Citation Nr: 1805453 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 10-09 235 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for a bilateral foot disorder. 2. Entitlement to service connection for a bilateral leg disorder. 3. Entitlement to service connection for a stomach disorder. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Matthew Miller, Associate Counsel INTRODUCTION The Veteran had active duty service from March 1974 to April 1974. This matter initially came before the Board of Veterans' Appeals (Board) on an appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho, St. Louis, Missouri, and San Diego, California. Jurisdiction was later transferred to the RO in Los Angeles, California. In March 2017, the Veteran appeared at a hearing held at the RO before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In May 2017, the Board reopened the Veteran's claims of entitlement to service connection for a bilateral leg disorder and a stomach disorder, and remanded those issues, along with the issue of entitlement to service connection for a bilateral foot disorder, for additional evidentiary development. The appeal has since been returned to the Board for further consideration. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Any future consideration of this appellant's case should take into account the existence of these records. FINDINGS OF FACT 1. The Veteran failed to report to his most recent VA examination, scheduled for August 2017. 2. The Veteran did not offer reasons for not reporting to the scheduled examination and he has not provided reasons indicating good cause for the failure to report and he has not indicated a willingness to report for another examination. 3. There is nothing in the record to suggest that any correspondence sent to the Veteran, including the notification letter and subsequent November 2017 supplemental statement of the case, as having been returned as undeliverable. 4. The preponderance of the available evidence does not demonstrate that the Veteran has a bilateral foot disorder that was caused by or is otherwise related to service. 5. The preponderance of the available evidence is against a finding that the Veteran has a continuing chronic bilateral leg disorder. 6. The preponderance of the available evidence is against a finding that the Veteran has a continuing chronic stomach disorder. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a bilateral foot disorder have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). 2. The criteria for entitlement to service connection for a bilateral leg disorder have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 3. The criteria for entitlement to service connection for a stomach disorder have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C. §§ 5100, 5102, 5103A, 5107, 5126 (2012) sets forth VA's duties to notify and assist a claimant with the evidentiary development of a claim for compensation or other benefits. See also 38 C.F.R. §§ 3.102, 3.159 and 3.326 (2017). VCAA notice must, upon receipt of a complete or substantially complete application for benefits, inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will obtain on his behalf. The Veteran has been provided satisfactory and timely VCAA notice in advance of the rating decision on appeal. VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate his claim, and, as warranted by law, affording VA examinations. Currently, there is no evidence that additional records have yet to be requested, or that additional examinations are in order. Moreover, there is currently no error or issue which precludes the Board from addressing the merits of the Veteran's appeal. The Veteran's statements in support of the claim are of record, including testimony provided at the hearing before the undersigned Veterans Law Judge. The Board hearing focused on the elements necessary to substantiate his claim and the Veteran has demonstrated that he had actual knowledge of the elements necessary to substantiate the claim for benefits. Thus, the material issues on appeal were fully developed in accordance with 38 C.F.R. § 3.103(c) (2017). Pursuant to the Board's May 2017 remand, the Agency of Original Jurisdiction (AOJ) retrieved any pertinent records and scheduled the Veteran for a VA examination; however, he failed to appear. The Board notes that no correspondence concerning this examination was returned as undeliverable, and the Veteran has not denied receiving adequate notice of the scheduled VA examination. When a Veteran fails to report for an examination scheduled in conjunction with an original compensation claim, such as in this case, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655 (2017). The AOJ then issued a supplemental statement of the case in November 2017, which informed the Veteran of his failure to attend the examination. Based on the foregoing actions, the Board finds that there has been substantial compliance with the Board's prior remand. Stegall v. West, 11 Vet. App. 268 (1998). Finally, in reaching this determination, the Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the Veteran's claim, and what the evidence in the claims file shows, or fails to show, with respect to this claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Legal Principles Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Bilateral foot disorder The Veteran seeks entitlement to service connection for a claimed bilateral foot disorder. Initially, the Board notes that the Veteran's service treatment records indicated that he was treated for various foot conditions, including a right foot or ankle sprain and bruised Achilles tendons. The Veteran has also received some VA treatment for his feet, including a January 2008 x-ray impression of bilateral hammertoes deformity, with no acute process. Follow-up treatment indicates a diagnosis of bilateral pes planus. More recent VA records document ongoing treatment for complaints of foot pain, ankle pain, and ingrown toenails. Importantly, the Veteran was scheduled for a VA examination for his claimed bilateral foot disorder. Apparently, this examination was canceled because the Veteran's claims file was unavailable to the examiner. The Veteran's representative submitted a request to reschedule the examination, which was regrettably not performed at that time. At the Veteran's March 2017 hearing, the Veteran's representative again requested a VA examination for the Veteran's claimed bilateral foot disorder. Pursuant to this request and the duty to assist, the Board remanded the Veteran's appeal for evidentiary development, to include a new VA examination. A review of the record reveals that a VA examination for the Veteran's claimed bilateral foot disorder was scheduled for August 2017, but he failed to attend and has not provided good cause as to his failure to report. When entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for the examination or reexamination, an original compensation claim will be adjudicated on the evidence of record as it stands. 