separation. While the presence of pain is capable of lay observation, determining the diagnosis and etiology of such requires medical training and credentials. See Jandreau v. Nicholson, supra. Accordingly, the Veteran's lay opinion as to the diagnosis or etiology of his bilateral leg disability is not competent medical evidence and is assigned no probative weight. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. The evidence does not show that the Veteran has a bilateral leg condition. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007). Hypertension Where a Veteran served for 90 days or more of active service, service incurrence shall be presumed for certain chronic diseases, including hypertension, if the disease manifested to a compensable degree within the year after service. While the disease need not be diagnosed within the presumption period, it must be shown by acceptable lay or medical evidence that there were characteristic manifestations of the disease to the required degree during that time. The presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). The Veteran asserts that he developed hypertension as a result of his exposure to contaminated water at Camp Lejeune. His service treatment records show that he served at Camp Lejeune. However, hypertension is not recognized by VA as diseases associated with exposure to contaminants in the water supply at Camp Lejeune. 38 C.F.R. §§ 3.309(e), (f) (2017). Thus, service connection on a presumptive basis is not warranted. Notwithstanding the presumptive provisions, service connection may be established by showing that a disorder resulting in disability is, in fact, causally linked to exposure to contaminants in the water supply at Camp Lejeune. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). However, there is no evidence of hypertension in active service. The Veteran did not complain of hypertension problems during his separation examination, and examination at that time did not reveal an abnormal blood pressure reading. While the Veteran states that he was diagnosed shortly after separation from service, the earliest medical evidence of record of hypertension appears in 1999, over 40 years after discharge. In that regard, while not dispositive, the passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor that weighs against a claim for service connection. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). There is also no competent medical evidence that links the disability to service. Thus, the Board finds that hypertension did not have its onset in active service or for many years thereafter, and is not related to such service. The Board has considered the Veteran's contentions, but hypertension is not a disorder that is capable of lay diagnosis. 38 C.F.R. § 4.104, Diagnostic Code 7101, in fact, sets forth specific procedures for diagnosing hypertension that involves multiple blood pressure readings. Again, the Veteran is not shown to possess the medical training or credentials needed to perform the requisite testing to ensure that a diagnosis of hypertension is valid. His lay opinion on this matter therefore lacks probative value. In conclusion, service connection for hypertension is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a bilateral pes planus disability is denied. Entitlement to service connection for a bilateral leg disability is denied. Entitlement to service connection for hypertension is denied. ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs