Citation Nr: 1807269	
Decision Date: 02/05/18    Archive Date: 02/14/18

DOCKET NO.  14-17 366	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1.  Entitlement to service connection for a cardiovascular disability.

2.  Entitlement to service connection for residuals of a cerebrovascular accident (stroke).

3.  Entitlement to service connection for residuals of a left foot infection.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

N. Staskowski, Associate Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from September 1970 to June 1973.  These matters are before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision by the Roanoke, Virginia, Department of Veterans Affairs (VA) Regional Office (RO).  

The issues service connection for heart disease and residuals of a CVA are being remanded to the AOJ.  VA will notify the Veteran if action on his part is required.


FINDING OF FACT

The Veteran is not shown to have (or during the pendency of this instant claim to have had) any residuals of a left foot infection.


CONCLUSION OF LAW

Service connection for residuals of a left foot infection is not warranted.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

VA's duty to notify was satisfied by a letter in January 2013.  38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); a notice deficiency is not alleged.  See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

All identified pertinent private and VA treatment records are associated with the record.  The Veteran was afforded a VA examination in connection with this claim.  A duty to assist omission is not alleged.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) ("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 duty to assist argument).

Legal Criteria, Factual Basis, and Analysis

Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service.  38 U.S.C. § 1110; 38 C.F.R. 
§ 3.303.  To substantiate a claim of service connection there must be evidence of: (i) a current disability for which service connection is sought; (ii) incurrence or aggravation of a disease or injury in service; and (iii) a causal relationship between the current claimed disability and the disease or injury in service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value.  Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a).  The existence of a current disability is the cornerstone of a claim for VA disability compensation.  See Degmetich v. Brown, 104, F.3d 1328 (Fed. Cir. 1997).  

Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson.  38 C.F.R. § 3.159 (a)(2).  Competent medical evidence is necessary where the determinative question requires medical knowledge.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises.  Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159 (a)(1).

The Board notes that it has reviewed all of the evidence in the Veteran's record with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Hence, the Board will summarize the relevant evidence as deemed appropriate and the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the claims.

The Veteran's service treatment records are silent regarding left foot injury, complaints, diagnosis, or treatment.  On May 1973 separation examination, his feet were normal on clinical evaluation; in his report of medical history at the time he did not endorse having had a history of foot trouble/injury or skin disease.  

A May 2012 diabetic foot examination record notes the Veteran's feet had normal sensation and circulation without deformity or ulceration (and that there was no history of ulcers).

On October 2013 examination on behalf of VA the consulting provider found that there was no current diagnosis pertaining to an infected left foot because there was no pathology to support such diagnosis.  The consulting provider noted the Veteran's report that he scraped the foot in service, but noted that there was no residual scarring (or other pathology) from such injury.   

The threshold question that must be addressed here, as in any claim seeking service connection, is whether or not there is competent evidence that the Veteran currently has (during the pendency of the claim) the disability for which service connection is sought (residuals of a left foot infection).  The record does not show that he has such disability.  He has not submitted any evidence showing (or suggesting) that he has a left foot disability that is a residual of an infection in service.  And the VA examination scheduled in connection with this claim did not find any pathology associated with a left foot infection (and the examiner indicated that such disability could not be diagnosed).

As such, in the absence of a diagnosed disability (now or during the pendency of the claim) the appeal in this matter must be denied.

Compensation for service connected disability is warranted only where service-connected disease or injury has resulted in a disability.  Absent proof of a present disability, there is no valid claim of service connection.  See Brammer v. Derwinski, 3 Vet. App. 223 (1992).  As the Veteran has not met the threshold requirement of showing he has any current disability that is a residual of a foot infection in service, he has not presented a valid claim of service connection.  Accordingly, the appeal in this matter is denied.


ORDER

Service connection for residuals of a left foot infection is denied.


REMAND

At the outset, it is noteworthy that the Veteran served in Vietnam (and is entitled to consideration of his claims under the presumptive provisions of 38 U.S.C. § 1116), and that he has established service connection for type 2 diabetes mellitus.

In pertinent part, the instant claim sought service connection for heart attack and stroke.  A DBQ examination found the Veteran has hypertensive heart disease and was post 2 CVA's.  Service connection was denied essentially on the basis that those diagnosed entities are not ischemic heart disease (and do not warrant a presumption of service connection under 38 U.S.C.§ 1116).  

The record shows that the Veteran has a lengthy history of treatment of cardiac problems (including surgical intervention).  He has stated that he has had a heart attack (myocardial infraction), which does fall within the definition of ischemic heart disease.  He was seen in July 2010 for follow-up for diabetes, residuals of stroke, and cardiac concerns (suggesting he received earlier treatment).  Records of his private treatment prior to July 2010 are not associated with the record, may contain critical information (confirming he had a myocardial infarction, e.g.) and must be secured for the record.  

The Veteran has also alleged secondary service connection theories of entitlement (i.e., heart attack/disease claimed secondary to diabetes, and stroke claimed as secondary to diabetes or to a heart disability).  Whether or not a service connected disability such as diabetes caused or aggravated the claimed disabilities is a medical question that has not been adequately addressed by the medical evidence in the record.  Further development of medical evidence in the matter is necessary.

Finally, the Veteran's VA medical records in the claims file have not been updated since January 2013; available records show ongoing treatment for cardiovascular and cerebrovascular concerns.  Updated (since January 2013) records of his VA evaluations and treatment for diabetes, and cardiovascular and cerebrovascular disabilities may contain pertinent information, are constructively of record, and should be secured.

The earliest postservice (private) treatment records in the record are from July 2010 (when the Veteran was seen for follow up care related to diabetes, a CVA, and dyslipidemia).  Treatment records note diagnoses of obesity, CVA, DM, and mixed hyperlipidemia.  It was noted that the Veteran was on ongoing treatment with Plavix as a result of a CVA.  Any existing records of cardiac/cardiovascular evaluations or treatment he received prior to July 2010 (e.g. records relating to the Veteran's prior CVAs) are likely to contain pertinent information [such as regarding continuity of postservice symptoms], and must be sought.

Accordingly, the case is REMANDED for the following:

1.  The AOJ should ask the Veteran to identify all providers of evaluations and treatment he has received for any diabetes, and cardiovascular or cerebrovascular complaints (records of which are not already associated with his VA record), and to submit authorizations for VA to secure complete clinical records of all outstanding records of the private evaluations and treatment (of particular interest are any records of treatment he received for diabetes, and cardiovascular/cerebrovascular complaints prior July 2010 and records pertaining to when he suffered his reported heart attack).  

The AOJ should secure complete clinical records from all providers identified.  The AOJ should specifically secure all updated since 2013 records of VA treatment the Veteran has received for diabetes and cardiovascular or cardiac disability.

2.  The AOJ should thereafter arrange for the Veteran to be examined by an appropriate physician  to determine the nature and likely etiology of his cardiac/cardiovascular disability and the etiology of his strokes.  The Veteran's record must be reviewed by the examiner in conjunction with the examination.  Based on a review of the record and interview and examination of the Veteran, the consulting provider should provide an opinion that responds to the following:  

(a)  Please identify (by diagnosis) each cardiac/cardiovascular disability found (or shown by the record during the pendency of the instant claim). Specifically, is there evidence in the record that he has suffered a myocardial infarction?.   

(b)  Is any cardiac disability diagnosed an ischemic heart disease?

(c) Please identify the likely etiology for any cardiovascular disability that is not an ischemic heart disease.  Specifically, was any such disability caused or aggravated (the opinion must address aggravation) by the Veteran's service connected diabetes mellitus?

(d) Please identify the etiology for the Veteran's strokes.  Specifically were they caused or aggravated by the Veteran's diabetes mellitus or by any cardiovascular disability that is found to be etiologically related to the Veteran's service?

The examiner must explain the rationale for all opinions.

4.  The AOJ should then review the record, and readjudicate the remanded claims (addressing all theories of entitlement raised).  If either remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his representative opportunity to respond, and return the case to the Board.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).



______________________________________________
GEORGE R. SENYK
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs