Citation Nr: 18149335 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 16-32 704 DATE: November 9, 2018 ORDER New and material evidence has been received to reopen a previously denied claim of service connection for a disability manifested by overeating and overweight, and the application to reopen is allowed; to this extent only, the claim is granted. New and material evidence has been received to reopen a previously denied claim of service connection for an acquired psychiatric disorder, to include depression and anxiety, and the application to reopen is allowed; to this extent only, the claim is granted. Entitlement to service connection for obesity, claimed as a disability manifested by overeating and overweight, is denied. Entitlement to service connection for an acquired psychiatric disorder, to include depression and anxiety is denied. Entitlement to service connection for a respiratory disability is denied. Entitlement to service connection for a heart disability is denied. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for gallbladder surgery residuals, to include fistula and sutures in the stomach, is denied. Entitlement to a temporary 100 percent rating based on hospitalization for treatment of a service-connected disability is denied. FINDINGS OF FACT 1. The appellant is the Veteran’s surviving spouse, who was properly substituted as the claimant to continue the Veteran’s pending claims and appeal. 2. In unappealed February 1974, October 1978, and July 2000 rating decisions, the RO denied the Veteran’s original claims for an acquired psychiatric disorder and a disability manifested by overeating and overweight. 3. Evidence received since the final July 2000 rating decision is new and material, and raises a reasonable possibility of substantiating the claims of service connection for an acquired psychiatric disorder and a disability manifested by overeating and overweight. 4. The Veteran’s overeating and overweight, diagnosed as obesity is not a disability for VA compensation purposes. 5. The Veteran’s personality disorder is not a disability for which service connection may be granted, and his depression and anxiety were not incurred in-service and are not otherwise causally or etiologically related to it. 6. The record contains no competent lay or medical evidence of any injury or disease incurred in service relating to a currently diagnosed respiratory disorder. 7. The record contains no competent lay or medical evidence of any injury or disease incurred in service relating to a currently diagnosed heart disability and symptoms of coronary artery disease did not manifest until many years after separation from service. 8. There is no competent and probative evidence of the Veteran incurring additional disability that was proximately caused by carelessness, negligence, lack of proper skill, or error in judgment on VA's part following gallbladder surgery. 9. As a matter of law, the Veteran is not eligible for a temporary total rating based on hospitalization for treatment of a service-connected disability, because he does not have any service-connected disabilities. CONCLUSIONS OF LAW 1. The Veteran’s surviving spouse is a proper substitute claimant in this case. 38 U.S.C. § 5121A (2012). 2. The February 1974, October 1978, and July 2000 rating decisions denying service connection for an acquired psychiatric disorder and a disability manifested by overeating and overweight are final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.105(a), 20.302, 20.1103 (2017). 3. The additional evidence received since the July 2000 decision is new and material, and the claims of service connection for an acquired psychiatric disorder and a disability manifested by overeating and overweight are reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 4. The criteria for service connection for obesity manifested by overeating and overweight have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 5. The criteria for service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 4.9, 4.125, 4.127 (2017). 6. The criteria for service connection for a heart disability, to include coronary artery disease, have not been met. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 7. The criteria for service connection for a respiratory disorder have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 8. The criteria for compensation under the provisions of 38 U.S.C. § 1151 for residuals of a gallbladder surgery, to include fistula and sutures in the stomach, have not been met. 38 U.S.C. § 1151 (2012); 38 C.F.R. §§ 3.361 (2017). 9. The claim for a temporary total rating based on hospitalization for treatment of a service-connected disability is without legal merit. 38 C.F.R. §§ 3.157, 4.30, 3.400, 3.401 (2017); Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 2, 1968 to October 4, 1968. Although his DD-214 shows that this discharge issued under “other than honorable conditions,” a December 1968 administrative decision amended the Veteran’s discharge to “under honorable conditions.” During the pendency of the appeal, VA was notified of the Veteran’s death in November 2013. The appellant in this case is the Veteran’s surviving spouse. In a June 2016 letter, the RO notified the appellant that she met the basic eligibility for substitution for this appeal. In cases where the Veteran died after October 10, 2008, and there is already a substitute, the appeal is processed as normal, because the substitute stepped into the shoes of the deceased Veteran. See 38 C.F.R. § 3.1010(a). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). New and Material Evidence Rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a NOD with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160, 20.201, 20.302 (2017). If the Board issues a decision on appeal, confirming the RO’s decision, then the Board’s decision subsumes the RO’s decision on the same issue at hand. 38 C.F.R. § 20.1104. Moreover, if the Board’s decision is not timely appealed, then it, too, is final and binding based on the evidence then of record. 38 C.F.R. § 20.1100. An exception to the finality rule is found in 38 U.S.C. § 5108, which provides that, if new and material evidence is received with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Disability Manifested by Overeating and/or Overweight and an Acquired Psychiatric Disorder Here, the RO denied the Veteran’s original service connection claim for an acquired psychiatric disorder in a February 1974 rating decision, finding that the in-service diagnosis of immature personality was constitutional or developmental abnormality. The same was noted regarding the Veteran’s overweight, indicating that he was overweight at the time of his induction to service and complained of being overweight and placed on a diet during service, but concluded that this was constitutional or developmental abnormality and not related to service. The evidence at the time included the Veteran’s service treatment records. The evidence considered at the time included the Veteran’s service treatment records. The Veteran did not appeal the decision, and new and material evidence was not received within one year of the decision. Thus, the February 1974 rating decision became final. See 38 U.S.C. § 7105 (d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. Thereafter, the Veteran filed a claim for entitlement to a total rating based on individual unemployability (TDIU), and in an October 1978 rating decision, the RO denied the claim, indicating that it was a “reopened claim.” The RO stated that during a September 1978 VA examination, the Veteran indicated that he was overweight since childhood and mental examination show minimal depressive features commensurate with his reality situation, with a diagnosis of personality disorder, inadequate type. The evidence at the time included the Veteran’s lay assertions about his inability to work and a September 1978 VA examination report. The Veteran did not appeal the decision, and new and material evidence was not received within one year of the decision. Thus, the February 1974 rating decision became final. See 38 U.S.C. § 7105 (d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. Subsequently, in September 1999, the Veteran sought to reopen his service connection claim for a psychiatric disorder, claimed as depression, memory loss, and fatigue. In a letter later in September 1999, the RO requested that the Veteran identify new and material evidence, and after the Veteran failed to respond and submitted no additional evidence, in a July 2000, the RO notified the Veteran that his claim was denied, because he failed to submit any evidence. The Veteran did not appeal the decision, and new and material evidence was not received within one year of the decision. Thus, the July 2000 rating decision became final. See 38 U.S.C. § 7105 (d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. Thereafter, in March 2010, the Veteran filed a petition to reopen his service connection claim for overeating, depression and anxiety, indicating that he suffered from depression and anxiety for many years including the time he spent in-service, which led to overeating and overweight that resulted in years of breathing disorders. Relevant evidence received since the prior final denials of the claims includes voluminous private treatment records and lay assertions from the Veteran and the appellant. This evidence, specifically an October 2011 letter from the Veteran’s physician, which indicates that he suffered severe depression while in the military that resulted in overeating leading to obesity, relates to the unestablished element of a nexus in the prior denial. The additional evidence received since the last final denial is therefore new and material. The criteria for reopening the claims for service connection for a disability manifested by overeating and overweight as well as an acquired psychiatric disorder are therefore met. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may alternatively be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a) (2017). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. See 38 C.F.R. § 3.310(b) (2017); Allen v. Brown, 8 Vet. App. 374 (1995). The Veteran’s diagnosed coronary artery disease (CAD) is a “chronic disease” under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on “chronic” symptoms in service and “continuous” symptoms since service are applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the showing of chronic diseases in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). A Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Id. at 1287 (quoting 38 U.S.C. § 5107 (b)). Applicable to all Service Connection Claims The Veteran has asserted that his psychiatric disorders, to include overeating, respiratory disorders, and heart disabilities are related to military service. However, he has not identified any in-service incurrence of a disease or injury. Nor has he provided any explanation for why or how he believes the claimed conditions are related to service, other than his belief that they did not preexist service, and started subsequent to it. A mere conclusory generalized lay statement that a service event or illness caused the claimant’s current condition is insufficient to establish medical etiology or nexus. Waters v. Shinseki, 601 F.3d 1274 (2010). Therefore, the Board finds the Veteran’s lay opinion regarding nexus is not competent or probative on any of the claimed issues. The Veteran was not provided with VA examinations for any of the claimed disabilities during his lifetime. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in initial service connection claims, the VA must provide a VA medical examination where 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; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. Here, as will be discussed in greater detail below, there is simply no lay or medical evidence suggesting that an event, injury, or disease occurred in service. A mere conclusory generalized lay statement that military service caused the claimant’s claimed disabilities is insufficient to require an examination under McLendon. Waters, 601 F.3d at 1278-79 (rejecting appellant’s argument that his “conclusory generalized statement that his service illness caused his present medical problems was enough to entitle him to a medical examination under the standard of [38 U.S.C. § 5103A(d)(2)(B).]”). An Acquired Psychiatric Disorder and a Disability Manifested by Overeating and Overweight The Veteran asserts that his depression and anxiety, as well as his disability manifested by overeating and overweight, are related to his approximately six-months of active duty service. Prior to his death, the Veteran was diagnosed with depression, anxiety, and obesity. See e.g., private treatment records dated in October 2011. After review of all the evidence, lay and medical, the Board finds that the neither the Veteran’s acquired psychiatric disorders nor his overeating and obesity resulted from his active duty service. Turning to the evidence, the Veteran’s January 1968 enlistment examination report shows that he was seven pounds overweight (at the time he weighed 203 pounds). As a result of his early discharge, the Veteran’s STRs contain a detailed chronological description of his time in duty explaining the numerous problems leading to his separation, which was originally characterized as under other than honorable discharge. It notes that he enlisted on April 2, 1968, and on April 11 he failed to follow instructions, and on April 12 was determined to “lack all military bearing” and “had an excuse for everything.” Inspection of his area revealed a below standard condition and he did not shave or follow procedures. On April 13, it was noted that he was arrogant and had “absolutely no respect to authority.” At the time, he seemed to believe that he was prejudiced because he was Jewish, but after seeing the Chaplain, it was believed that he would straighten out. Although there was slight improvement, his military bearing was below standard, which included going to sick call six out of seven days. After receiving counseling, he showed no improvement and was removed from training pending discharge. A treatment note dated on April 11, 1968, indicates that the Veteran was very emotional and in very poor physical condition. The mental health professional noted that the Veteran had “the usual problems of homesickness,” but had “a basically good and conscientious personality and should do well.” An additional treatment note dated on April 23, 1968 indicate that the Veteran continued ot have problems in adjusting, full of hostility, and self-pity. It was recommended that the Veteran will be placed in the Motivation Flight, which was believed to help him mature. During his separation examination in August 1968, it was noted that he had no mental or physical defects warranting separation, but indicated that he was ten pounds above the maximum by Air Force standards for height and weight. It was noted that he lost twenty-five pounds in the previous five months due to diet and special training. In January 1974, the Veteran filed a claim for compensation for nervous condition, which he indicated began in 1968. In August 1978, the Veteran underwent a VA examination, at which time he reported that he had an accident seventeen month earlier and felt nervous and depressed since that accident. It was noted that he was in the military for six months and stated that he was in a program to “lose weight.” The examiner noted that he was discharged after six months for “inability to adjust,” and the Veteran stated that he believed he was discharged for “malingering,” which was described as “i.e. complained of aches and pains to get out of duty shifts.” He