Citation Nr: 18159038 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 16-49 414 DATE: December 19, 2018 ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for pes planus is denied. Entitlement to service connection for degenerative disc disease (DDD) of the lumbosacral spine is denied. Entitlement to service connection for right leg arthritis is denied. Entitlement to service connection for dental trauma is denied. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran’s hypertension was not causally or etiologically related to his military service and did not manifest within one year of separation from service. 2. The probative evidence of record indicates that the Veteran’s preexisting bilateral pes planus did not increase in service and was not aggravated beyond its natural progression during service. 3. The preponderance of the evidence shows that the Veteran’s DDD of the lumbosacral spine was not causally or etiologically related to his military service and did not manifest within one year of separation from service. 4. The preponderance of the evidence shows that the Veteran does not have arthritis of the right leg that is causally or etiologically related to his military service and did not manifest within one year of separation from service. 5. The probative evidence of record indicates that the Veteran does not have dental trauma that was incurred in service. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307(a) (3), 3.309(a) (2018). 2. The criteria for service connection for bilateral pes planus are not met. 38 U.S.C. §§ 1110, 1131, 1153 (2012); 38 C.F.R. §§ 3.303, 3.306 (2018). 3. The criteria for service connection for DDD of the lumbosacral spine have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307(a) (3), 3.309(a) (2018). 4. The criteria for service connection for arthritis of the right leg have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307(a) (3), 3.309(a) (2018). 5. The criteria for service connection for a dental trauma are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.381 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1973 to July 1975, with subsequent periods of service with the Army Reserve. These matters come before the Board of Veterans’ Appeals (Board) on appeal from March 2015 and November 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The March 2015 rating decision denied service connection for degenerative disc disease of the lumbosacral spine with low back pain (claimed as lower back arthritis) and service connection for right leg arthritis. The November 2015 rating decision denied the Veteran’s claim for service connection for hypertension, dental trauma, and pes planus. The Board notes that the Veteran has not been afforded VA examinations concerning any of his claims for service connection. A VA medical examination to be provided or medical opinion obtained, VA must determine: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran’s service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Regarding the above third element, the Court has established that it is a low threshold and requires only that the evidence “indicates” that there “may” be a nexus between the current disability or symptoms, and the veteran’s service. Id. Regarding hypertension, it was not diagnosed or treated in service. The Veteran stated that he was diagnosed within one year of separation from his Reserve service. However, as noted below, presumptive service connection does not apply for periods of active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA). Additionally, the medical and lay evidence does not show that the Veteran became disabled from hypertension during a period of ACDUTRA. Regarding pes planus, which existed prior to service, the medical and lay evidence of record does not show that it increased in severity during service. Therefore, the evidence does not indicate that it may have been aggravated by service. With regard to his low back disability, the most probative evidence of record does not indicate that it may be related to service. The medical evidence, as discussed below, shows onset of back pain in approximately 2012, decades after service. The Veteran has not asserted that his back disability began in service. The evidence does not indicate that it may be associated with service. He asserts that his pes planus caused his back to have symptoms. With regard to his right leg disability, right leg pain was first noted in 2012. Prior to 2012, VA and private medical records, including records for regular checkups, did not note complaints of right leg pain. The Veteran has not asserted that his right leg disability began in service or has continued from service. The evidence does not indicate that it may be associated with service. He asserts that his pes planus caused his right leg to have symptoms. As pes planus is not service-connected, the theory of secondary service connection for the back and right leg disabilities does not apply. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The evidence does not indicate that the Veteran has a dental disability, and the Veteran has not provided a lay description of dental trauma or symptoms of a dental trauma or disability. Therefore, VA examinations are not necessary. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2018). If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for certain diseases. 38 C.F.R. §§ 3.303 (a), (b), 3.309(a) (2018); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also 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) (2018). To establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303 (2018); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The nexus requirement of a service connection claim may be satisfied by evidence that a chronic disease subject to presumptive service connection, manifested itself to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2018). In addition to his period of active duty, the Veteran served in the Reserves, but was not called to active duty during that time. ACDUTRA in the Armed Forces is performed by Reserves for training purposes. 38 U.S.C. § 101 (22); 38 C.F.R. §3.6 (c)(1). INACDUTRA, on the other hand, is a part-time duty in the Armed Forces performed by Reserves for training purposes. 