38 C.F.R. § 3.655(a) and (b). However, when the examination was scheduled in conjunction with a reopened claim for a benefit which was previously disallowed, the claim will be denied. 38 C.F.R. § 3.655(b). Here, the Board is left to determine the claim based on the evidence of record. The Board is cognizant that the Veteran experienced some foot injuries in service, and was diagnosed with pes planus as recently as January 2008. However, no nexus to service has been established, despite repeated attempts by VA to afford the Veteran a VA examination, and his claim must be denied. As noted, the Veteran was scheduled for a VA examination to evaluate the nature and etiology of his claimed bilateral foot disorder, but he failed to report for the examination. By failing to report for the VA examination without good cause or adequate reason, the Veteran denied VA the opportunity to obtain information that could have substantiated his claims. 38 C.F.R. § 3.655. In considering the Veteran's own statements, while he is competent to testify about his symptomatology, he has not provided any probative evidence of a nexus linking his claimed bilateral foot disorder to any incident in service. In making this determination, the Board highlights that the duty to assist is not a one-way street; a claimant cannot stand idle when the duty to assist is invoked by failing to provide important information or otherwise failing to cooperate. Wood v. Derwinski, 1 Vet. App. 190 (1991) (aff'd on reconsideration, 1 Vet. App. 460 (1991)). Given the above, the claim must be denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. 38 U.S.C. § 5107. Bilateral leg disorder The Veteran seeks entitlement to service connection for a bilateral leg disorder. Initially, the Board notes that the Veteran's service records are silent as to any treatment for a leg disorder. The Board observes that the Veteran received some post-service treatment related to gunshot wounds to both thighs, which were incurred around 1983. It also appears that a medical procedure was performed to insert a rod into his left leg soon after this incident. Ongoing medical records document additional treatment for leg pain, but a specific disorder has not been identified. At the Veteran's March 2017 hearing, he testified that he had several procedures performed on his legs or knees to treat ongoing swelling and pain. He also indicated that he was receiving Social Security Administration (SSA) benefits for a bilateral leg disorder. Pursuant to the Board's May 2017 remand, outstanding SSA records were retrieved. These records indicate that the Veteran filed a claim for, among other things, back pain which radiated into his legs, but his claim was denied. As noted above, service connection requires a showing of a current disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A current disability is shown if the claimed condition is demonstrated at the time of the claim or while the claim is pending. McClain v. Nicholson, 21 Vet. App. 319 (2007). The Veteran is competent to report his symptoms of bilateral leg pain. However, an underlying disability related to a leg disorder has never been identified during the current appeal period. There is no other competent medical evidence of record, VA or private, of a chronic bilateral leg disorder during the applicable appeal period. In essence, the evidence of a current diagnosis of a chronic bilateral leg disorder is limited to statements from the Veteran and his general complaints. The Board finds that diagnosing a disability related to the legs requires medical expertise and knowledge because such a diagnosis involves clinical testing and evidence which is beyond the scope of observable symptoms. Thus, while the Veteran is competent to report his experience and symptoms in service and thereafter, his reports are not competent evidence of a diagnosis of a chronic bilateral leg disorder. 38 C.F.R. § 3.159(a)(1), (2). Moreover, it appears that any complaints associated with his bilateral leg pain pertain to gunshot wounds he sustained in 1983, nearly 8 years after his discharge from service. In light of the absence of any competent evidence of a chronic bilateral leg disorder, the claim must be denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. 38 U.S.C. § 5107. Stomach disorder The Veteran seeks entitlement to service connection for a stomach disorder. Initially, the Board notes that the Veteran's service records indicate that he was treated for constipation. The Board observes that the Veteran has received some post-service treatment for complaints of gastritis. At the Veteran's March 2017 hearing, he testified that he was receiving ongoing treatment for his claimed stomach disorder. Pursuant to the Board's May 2017 remand, outstanding treatment records were obtained, which fail to identify a specific stomach disorder. Again, the Board emphasizes that service connection requires a showing of a current disability. Here, there is no evidence to suggest that the Veteran has been diagnosed with a chronic stomach disorder. While he has received some treatment for stomach pain and digestive problems, these conditions are shown to have resolved. The Veteran is competent to report his symptoms of indigestion and stomach cramps. However, like in the preceding section, the evidence of a current diagnosis of a chronic stomach disorder is simply limited to the Veteran's own statements and complaints. The Board finds that diagnosing a disability related to his stomach disorder requires medical expertise and knowledge because such a diagnosis involves clinical testing and evidence which is beyond the scope of observable symptoms. Thus, while the Veteran is competent to report his stomach pain since service, these reports are not competent evidence of a diagnosis of a chronic stomach disorder. 38 C.F.R. § 3.159(a)(1), (2). In light of the absence of any competent evidence of a chronic stomach disorder, the claim must be denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. 38 U.S.C. § 5107. ORDER Entitlement to service connection for a bilateral foot disorder is denied. Entitlement to service connection for a bilateral leg disorder is denied. Entitlement to service connection for a stomach disorder is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs