Citation Nr: 18143206 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 16-29 332 DATE: October 18, 2018 ORDER Entitlement to service connection for hammertoes of both feet is denied. Entitlement to service connection for residuals of a collapsed right lung is denied. FINDINGS OF FACT 1. Hammertoes of both feet are first shown decades after military service and are not shown to be related to either period of the Veteran’s military service. 2. The Veteran underwent a thoracostomy during his second period of active service for a spontaneous pneumothorax, i.e., collapse, of the right lung which healed without residual disability and current chronic obstructive pulmonary disease is unrelated to his military service, including any event or injury. CONCLUSIONS OF LAW 1. The criteria for service connection for hammertoes of both feet are not met. 38 U.S.C. §§ 1110, 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for service connection for residuals of a collapsed right lung are not met. 38 U.S.C. §§ 1110, 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1975 to June 1978, and from August 1989 to December 1991. This matter comes before the Board of Veterans’ Appeals (Board) from a June 2013 decision of a Department of Veterans Affairs (VA) Regional Office (RO) which denied service connection for hammertoes and residuals of a collapsed right lung, and entitlement to nonservice-connected pension benefits. The Veteran was notified of this by RO letter of June 7, 2013. In July 2013 the Veteran filed VA Form 21-0958, Notice of Disagreement (NOD) to the June 2013 rating decision stating that he disagreed with the denials of service connection for hammertoes and a collapsed right lung, as well as denial of his dental claim. However, the June 2013 rating decision did not adjudicate a claim for dental benefits. Rather, an October 2015 rating decision denied service connection for gum disease, and the Veteran was notified thereof by letter of October 15, 2015, but he did not file an NOD to that rating decision. By RO letter of April 25, 2016, the Veteran was informed that “We cannot accept your dental claim that was included in your written disagreement dated June 7, 2013. We have never a decision on a dental claim. We will forward claim to the dental clinic at Carl Vinson VA Medical Center in Dublin Georgia.” Service Connection Background On examination in June 1975 for entrance into the Veteran’s first period of active duty no pertinent abnormality was found. In an adjunct medical history questionnaire, the Veteran reported not having or having had pain or pressure in his chest, shortness of breath, asthma, a chronic cough, and foot trouble. In August 1975 the Veteran complained of having had chest pain for 3 days and on examination he had bilateral wheezing. In September 1975 the Veteran complained of chest pain of 3 to 4 days duration. After an examination the impression was that he had a cold. In January 1976 the Veteran had a productive cough and fever. After an examination the assessment was an upper respiratory infection (URI) with bronchitis. In March 1977 the Veteran reported having pain in the anterior aspect of the chest on the left side. The assessment was a URI with intercostal muscle strain. In February 1978 the Veteran complained of a flu and chest pain upon inspiration. On examination in March 1978 for discharge from the Veteran’s first period of service no pertinent abnormality was found. A chest X-ray was within normal limits. On re-enlistment examination (into the Veteran’s second period of active service) in February 1984 no pertinent abnormality was found. In an adjunct medical history questionnaire, the Veteran reported not having or having had pain or pressure in his chest, shortness of breath, asthma, a chronic cough, and foot trouble. In October 1984 it was noted that the Veteran had a corn on his foot. On re-enlistment examination in July 1989 no pertinent abnormality was found. In an adjunct medical history questionnaire, the Veteran reported not having or having had pain or pressure in his chest, shortness of breath, asthma, a chronic cough, and foot trouble. The Veteran was hospitalized at a military hospital in Ft. Hood, Texas, in August 1991 for spontaneous pneumothorax of the right lung, for which he had a right tube thoracostomy. On examination in December 1991 for discharge from the Veteran’s second period of active service no pertinent abnormality was found. In an adjunct medical history questionnaire, the Veteran reported having shortness of breath and pain or pressure in his chest but denied having or having had asthma, a chronic cough, and foot trouble. He further indicated that the shortness of breath and chest pain referred to a collapsed right lung in August 1991 which required minor surgery during hospitalization. On examination for enlistment into the Army reserves in October 1993 no pertinent abnormality was found. In an adjunct medical history questionnaire, the Veteran reported not having or having had pain or pressure in his chest, shortness of breath, asthma, a chronic cough, and foot trouble. However, he reported that he had had a chest tube insertion in Ft. Hood Army Hospital. It was reported that he had had a collapsed lung in 1991, for which he had been hospitalized for 3 days, during which a chest tube had been inserted. No cause for the collapsing of the lung was found. The Veteran’s original claim for VA disability compensation benefits was received in July 2012, in which he claimed to have incurred hammertoes in August 1984. A February 2013 Report of Contact reflects that the Veteran sought service connection for residuals of a collapsed right lung. In VA Form 21-4138, Statement in Support of Claim, in March 2013 the Veteran reported that he reported that he had developed hammertoes from wearing combat boots while engaging in physical activities. Over the years, his feet had gotten worse and he had had surgery since his military service but the surgery had not done any good. Also during service, he had awoken one morning and had chest pain. He had been told it was a pulled muscle but a week later it was discovered that he had a collapsed lung, for which he was hospitalized at a military medical facility for four (4) days. VA outpatient treatment (VAOPT) records from 2008 to 2016 are of record. In February 2011 he had a history of spontaneous pneumothorax in 1990 treated with a