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6 (c)(1). Active military service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty for training during (INACDUTRA) which the individual concerned was disabled or died from an injury (but not disease) incurred in or aggravated in line of duty. 38 U.S.C. § 101 (21) and (24) (2012); 38 C.F.R. § 3.6 (a) and (d) (2018). When a claim for service connection is based only on a period of ACDUTRA or INACDUTRA, there must be evidence that the appellant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA or INACDUTRA for service connection to be granted. 38 U.S.C. §§ 101 (2), (22), (24); 38 C.F.R. § 3.6 (a); Donnellan v. Shinseki, 24 Vet. App. 167, 172 (2010); Acciola v. Peake, 22 Vet. App. 320, 324 (2008). Generally, no presumptions (including the presumptions of soundness, aggravation, or for presumptive diseases) apply to periods of ACDUTRA and INACDUTRA unless “veteran” status is attained during those periods. Paulson v. Brown, 7 Vet. App. 466, 470 (1995). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331(Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence considering the entirety of the record. The standard of proof to be applied in decisions on claims for veterans’ benefits is outlined in 38 U.S.C. § 5107 (2012). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102 (2018). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Service connection for pes planus is denied. The Veteran’s June 1973 enlistment examination noted that the Veteran had pes planus. Therefore, as the Veteran’s pes planus existed before service, and the presumption of soundness does not attach. A pre-existing disease or injury will be considered to have been aggravated by military service where there is an increase in disability during such service unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306 (a) (2018). A preexisting injury or disease will be presumed to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability was due to the natural progress of the disease. 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306(a) (2018). The burden is on VA to establish a lack of aggravation of the preexisting disability. VA must show that there is clear and unmistakable evidence that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153 (2017); 38 C.F.R. § 3.306(b) (2017); see also Jensen, 19 F.3d at 1417; Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). “Clear and unmistakable evidence” is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999). However, the presumption of aggravation does not apply for periods of ACDUTRA, even if the claimant achieved “veteran” status during a prior period of service. Smith v. Shinseki, 24 Vet. App. 40, 48 (2010). To show that preexisting pes planus was aggravated by his period of ACDUTRA, the Veteran has the burden to prove both elements of aggravation: 1) that there was an increase in disability as to a pre-existing injury or disease, and 2) such an increase was beyond the natural progress of that injury or disease. See 38 U.S.C. §§ 101 (24), 1153; see also Donnellan v. Shinseki, 24 Vet. App. 167, 173-75 (2010). Here, the Veteran’s (STRs) are silent for any foot complaint or treatment thereof in service. A March 1991 Report of Medical History associated with his enlistment in the Army Reserves, notes the Veteran’s pes planus. Nonetheless, there is no showing that his pes planus increased in severity during active service, ACDUTRA, or INACDUTRA. The Veteran stated that his pes planus has gotten worse “over time” but does not describe whether it became worse during service. Based on the probative evidence of record, there is no showing that the Veteran’s pes planus underwent an increase in severity during his active service period from June 1973 to July 1975. The Veteran’s STRs are silent for any foot complaints in service. Although the record notes pes planus in 1991, during the Reserves medical examination, the Veteran has not shown that it was aggravated in line of duty to the point of disabling him during a period of ACDUTRA or INACDUTRA. 38 U.S.C. § 101 (21) and (24) (2012); 38 C.F.R. § 3.6 (a) and (d) (2018). The Board acknowledges the Veteran’s lay statements. He is competent to describe observable symptoms. Because there is no universal rule as to competence on this issue, the Board must determine on a case by case basis whether a particular condition is the type of condition that is within the competence of a layperson to provide an opinion as to aggravation. Jandreau, 492 F.3d 1372 (Fed. Cir. 2007); Kahana, 24 Vet. App. 428 (2011). Laypersons are competent to provide opinions on some medical issues. Here, the Veteran’s lay assertions are outweighed by the probative evidence of record. The Veteran’s lay assertion is that his feet have gotten worse “over time,” and that service made his symptoms worse. Although he is competent to state that his symptoms have been made worse over the passage of time, he is not competent to state that the worsening is due to his period of active duty which ended decades ago. He also has not asserted that he became disabled from his pes planus during a period of ACDUTRA or INACDUTRA. As the preponderance of the evidence of record is against the claim service connection for pes planus must be denied. Gilbert, 1 Vet. App. 49 (1990). 2. Service Connection for hypertension, arthritis of the right leg and DDD of the lumbosacral spine is denied The Veteran has been diagnosed with hypertension, which he contends was incurred in service and has continued. The Veteran has also found to have degenerative disc disease of the lumbosacral spine and osteoarthritis of the right hip, which he attributes to service. Regarding osteoarthritis of the right hip, in his June 1973 report of medical history for enlistment, he reported that he had broken his leg in the past. The physician noted the Veteran’s history of a broken right leg and stated that it was “ok now.” The presumption of soundness therefore attaches for the right leg, and the medical and lay evidence does not show that right leg disability manifested in service. Therefore, a discussion of whether the presumption of soundness is rebutted is not necessary. The Veteran’s service treatment records (STRs) are silent for complaint, treatment or diagnosis of high blood pressure or hypertension, and any back or right leg conditions. Similarly, his separation physical in July 1975, notes no complaint of elevated blood pressure or hypertension or any back or right leg conditions. His blood pressure reading at separation was recorded as 120/78. Notes dated in February 1991, during a US Army Wellness Check, indicated that the Veteran “fell into the ‘borderline’ category for hypertension. During a March 1991 enlistment examination for the Army Reserves, the Veteran’s blood pressure reading was 130/80. The medical examiner noted that the Veteran’s “blood pressure was elevated one year ago on routine examination and [that he was] currently not undergoing any treatment.” The Reserves treatment records did not show that the Veteran was diagnosed with hypertension, treated for it, or became disabled from it. Private treatment notes dated in February 2013, indicate that the Veteran had a history of hypertension and DDD of the lumbosacral spine. The notes also indicated the Veteran’s complaints of pain at the right buttock that goes down his right leg. The physician assessed osteoarthritis of the right hip. Notes from Frye Regional Medical Center, dated in March 2014, indicate that the Veteran’s complaints of right leg pain started “two years ago,” in 2012. Based on the probative evidence of record, there is no showing that the Veteran’s hypertension, DDD of the lumbosacral spine and arthritis of the right leg were caused in his active service period from June 1973 to July 1975. The Veteran’s STRs were silent for a diagnosis of hypertension, and high blood pressure readings were within normal limits. There were no complaints of back and right leg conditions in service. There is also no probative evidence of record that the Veteran’s hypertension, arthritis of the right leg and DDD of the lumbosacral spine manifested within one year of discharge from service, in July 1975. The Veteran asserts that he had high blood pressure within a year from discharge from service. Borderline hypertension is noted in his STRs from his Reserve service. However, the presumption of service connection for conditions listed in 38 C.F.R. § 3.309(a) does not apply to periods of ACDUTRA or INACDUTRA. Additionally, he is not competent to determine the etiology of his hypertension, arthritis of the right leg and DDD of the lumbosacral spine, because such an inquiry requires medical inquiry into internal physiological processes which are not readily observable and are not within the competence of the Veteran who in this case, has not been shown by the evidence of record to have the necessary training, experience, or skills. Therefore, the Board finds his opinion not competent. There is no showing that the Veteran’s arthritis of the right leg and DDD of the lumbosacral spine were incurred in service. Additionally, there is no showing that they manifested within one year of active service, nor had the Veteran so asserted. The evidence also does not show that the Veteran became disabled from hypertension, DDD of the lumbosacral spine, or right leg arthritis during a period of ACDUTRA or in INACDUTRA in the Reserves. As such, the Board finds that the preponderance of the probative evidence of record weighs against the claims for service connection for hypertension, arthritis of the right leg and DDD of the lumbosacral spine. Therefore, service connection for hypertension, arthritis of the right leg and DDD of the lumbosacral spine must be denied. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2018). 3. Service Connection for dental trauma is denied Disability compensation may be provided for irreplaceable missing teeth, and disease or damage to the jaw. 38 C.F.R. § 4.150. The regulations make a fundamental distinction between “replaceable missing teeth,” and teeth lost as a result of the loss of substance of the body of maxilla or mandible due to trauma or disease such as osteomyelitis, and not the loss of the alveolar process as a result of periodontal disease. 38 C.F.R. § 4.150 (2018); Simington v. West, 11 Vet. App. 41, 44 (1998). Veterans having a service-connected, noncompensable dental condition or disability adjudicated as resulting from combat wounds or service trauma may be authorized any treatment indicated as reasonably necessary for the correction of such service-connected noncompensable condition or disability. 38 C.F.R. § 17.161(c). Trauma, as defined for purposes of dental treatment eligibility, connotes damage caused by the application of sudden, external force, brought to bear outside a clinical setting sustained as sudden trauma; for these purposes, the term “service trauma” does not include the intended effects of therapy or restorative dental care and treatment provided during a Veteran’s military service. 38 C.F.R. § 3.306(b)(1); Nielson v. Shinseki, 607 F.3d 802, 808-09 (2010). Replaceable missing and broken (fractured) teeth may be considered service connected solely for the purposes of determining entitlement to dental examination(s) or outpatient dental treatment. Simington, 11 Vet. App. 41 (1998). Under 38 C.F.R. § 3.381, treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are to be considered service-connected solely for the purpose of establishing eligibility for outpatient dental treatment. 38 C.F.R. § 17.161 (2018). Here, the Veteran contends he incurred dental trauma while in service. His June 1973 enlistment examination noted that the Veteran had an upper partial denture. The Veteran’s STRs are negative for any complaint, treatment or diagnosis of a dental condition and do not note a trauma. After consideration of the record, the Board finds that service connection is not warranted for dental trauma. The Veteran does not describe an in-service condition, event or in-service trauma and the medical and lay evidence of record does not show that he was in combat. The record also does not show that the Veteran currently has a dental disability, including osteomyelitis, or any such disease, that would cause loss of teeth due to loss of substance of the body of the maxilla or mandible. As there is no competent evidence of record that the Veteran had in-service dental trauma resulting in a dental disability for VA purposes, the claim must be denied. The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (Fed. Cir. 1997); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). In the absence of evidence of a current disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As the preponderance of the evidence of record is against the claim, and service connection for dental trauma must be denied. Gilbert, 1 Vet. App. 49 (1990). D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Stevens, Associate Counsel