further reported that he was “overweight” since he was a child. The examiner concluded that the Veteran was extremely obese, but no unusual anxiety or apprehension was noted. There was evidence of minimal depressive features. The examiner rendered a diagnosis of personality disorder, in adequate type. In his September 1999 petition to reopen his claim for a psychiatric disorder, the Veteran indicated that he had depression and noted for its onset, “I forget exactly when in the service.” Private treatment records dated in May 2008 indicate that the Veteran was hallucinating and on medication for anxiety and depression. He reported that this happened to him before approximately ten-years earlier. The medical professional noted that the Veteran was a questionable historian. Thereafter, in a statement in support of claim dated in June 2010, the Veteran indicated that he was still depressed since his time in service. He further stated that he was medically discharged from service due to depression, despite his desire to remain in the service, but he was overruled by the doctor who determined that he was immature and depressed. He further noted that since that time he saw mental health professionals to treat his depression. He stated that he was at a “moderate” weight at the time of entry to service, but due to his depression, he became overweight for over thirty-years. In support of his claim, the Veteran submitted an October 2011 letter authored by his treating cardiologist who stated that the Veteran was a patient “who once served in the military,” “suffered from severe depression while in the military,” and “started overeating.” The cardiologist further noted that the Veteran eventually “became obese and developed gallstones.” In her July 2016 substantive appeal (VA Form 9), the appellant indicated that the Veteran was discharged from service against his will, to include due to psychological problems. She further stated that his depression over being discharged from service caused him to overeat and battle being overweight for the rest of his life. The Board has carefully reviewed and considered all evidence of record, both lay and medical, and finds that the Veteran’s psychiatric disorder and his overeating, overweight, and obesity, are not related to his active duty service. Regarding the cardiologist’s October 2011 letter, the Board finds that it is inadequate and ultimately carries no probative weight. First, there is no indication that the cardiologist reviewed the service treatment records, making his opinion less-informed. Notably, the doctor’s statement that the Veteran suffered from severe depression in-service is contradictory to the competent and credible documented evidence from his time in service. Moreover, the competent and probative record clearly shows that the Veteran admitted being overweight since his childhood, was overweight at entry to service, and in fact, lost 25-pounds during the few months he was in-service. Second, although the cardiologist is competent to provide a medical statement, particularly those regarding cardiovascular disabilities, he may have received some general training in psychology during medical school but is not shown to possess any specialized training in psychology. For this reason also, the opinion is afforded little to no probative value. Regarding the Veteran’s lay assertions, while he was competent to describe any psychiatric symptoms he experienced at any given time, his statements under the facts of this case were internally inconsistent and not credible. Notably, during the August 1978 VA examination, he related his depression and anxiety to a car accident that resulted in a back problem, and made no reference his psychiatric problems being related to service. In addition, while his private treatment records are replete with documentation of treatment for anxiety and depression, other than the cardiologist statement noted-above, no mental health professional related the Veteran’s psychiatric disorders to his approximately six-months active duty service. As discussed above, the service records show that the Veteran actually lost weight during service. Moreover, the Court issued a precedential decision on January 23, 2018, that upheld VA’s determination that obesity is not eligible for service connection. See Marcelino v. Shulkin, No. 16-2149, 2018 U.S. App. Vet. Claims LEXIS 64 (Vet. App. Jan. 23, 2018). In addition, VA’s Office of General Counsel (OGC) issued a precedential opinion, which concluded that obesity per se is not a disease or injury for purposes of 38 U.S.C. §§ 1110 and 1131 and therefore may not be service connected on a direct basis. Because it occurs over an extended period of time, the onset of obesity cannot qualify as an in-service “event” for the purposes of establishing service connection. However, the decision recognizes that obesity may act as an “intermediate step” between a service-connected disability and a current disability that may be service-connected on a secondary basis under 38 C.F.R. § 3.310(a). See VAOPGCPREC 1-2017. Nevertheless, as aforementioned, this is not the case in this Veteran. Furthermore, the Veteran did not report any psychological problems (i.e. depression and anxiety) until 1978, which was approximately ten years after his separation from active duty, and as discussed, at that time in 1978, he did not relate it to service. Lastly, regarding the Veteran’s diagnoses of personality disorders, personality disorders are disorders are by definition preexisting disorders, considered a congenital or developmental defect, and is not subject to service connection under 38 C.F.R. § 3.303(c) (see also 38 C.F.R. §§ 4.9, 4.127) in the absence of superimposed disease or injury during service. See VAOPGCPREC 82-90. Here, however, there is no evidence of any event in-service, which can be considered a superimposed disease or injury. “[A] claimant has the responsibility to present and support a claim for benefits.” See 38 U.S.C. § 5107 (a); Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009) (holding that it is the claimant’s general evidentiary burden to establish all elements of the claim). As the preponderance of the evidence is against these claims, they are denied. Respiratory and Heart Disabilities The Veteran asserts that his breathing problems were related to his psychiatric disorder that resulted in overeating and in turn caused his respiratory disorders. He did not explicitly explain why he thought that his heart disabilities were related to service. Prior to his death, the Veteran was diagnosed with numerous respiratory and heart disabilities, to include COPD, congestive heart failure, atrial fibrillation, and coronary artery disease. See e.g., private treatment records beginning in 1998. After careful review of all the evidence, lay and medical, the Board finds that the Veteran’s respiratory and heart disabilities did not incur in-service and are not otherwise causally or etiologically related to it. The claimed condition coronary artery disease is considered a “chronic disability” under 38 C.F.R. 3.309(a). However, there is no competent lay or medical evidence to establish (1) chronicity at the time; or (2) that it manifested to a degree of 10 percent within one year after separation from active service, or (3) that there was continuity of symptomatology from service to the present. Accordingly, presumptive service connection under 38 C.F.R. § 3.309(a) must be denied. There is also no evidence of a nexus for any of the currently diagnosed respiratory or heart disabilities. Turning to the evidence, the Veteran’s service treatment records show that during his August 1968 separation examination he reported dyspnea, which he referred to asthma that he self-diagnosed and treated; however, on physical examination, all systems were normal. During an August 1978 VA examination, it was noted that the Veteran’s chest was normal, there was no evidence of any parenchymal infiltration and both costophrenic angles as well as his lungs were clear. The heart was of the transverse type and within normal limits. He reported that he rarely smoked, but then noted that he smoked half a pack per week. Private treatment records dated in September 2004 indicate that the Veteran had asthmatic bronchitis, and noted that although he was no longer a smoker, he used to smoke four packs a day. Thereafter, in November 2007 for treatment for COPD indicate that the Veteran’s parents died from complications related to the heart, his father died at the age of 46 after a myocardial infarction (MI) and his mother died following a CABG procedure. Additional treatment records dated in October 2008 indicate that the Veteran’s family history was significant since both parents died as a result of coronary artery disease. Additional treatment records dated in March 2009 indicate that the Veteran had coronary artery disease and congestive heart failure as well as shortness of breath. It further noted that both his parents had coronary artery disease. Treatment records dated in June 2009 indicate that the Veteran was treated for increased fever and diabetes. It was noted that he had a history of obstructive sleep apnea, COPD, and obesity, and had a tracheostomy. It further noted that he had a history of hypertension, diabetes, and diabetic neuropathy, and although he was not a smoker he used to smoke in the past. In a statement in support of claim dated in June 2010, the Veteran indicated that he was on oxygen twenty-four hours, seven-days a week, and did not have these breathing problems prior to service. He further stated that he had “bouts” of pneumonia, and a heart attack, and concluded that he firmly believed it was related to service, because he did not have it before service. In her July 2016 substantive appeal (VA Form 9), the appellant indicated that the Veteran was discharged from service against his will, to include due to lung disease. After review of all the evidence, lay and medical, the Board finds that it is against the claim that the Veteran’s respiratory and/or heart disabilities are related to his approximately six-month of active duty. Regarding the Veteran’s assertion that his depression and overeating caused his respiratory disorders and heart problems, the Board finds that based on the decision herein, these conditions are not service-connected and, as such, service connection on secondary basis if not applicable. In addition, as noted above, no medical professional linked the Veteran’s disabilities to his military service, but