Citation Nr: 1800688	
Decision Date: 01/05/18    Archive Date: 01/19/18

DOCKET NO.  17-24 365	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1.  Entitlement to service connection for left foot arthritis, to include as secondary to service-connected right foot drop.

2.  Entitlement to service connection for right foot arthritis, to include as secondary to service-connected right foot drop.

3.  Entitlement to service connection for atrial fibrillation, to include as secondary to service-connected posttraumatic stress disorder (PTSD) and herbicide agent exposure.


REPRESENTATION

Veteran represented by:  Disabled American Veterans


ATTORNEY FOR THE BOARD

M. Gonzalez, Associate Counsel

INTRODUCTION

The Veteran served on active duty from September 1964 to July 1968, to include service in the Republic of Vietnam.
 
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision from the Department of Veterans (VA) Regional Office (RO) in Roanoke, Virginia.  
 
In February 2016 the Board remanded the issues on appeal in order for the RO to issue a statement of the case.  The issues have now been returned to the Board for appellate review.

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 does not have a current medical finding of left foot or right foot arthritis.

2.  The Veteran's atrial fibrillation is not related to active duty service.


CONCLUSIONS OF LAW

1.  The criteria for service connection for left foot arthritis or right foot arthritis, to include as secondary to service-connected right foot drop have not been met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2017).

2.   The criteria for service connection for atrial fibrillation, to include as secondary to service-connected PTSD and herbicide agent exposure have not been met.  38 U.S.C. §§ 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309, 3.310 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran asserts that he has left and right foot arthritis secondary to his service-connected right foot drop.

The evidence of record does not show a current diagnosis for a left foot or right foot arthritis.  Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.  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); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992).  

A veteran is competent to describe symptoms that he is able to perceive through the use of his senses and to give evidence about what he has experienced.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994).   However, the Veteran is not shown to possess any medical expertise; thus, his opinion as to the existence of left or right foot arthritis or as to the etiology of such disabilities is not competent medical evidence.  As there is no evidence that the Veteran has a current left or right foot disability, his service connection claims must be denied.  

Since the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply.  38 U.S.C. § 5107.  

Atrial Fibrillation

In his May 2017 form 9 the Veteran asserted that his atrial fibrillation is caused by ischemic heart disease, which is due to his exposure to herbicide agents in Vietnam.  

Further, in the November 2017 informal hearing presentation the Veteran's representative asserted that the Veteran's atrial fibrillation is due to his service-connected PTSD.

Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  A disability that is proximately due to, the result of, or permanently aggravated by a service-connected disease or injury shall be service connected.  38 C.F.R. § 3.310.

As noted, service treatment records are absent complaints or treatment for heart.  At separation, examination of the heart was normal and the Veteran denied pain or pressure in the chest, and palpitation or pounding heart.

As noted, atrial fibrillation is not one of the specified diseases in 38 C.F.R. § 3.309 to warrant service connection on a presumptive basis.  There is no medical evidence to support that the Veteran has a diagnosis of ischemic heart disease or that his atrial fibrillation is related to PTSD.  Treatment records simply do not indicate any form of connection.

As noted above, the Veteran is competent to attest to things he experiences through his senses, such as pain.   See Jandreau, 492 F.3d 1372.  However, the Veteran is not shown to possess any medical expertise; thus, his opinion as to the relationship between atrial fibrillation and PTSD or as to the etiology of atrial fibrillation is not competent medical evidence.  Moreover, whether any symptoms the Veteran experienced in service or following service are in any way related to his heart disability requires medical expertise to determine.  See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with.").  

In summary, the preponderance of the evidence is against a finding that the Veteran has atrial fibrillation that was caused or aggravated by service or a service-connected disability.  Thus, the claim for service connection is denied.  

Duties to Notify and Assist

The Veteran has not been afforded a VA examination in connection with his service connection claims.  Generally, a VA examination is necessary prior to final adjudication of a claim when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the veteran qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for VA to make a decision on the claim.  38 U.S.C. § 5103A(d)(2) (2012); 38 C.F.R. § 3.159(c)(4)(i) (2017); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).  

Service treatment records are absent treatment for the left or right foot, or heart.  During a May 1968 separation examination the examiner reported the Veteran's lower extremities, feet, and heart were normal; the Veteran denied pain or pressure in the chest, palpitation or pounding heart, arthritis or rheumatism, and foot trouble.

The Veteran stated that he receives treatment for his claimed disabilities at the Hampton VA Medical Center (VAMC); he also submitted private treatment records.  A review of those records reveals no complaints of pain to the feet.  The evidence does not reveal the Veteran has symptoms for, or been diagnosed with, a left or right arthritis disability during the period on appeal.  He merely stated service connection for the left and right foot should be granted based on the service-connected right foot drop.  His informal claim for service connection and statement that his foot arthritis is related to his right foot drop does not amount to persistent or recurrent symptoms of a disability.

In a March 2015 disability benefits questionnaire (DBQ) the treatment provider diagnosed atrial fibrillation and sick sinus syndrome.  Service connection based on exposure to herbicide agents will be presumed for certain specified diseases that become manifest to a compensable degree within a specified period of time in the case of certain diseases.  The diseases associated with herbicide exposure for purposes of the presumption include ischemic heart disease, but exclude atrial fibrillation and sick sinus syndrome.  38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309. The Veteran had verified in-country service in Vietnam, and is therefore presumed to have sustained herbicide exposure.  A review of the record does not reveal that the Veteran has been diagnosed with ischemic heart disease.  There is no evidence of record to indicate the Veteran's heart disabilities may be associated with his service or with his service-connected PTSD.  He merely stated service connection for atrial fibrillation should be granted as due to service-connected PTSD and ischemic heart disease due to herbicide agent exposure, however, the Veteran is not diagnosed with ischemic heart disease.  

As there is no competent evidence of a current left foot or right foot disability, persistent or recurrent symptoms of such disability, or an indication that a current left or right foot disability or heart disability may be related to an in-service injury or service-connected disability, the Board finds that a VA examination is not necessary to decide the claim.  38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); see also McLendon, 20 Vet. App. at 79. 

Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  

ORDER

Service connection for left and right foot arthritis, to include as secondary to service-connected right foot drop is denied.

Service connection for atrial fibrillation, to include as secondary to service-connected PTSD and herbicide agent exposure is denied.


JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs