Citation Nr: 1802203 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-17 944 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for bilateral foot disability. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD R.M.K., Counsel INTRODUCTION The Veteran served on active duty from December 1963 to December 1966. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Los Angeles, California. The Veteran testified at an August 2017 videoconference hearing before the undersigned. A transcript of that hearing has been associated with the record. This appeal was processed using the Veteran's Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. These electronic records were reviewed to ensure thorough analysis of the evidence of record. FINDINGS OF FACT 1. A low back disability was not shown in service or for many years thereafter, and has not been shown to be related to service. 2. A bilateral foot disability was not shown in service or for many years thereafter, and has not been shown to be related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability have not been met or approximated. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. § 3.303 (2016). 2. The criteria for service connection for a bilateral foot disability have not been met or approximated. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. § 3.303 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA) in a December 2010 letter. 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), 4.2 (2016). Concerning the duty to assist, the record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including his service treatment records, post-service treatment records, and VA examination reports. The Veteran was provided a hearing before the undersigned in August 2017. As there is no allegation that the hearing provided to the Veteran was deficient in any way, further discussion of the adequacy of the hearing is not necessary. Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). Legal Criteria and Analysis Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2016). In order to establish service connection for the claimed disorder, there must be (1) competent evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include arthritis, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For arthritis, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307 (a) (3). Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303 (b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service-connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303 (b). In this case, the Veteran has been diagnosed with bilateral calcaneal spurs, bilateral plantar fasciitis, osteopenia, lumbar myofascial strain, lumbar degenerative joint disease, spondylosis, and facet joint arthritis. Therefore, Hickson element (1) is met for both claims on appeal. With respect to Hickson element (2), in-service disease or injury, the Veteran asserts that his low back disability and bilateral foot disability are related to his active duty service, to specifically include his duties as a cannoneer. Service personnel records show that the Veteran served as a cannoneer. Accordingly, Hickson element (2) is at least arguably met. The Veteran was afforded a VA-contracted examination in October 2012 in which the examiner opined that the claimed disabilities of both the low back and feet were less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that military medical records in December 1963 and November 1966 made no mention of lower back or foot issues, specifically in a self-report the word 'no' was marked in relation to foot trouble as well as recurrent back pain. The examiner noted that there was no documentation of bilateral foot or back complaints in the medical service records, and without actual documentation of such complaints, there could be no objective association made. In this case, as to the issue of the etiology of the Veteran's low back and bilateral foot disabilities, the Board finds that the VA-contracted examiner made it clear that it was his opinion that the Veteran's disabilities were not related to service. Accordingly, the Board concludes that the opinions carry significant weight. While the Board notes that service treatment records are to be taken into consideration and reviewed by examiners, the absence of documented treatment in service is not fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). However, no other competent opinion providing a positive nexus between service and the Veteran's low back disability and bilateral foot disability has been presented. The Board acknowledges that the Veteran is competent to testify as to his beliefs that his low back disability and bilateral foot disability are related to service. However, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical opinion regarding etiology. See 38 C.F.R. § 3.159 (a)(1) (2016) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the Veteran is competent to report what he has experienced, he is not competent to ascertain the etiology of any current disability, as the causative factors for such are not readily subject to lay observation. Therefore, the Veteran's claims that his low back disability and bilateral foot disability were etiologically related to service are outweighed by the competent and probative medical opinion. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). The Board finds the VA examiner's opinions are competent and probative as they were rendered after an evaluation of the Veteran, review of the Veteran's history, and consideration of medical principles by licensed medical professionals. Therefore a nexus between service and the Veteran's low back disability, bilateral foot disability, and service cannot be established, and the criteria of Hickson element (3) are not met. With regards to presumptive service connection, the weight of the evidence shows no chronic symptoms of arthritis during service, no continuous symptoms of either disability since service, and that arthritis did not manifest to a compensable degree within one year of service. To this point, service treatment records are absent for any showing of chronic symptoms, testing, or diagnosis for arthritis, and the first mention of arthritis in the record is not until years after service. As such, presumptive service connection is not warranted. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claims. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b) (West 2014). ORDER Entitlement to service connection for a low back disability is denied. Entitlement to service connection for a bilateral foot disability is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs