Citation Nr: 18141204 Decision Date: 10/10/18 Archive Date: 10/09/18 DOCKET NO. 16-15 371A DATE: October 10, 2018 ORDER Entitlement to service connection for an upper respiratory disability is denied. REMANDED Entitlement to service connection for a left foot disability is remanded. Entitlement to service connection for a right foot disability is remanded. Entitlement to service connection for diabetes mellitus type 2 (DM II) is remanded. Entitlement to service connection for erectile dysfunction (ED) is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has an upper respiratory disability. CONCLUSION OF LAW The criteria for entitlement to service connection for an upper respiratory disability have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 2002 to September 2002 and from February 2003 to November 2008 and completed several periods of reserve service. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. At the outset the Board notes the Veteran also appealed the claims of entitlement to service connection for bilateral hearing loss, tinnitus and insomnia in an April 2016 VA form 9. However, the record reflects the Veteran was granted service connection for these claims in September 2016 and February 2017 rating decisions. Thus, as this represents the full grant of the benefits sought the claims are no longer before the Board. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017). In a letter dated May 2010 it discussed the evidence necessary to support the Veteran’s claim. The Veteran was advised of the allocation of duties between himself and VA regarding the development of a claim for benefits. He was also advised of the manner in which VA determines disability ratings and effective dates. The Board finds that the content of the notices fully complied with the requirements of 38 U.S.C. § 5103 (a) and 38 C.F.R. § 3.159 (b) regarding VA’s duty to notify. The Veteran was provided with every opportunity to submit evidence and argument in support of his claims and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims. With respect to VA’s duty to assist, available service and VA treatment records have been associated with the claims file. VA examination was not provided with respect to the Veteran’s claim of service connection for an upper respiratory disability. A medical examination is necessary when there is (1) “competent evidence of a current disability or persistent or recurrent symptoms of a disability,” (2) evidence establishing an in-service “event, injury, or disease,” and (3) an “indication” that the disability or symptoms may be associated with service, but (4) insufficient medical evidence of record for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C. § 5103A (d)(2). For the reasons discussed below, the Board finds that an examination is not warranted. Here, the Board finds the Veteran has not satisfied the first McLendon element, as he does not have a current diagnosis of an upper respiratory disability. The Board also notes the remainder of the elements for a VA examination are not satisfied. In reference to the second McLendon element, the Board finds the evidence in this case does not establish an in-service “event, injury, or disease.” Here, the Veteran contends he is entitled to service connection for an upper respiratory disability. However, as discussed in more detail below, the Board finds the Veteran does not have a current diagnosis of an upper respiratory disability. Additionally, the Veteran’s service treatment records (STRs) are silent for any complaints, treatment, or diagnosis of an upper respiratory disability. Additionally, the Veteran has not asserted that this disability existed during or immediately after military service. Thus, the evidence of record does not establish an in-service “event, injury, or disease.” The Board also finds the Veteran did not satisfy the third McLendon element, aside from the Veteran’s lay assertions, the evidence does not in any way suggest the Veteran’s claimed post-service disability is related to his service. Consequently, the Board finds that given the absence of in-service evidence of manifestations of a current upper respiratory disability on appeal or such showing within one year of discharge, the absence of reports of symptomatology for many years after separation, and no competent evidence of a possible nexus between service, the “low” threshold for purposes of triggering VA’s duty to provide an examination is not met. McLendon, 20 Vet. App. at 81. Based on the foregoing, the Board finds the record as it stands includes adequate competent evidence to allow it to adjudicate the appeal, and no further action is necessary. See 38 C.F.R. § 3.159 (c). Therefore, the Board finds that all necessary assistance has been provided to the Veteran. Entitlement to service connection for an upper respiratory disability. The Board finds the evidence weighs against a finding of a current disability for the claimed upper respiratory disability. Where the evidence does not support a finding of current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In arriving at this conclusion, the Board has also considered the lay statements submitted by the Veteran, asserting that he suffers from chronic coughing due to his active duty service, specifically due to being exposed to burn pits and other environmental hazards during active service. The Board notes that although lay persons are competent to provide opinions on some medical issues, as to the specific issue in this case, a relationship between an upper respiratory disability and an in-service injury or event is outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Therefore, the probative value of these lay statements is outweighed by the evidence of record. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for an upper respiratory disability and the claim must be denied. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for left and right foot disorders is remanded. The Veteran was afforded a VA examination with respect to these claims in April 2017. The examiner opined that the Veteran’s left fifth phalangeal fracture of the toe was less likely than not incurred in or caused by or permanently aggravated beyond its natural progression by his combat service which occurred from November 1, 2005 to February 28, 2006 because there was no nexus for cause or aggravation between the Veteran’s combat service and his left fifth phalangeal fracture of the toe. The Board finds this opinion is inadequate for adjudication purposes. The examiner did not provide an opinion as to the Veteran’s right foot disorder and did not adequately discuss all the diagnoses associated with the Veteran’s left foot disorder. The Board notes the Veteran has been diagnosed with bilateral mild hallux valgus. See Capri Records received May 13, 2013. Additionally, there are several additional service dates that the Board is not clear as to whether there are active periods of service or periods of ACDUTRA or INACDUTRA. Thus, remand is necessary to obtain clarification as to all the Veteran’s periods of service and an adequate medical opinion on the etiology of the Veteran left and right foot conditions. 2. Entitlement to service connection for diabetes mellitus type 2 (DM II) is remanded. As previously discussed, the Board needs clarification as to all the Veteran’s periods of service. Additionally, the Veteran’s November 2015 VA examination is inadequate for adjudication purposes as the examiner opined that the Veteran’s DM II which clearly and unmistakably existed prior to service, was clearly and unmistakable not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner failed to provide any rationale for his conlcusion. Thus, an additional opinion is needed to determine the nature and etiology of the Veteran’s DM II. 3. Entitlement to service connection for erectile dysfunction (ED) is remanded. Finally, because a decision on the remanded issue of DM II could significantly impact a decision on the issue of ED, the issues are inextricably intertwined. A remand of the claim for ED is required. The matters are REMANDED for the following action: 1. Contact the appropriate entity(ies) to request all service personnel records pertaining to the Veteran's National Guard service. Specifically, request the specific and definitive certification of all periods of active duty, ACDUTRA and INACDUTRA. Document for the record a chronological listing of these periods of service. 2. Following completion of the above development, schedule the Veteran for appropriate VA examinations to determine the nature and etiology of his DM II and any left and right foot disabilities. The claims file must be made available to the examiner. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. The Veteran's periods of service should be indicated in the examination request. Following review of the record and examination of the Veteran, the examiner should provide opinions on the following: Whether any currently present DM II clearly and unmistakably preexisted any period of active service. If the examiner concludes that this disability clearly and unmistakably preexisted any period of service, the examiner should provide an opinion regarding whether there is clear and unmistakable evidence that the pre-existing disability DID NOT increase in severity beyond its natural progression during active duty (i.e., the disability was not aggravated by a period of service). With respect to any left and right foot disabilities that the examiner concludes did not clearly and unmistakably preexist service, he should provide an opinion regarding whether it is at least as likely as not (a 50 percent or greater probability) that such disabilities are related to any disease or injury during service. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. If the examiner is unable to offer any of the requested opinions, a rationale for the conclusion that an opinion cannot be provided without resort to speculation should be provided, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. The complete rationale for any conclusion reached should be provided. 3. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If any benefit sought remains denied a supplemental statement of the case (SSOC) must be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, then return the appeal to the Board for appellate review, if otherwise in order. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. McDuffie, Associate Counsel