thoracostomy. He had symptoms of bilateral hammertoes. In March 2011 it was noted that he had not had any medical care in more than 20 years. In June 2012 he had calluses and corns of the toes and lesser metatarsals. In November 2015 it was noted that the Veteran had a history of nicotine dependence. He smoked ½ packs of cigarettes daily. On VA respiratory examination in August 2016 the Veteran’s electronic claim file records were reviewed. The Veteran reported that during Operation Desert Storm he had awaken and had difficulty breathing. He had initially been diagnosed as having had a pulled muscle but was later diagnosed as having had pneumothorax for which he was hospitalized for four days and had a chest tube inserted. He related that since that time he had not had any medical follow-up but sometimes had chest pain upon turning in certain positions or with heavy lifting. VAOPT records showed that he smoked 3 to 4 packs of cigarettes a week. The Veteran’s current condition did not require the use of oral or parenteral corticosteroid medications, inhaled medications, oral, bronchodilators, antibiotics or outpatient oxygen therapy. His postoperative chest scar was not painful or unstable. Pulmonary function testing revealed moderate chronic obstructive pulmonary disease (COPD). The examiner summarized the Veteran’s STRs relative to his respiratory system, including the report in December 1991 of shortness of breath and pain or pressure in his chest but also observed that VA records showed no evidence of current respiratory symptoms. It was opined that the Veteran had a diagnosis of acute spontaneous pneumothorax of the right lung without residuals that was not at least as likely as not (50 percent or greater probability) incurred in or caused by (the) spontaneous right pneumothorax with right tube thoracostomy during service. Specifically, the Veteran's acute right pneumothorax healed without residual and required no further medication or treatment. It was noted that examination for enlistment into the reserves in October 1993 found no residuals that were considered disabling. Unfortunately, the Veteran was a long-term smoker and had COPD, which was unrelated to his acute pneumothorax during his service. Principles of Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). However, not every manifestation of joint pain during service will permit service connection for arthritis first shown as a clear-cut clinical entity at some later date. 38 C.F.R. § 3.303(b). There is no categorical rule that medical evidence is required when the determinative issue is either medical etiology or a medical nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Also, lay evidence can be competent and sufficient to establish a diagnosis where the layperson is competent to identify the medical condition, is reporting a contemporaneous medical diagnosis, or describes symptoms that support a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, a layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff’d sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998); see also 38 C.F.R. § 3.159(a)(1) and (2) defining, respectively, competent medical and lay evidence. Reasonable doubt will be favorably resolved and it exists when there is an approximate balance of positive and negative evidence. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. If the Board determines that the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed.Cir. 2001). 1. Entitlement to service connection for hammertoes of both feet The Veteran contends that engaging in rigorous physical activity during military service while wearing combat boots caused him to develop hammertoes. However, the STRs are negative for signs, symptoms, complaints, history, treatment, diagnosis or evaluation for hammertoes during either period of active duty. The earliest evidence of hammertoes is in VAOPT records in 2011, almost two decades after discharge from the Veteran’s second, and last, period of active duty. The only nexus of hammertoes and the Veteran’s military service is his recent reports of having had hammertoes due to rigorous physical activity during military service. On the other hand, the STRs are virtually negative for signs, symptoms, complaints, history, treatment, diagnoses or evaluations for hammertoes. If the Veteran had had disability from hammertoes in the three years of his first period of active service or his seven years of his second period of active service, it is reasonable to believe that he would have sought treatment or evaluation for complaints or symptoms due to hammertoes. However, he did not and, additionally, in repeated medical history questionnaires during each period of active duty he had ample opportunity to relate a history of disability of his feet or toes but he did not do so. The Veteran’s recent statements reporting a long history of symptoms of hammertoes are contradicted by past records in which he appears to have reported all of his existing medical conditions without mentioning any problems related to hammertoes. See AZ v. Shinseki, 731 F.3d 1303, 1315 (Fed.Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011); Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (citing FED. R. EVID. 803(7) for the proposition that “the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded”). Although a lay person is competent in certain situations to provide a diagnosis of a simple condition, a lay person is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). As applicable in this case, mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). The Board must weigh any competent lay evidence and to make a credibility determination as to whether it supports a finding of service incurrence; or, if applicable, continuity of symptomatology; or both, sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Layno v. Brown, 6 Vet. App. 465 (1994). The credibility of lay evidence may not be refuted solely by the absence of corroborating contemporaneous medical evidence, but it is a factor. Davidson v. Shinseki, 581 F.3d at 1313, 1316 (Fed.Cir. 2009). Other credibility factors are the lapse of time in recollecting events attested to, prior conflicting statements as opposed to consistency with other statements and evidence, internal consistency, facial plausibility, bias, interest, the length of time between alleged incurrence of disability and the earliest or first corroborating medical or lay evidence thereof, and statements given during treatment (which are usually given greater probative weight, particularly if close in time to the onset thereof). Here, the Veteran’s credibility is lacking because not only is there an absence of postservice evidence of disability from hammertoes until recent years, even more significantly there is also no corroborating inservice clinical evidence of hammertoes, as would reasonably be expected. Therefore, the Veteran’s current statements, made in connection with his pending claim for VA benefits, that he has experienced continuous disability from hammertoes since service are inconsistent with the contemporaneous evidence. Thus, the lay evidence of continuity of symptomatology is deemed not to be credible and, as such, is not a basis for service connection for hammertoes. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for hammertoes. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for residuals of a collapsed right lung Initially, the Board notes that the Veteran had several URIs during service but none are shown to have cause any chronic residual disability. He did have a spontaneous pneumothorax of his right lung which required his hospitalization for four days, during which he had a thoracostomy, with insertion of a chest tube. However, thereafter the STRs are negative for any residual disability except for complaints at service discharge in 1991 of shortness of breath and chest pain. On the other hand, the examination for entrance not the Army reserves in 1993 found no evidence of disability which precluded his participating in the Army reserves. Although the Veteran now reports that he has continually had chest pain since his military service, the recent VA examination revealed, in essence, that the only respiratory disability which he now has is COPD. Even his postoperative thoracostomy scar was asymptomatic. It was specifically opined by the examiner that the COPD was unrelated to the inservice pneumothorax. Rather, fairly read, the opinion of the examiner was that the Veteran’s current COPD was due to the Veteran’s long history of smoking cigarettes. The acknowledges that Veteran’s lay complaint of continued chest pain since service. On the other hand, the negative VA medical opinion considered the Veteran’s service records, the absence of treatment for a number of years after service, and other possible causative factors, i.e., the Veteran’s smoking of cigarettes for many years. As to the Veteran’s belief that his continued chest pain is due to the inservice pneumothorax or residual of the thoracostomy, the question of causation extends beyond an immediately observable cause-and-effect relationship and, as such, the Veteran being untrained and uneducated in medicine is not competent to address etiology in the present case. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, a claimant is not competent to provide evidence as to more complex medical questions). Although the Veteran is competent to describe symptoms of chest pain, unless the diagnosis is capable of lay observation, the determination as to the presence or diagnosis of such a disability is medical in nature and competent medical evidence is required to substantiate the claim. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). In this case, the Veteran is not claiming a condition which is capable of lay observation, i.e., arthritis and disc disease, because these can only be documented by appropriate imaging studies. See Jandreau, 492 F.3d at 1377 (explaining in a footnote, sometimes a layperson will be competent to identify a condition where it is simple, e.g., a broken bone, tinnitus, and sometimes not, for example, a form of cancer); see also Barr, 21 Vet. App. at 309 (varicose veins were subject to non-expert diagnosis due to the readily observable defining characteristics). As to the second and third circumstances, delineated in Jandreau, Id., when lay evidence may establish a diagnosis, the Veteran has not reported or stated that he was given a diagnosis of chronic respiratory disability, including COPD, during service (the 2nd circumstance under Jandreau). Also, as to his belief that his current respiratory symptoms are related to inservice right pneumothorax, this is simply too vague to suggest, much less establish, that he was given a formal diagnosis of COPD during service (the 3rd circumstance under Jandreau). Moreover, in adjudicating a claim, a layperson’s statements, or even clinical histories related to medical personnel do not have to be blindly accepted as true. See Smith v. Derwinski, 2 Vet. App. 137, 140 (1992) (VA “is not required to accept every bald assertion [] as to service connection or aggravation of a disability.”). The Board finds the unfavorable VA medical opinion is well reasoned, detailed, provides a rationale that is consistent with other evidence of record, and included review of the claims file and consideration of the Veteran's symptoms. The examiner acknowledged the Veteran's evidence of an inservice thoracostomy for treatment of spontaneous pneumothorax during service and accepted it as true. Also noted, however, was the lack of treatment for many years after service. The examiner thus took into account all of the medical evidence of record. The examiner set forth an accurate historical history with medical details taken from the Veteran's record on appeal, which renders the opinions especially probative. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion). As the VA examiner applied medical analysis to the significant facts of the case to reach the diagnostic conclusion, the Board finds the negative opinion to be competent, credible, and highly probative on the material issues of fact pertaining to the diagnosis and cause of the Veteran current respiratory disability and its’ putative relationship to service. This opinion opposes, rather than supports, the claim. Accordingly, the greater weight of the medical evidence is against an association or link between any current COPD and the Veteran’s thoracostomy for treatment of inservice right sided pneumothorax during service. Thus, the preponderance of the evidence is against the claim for service connection, and the benefit of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107(b) and 38 C.F.R. § 3.102. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD John Fussell, Counsel