rather, to years of smoking, and a family history of coronary heart disease and other heart problems, hypertension, and diabetes. Regarding the October 2011 cardiologist’s letter, the Board finds it inadequate and assigns it no probative weight. Notably, there is no indication that the cardiologist reviewed any of the Veteran’s service treatment records, and in addition, made no reference to the extensive family history of heart problems or to the Veteran’s year of smoking. Moreover, the cardiologist’s opinion focused on areas beyond a cardiologist’s expertise. “[A] claimant has the responsibility to present and support a claim for benefits.” See 38 U.S.C. § 5107 (a); Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009) (holding that it is the claimant’s general evidentiary burden to establish all elements of the claim). Here, all the probative competent medical evidence supports the conclusion that all of the Veteran’s disabilities are attributed to other factors such as family history of the disease, and make no reference to his military service. While the Veteran was competent to describe any symptoms he experienced, under the facts of this case, he was not competent to provide an opinion as to the etiology of his disabilities, because he was not shown to possess the necessary medical expertise to render medical opinions. As the preponderance of the evidence is against these claims, they are denied. Entitlement to Compensation Pursuant to 38 U.S.C. § 1151 In pertinent part, section 1151 provides for compensation for qualifying additional disability in the same manner as if such additional disability were service- connected. A qualifying additional disability is one in which the disability was not the result of the Veteran’s willful misconduct; and, the disability was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran; and, the proximate cause of the disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or was the result of an event not reasonably foreseeable. 38 U.S.C. § 1151 (2012). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a Veteran’s additional disability or death, it must be shown that the hospital care or medical or surgical treatment caused the Veteran’s additional disability or death; and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the Veteran’s informed consent. In determining whether additional disability exists, the physical condition immediately prior to the disease or injury upon which the claim for compensation is based will be compared with the subsequent physical condition resulting from the disease or injury. Compensation will not be payable for the continuance or natural progress of diseases or injuries for which the hospitalization or treatment was authorized. 38 C.F.R. § 3.361(b) (2017). It is also necessary to show that additional disability actually resulted from such disease, or that an injury or an aggravation of an existing disease or injury was suffered as a result of hospitalization or medical treatment and is not merely coincidental therewith. The mere fact of aggravation, alone, will not suffice to make the disability compensable in the absence of proof that it resulted from disease or injury or an aggravation of an existing disease or injury suffered as a result of training, hospitalization, medical or surgical treatment, or examination. 38 C.F.R. § 3.361(c)(1), (2). Determinations of whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32 (2017). Informed consent is the freely given consent that follows a careful explanation by the practitioner to the patient of the proposed diagnostic or therapeutic procedure or course of treatment. The practitioner must explain in a language understandable to the patient the nature of a proposed procedure of treatment; the expected benefits; reasonably foreseeable associated risks, complications or side effects; reasonable and available alternatives; and anticipated results if nothing is done. 38 C.F.R. § 17.32. The patient or surrogate must be given the opportunity to ask questions, to indicate comprehension of the information provided, and to grant permission freely without coercion. The practitioner must advise the patient or surrogate if the proposed treatment is novel or unorthodox. The patient or surrogate may withhold or revoke his or her consent at any time. The informed consent process must be appropriately documented in the medical record. 38 C.F.R. § 17.32(d). Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. 38 C.F.R. § 3.361(d)(1). Whether the proximate cause of a veteran’s additional disability or death was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2). Entitlement to Compensation Pursuant to 38 U.S.C. § 1151 – Analysis In his September 2011 claim, the Veteran indicated that he had a gallbladder surgery in the spring of 1977 at the Brooklyn VA hospital, and due to complications, it required “an ultra long” hospital stay, which resulted in a fistula. He further noted that this caused many complications later in his life, to include pain, and he believed that it was VA’s fault due to the surgery. During an August 1978 VA examination, it was noted that the Veteran had a history of cholecystectomy in 1975, with a scar noted, but otherwise the abdomen was normal, soft, and nontender, liver spleen was not felt, and bowel sounds were normal. Private treatment records from St. Peter’s Hospital, Methodist Hospital, Memorial Hospital, Albany Medical Center, and Ellis Hospital were requested in September 2010. In an October 2011 letter authored by his cardiologist, it was noted that after suffering from severe depression in the military that resulted in overeating, obesity, and development of gallstones, he underwent a surgery to remove the gallbladder and the surgical incision was not properly healed, which caused a fistula that requited further surgical intervention and several years to heal. In September 2012, a response from the New York Harbor Healthcare System noted that an extensive research for records since 1977 was done not only at the Brooklyn facility (where the Veteran reported he had his gallbladder surgery), but also the St. Albans facility and Ryerson/Chapel Street OPC; however, no records were found for this Veteran. In an October 2012 memorandum, it was noted that the reported records were unavailable after requests were made in October 2011, February 2012, and June 2012. An additional attempt to obtain the identified records was made, and in February 2014, a response indicated that a search of the records showed no indication of the Veteran being registered at the Veterans Administration Medical Centers, and even after extensive search by the file room archive supervisor, his name did not appear in their system. Although their electronic system began in the late 1990s, they also checked there, but found no records for the Veteran. No hard copies of any medical records were found. After exhausting all efforts, additional attempts to secure any such records would be futile. In her July 2016 substantive appeal (VA Form 9), the appellant indicated that the Veteran was discharged from service against his will, and later had a gallbladder operation where complications caused an abdominal fistula. She noted that the surgery was in 1980 and many attempts to get the records were to no avail. Initially, the Board notes that there is absolutely no medical evidence of the Veteran’s surgery despite multiple attempts to obtain those records. Nevertheless, even if it is assumed that the Veteran underwent a surgery to remove his gallbladder at the VA, and even if it is assumed that he suffered from some residuals and complications related to such surgery, there is absolutely no evidence to support the conclusion that any additional disability or injury resulted from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA. Indeed, his August 1978 VA examination report noted a history of gallbladder surgery in 1975 with no complications noted or reported. The October 2011 letter from the cardiologist is inadequate and of no probative weight because although it identifies some residuals and complications, it attributed the issue to the formation of gallstones due to overeating and depression, which the Board found herein are not related to service, and not to any gallbladder surgery as claimed by the Veteran. As noted above, in order for a claim pursuant to 38 U.S.C. § 1151 to be granted, it must be determined that an additional disability occurred as a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA. Pursuant to 38 C.F.R. § 3.361, this can be shown by establishing that VA treatment proximately caused additional disability, and that (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the Veteran’s informed consent. Here, there is absolutely The Board also concludes VA’s duty to assist has been satisfied. The Veteran’s service treatment records, private treatment records, and VA medical have been obtained, to the extent possible. As noted, multiple attempts were made to obtain the identified records from the Brooklyn VA, but no records were found. After exhausting all efforts, additional attempts to secure any such records would be futile. Based on the foregoing, as the preponderance of the evidence is against the claim for compensation benefits pursuant to 38 U.S.C. § 1151, the benefit-of-the-doubt rule is does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Temporary Total The applicable laws and regulations provide that a temporary total rating may be assigned for a period of one, two or three months if at least one month of convalescence is necessitated by surgery for a service-connected disability, with such benefits payable from the date of entrance into the hospital or the date of outpatient treatment for the period in question. See 38 C.F.R. §§ 3.401(h)(2), 4.30 (2017). An extension of the total convalescence rating is available up to one year from the initial date of hospitalization/treatment. See 38 C.F.R. § 4.30(b) (2017). (Continued on the next page)   As discussed above, the Board has denied the Veteran’s claims for service connection as well as his claim of entitlement to compensation benefits under 38 U.S.C. § 1151. In addition, the Veteran does not have any other service-connected disabilities. Accordingly, there is no service-connected disability upon which to base a claim for a temporary total evaluation. The pertinent facts are not in dispute and the law is dispositive, as such, this claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Yaffe, Associate Counsel