Citation Nr: 1828705 Decision Date: 05/11/18 Archive Date: 05/18/18 DOCKET NO. 14-31 755A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for bilateral foot disability to include cold injury residuals. 2. Entitlement to service connection for a duodenal ulcer. 3. Entitlement to service connection for the cause of the Veteran's death. 4. Entitlement to special monthly compensation (SMC) based on aid and attendance for the Veteran. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Wishard INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The Veteran had active military service from February 1946 to May 1947, and from November 1952 to February 1956. He died in May 2011. The appellant, his surviving spouse, has been substituted for him in the claims pending at the time of his death. (See July 2017 VA correspondence.) These matters come before the Board of Veterans' Appeals (Board) from a January 2013 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Oakland, California. In July 2017, the appellant testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. These matters were previously before the Board in November 2017 when they were remanded for further development. The Board finds that there has been substantial compliance with its directives. FINDINGS OF FACT 1. The Veteran's STRs are negative for an in-service foot disability, ulcer disability, heart disability, renal disability, or diabetes, and no such disability has been noted in the clinical records to have manifested within one year after separation from service. 2. The probative evidence is against a finding that service connection is warranted for any disability. 3. The most probative evidence is against a finding that service connection is warranted for the cause of the Veteran's death. 4. The Veteran was not in receipt of service connection for any disability during his life-time. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral foot disability to include cold injury residuals, have not been met. 38 U.S.C. § 1110, 1113, 1137 (2014); 38 C.F.R. § 3.303, 3.304 (2017). 2. The criteria for service connection for a duodenal ulcer have not been met. 38 U.S.C. § 1110, 1113, 1137 (2014); 38 C.F.R. § 3.303, 3.304. 3. The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1110, 1310, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.312 (2017). 4. The criteria for SMC based on aid and attendance for the Veteran have not been met. 38 U.S.C. §§ 1114 (l), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.350 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). All reasonable attempts have been made to obtain VA clinical records based on the assertions of treatment. All available records are associated with the claims file. (See January 2018 VA responses from Martinez VAMC and San Francisco VAMC, and February 2018 VA notice to the appellant.) Legal criteria Service connection- in general Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after service, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Caluza v. Brown, 7 Vet. App. 498 (1995), Pond v. West, 12 Vet. App. 341 (1999). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). In Robinson v. Shinseki, 312 Fed. Appx. 336 (2009), the Court held that, in some cases, lay evidence will be competent and credible evidence of etiology. Whether lay evidence is competent in a particular case is a question of fact to be decided by the Board in the first instance. The Court set forth a two-step analysis to evaluate the competency of lay evidence. First, Board must first determine whether the disability is the type of injury for which lay evidence is competent evidence. If so, the Board must weigh that evidence against the other evidence of record-including, if the Board so chooses, the fact that the Veteran has not provided any in-service record documenting his claimed injury -to determine whether to grant service connection. The Board observes that this Federal Circuit decision is nonprecedential. However, see Bethea v. Derwinski, 2 Vet. App 252, 254 (1992) [a non-precedential Court decision may be cited "for any persuasiveness or reasoning it contains"]. The Board believes that if Bethea applies to the utility of Court decisions, it surely applies to the utility of decisions of a superior tribunal, the Federal Circuit. Cause of death To establish service connection for the cause of a Veteran's death, it must be shown that a service-connected disability caused the death, or substantially or materially contributed to cause death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. The death of a Veteran will be considered as having been due to a service-connected disability when such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312 (a). A service-connected disability will be considered the principal (primary) cause of death when such disability, either singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312 (b). A service-connected disability will be considered a contributory cause of death when it combined to cause death, or aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312 (c)(1). SMC Generally, claims for SMC are governed by the provisions set forth at 38 U.S.C. § 1114 (k) through (s), and 38 C.F.R. §§ 3.350 and 3.352. SMC is payable if, as the result of a service-connected disability, the Veteran is permanently bedridden or is so helpless as to be in need of regular aid and attendance of another person. 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b). Analysis The Board has reviewed all of the evidence in the claims file, with an emphasis on the medical evidence. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. The Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. Bilateral Foot Disability In his 2011 VA Form 21-526, the Veteran asserted that he had "feet problems" which began in 1956. The appellant testified at the 2017 Board hearing that the Veteran had frostbite in Korea. There are no service treatment records (STRs) documenting a foot complaint or diagnosis. The Veteran's January 1956 Report of Medical Examination for separation purposes reflects that the Veteran's feet were normal upon examination. Post-service VA Records of Hospitalization in 1957 and 1958 reflect that the Veteran had diagnoses of an ulcer, a respiratory infection, a viral infection, and dental caries. No notation as to treatment for a foot disability was made. Subsequent private records in 1967 reflect that the Veteran had no surgeries or serious illnesses other than his ulcer, and that he worked on an assembly line. A Kaiser Foundation record, which notes a last check-up on October 1975 but does not list a date, reflects an infection. Due to the handwritten entry, the Board cannot determine if the infection was of a tooth or a foot. Regardless, even if was with regard to the foot, it was noted to have improved, and the record is negative for any mention of a chronic disability since service or due to service. The lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service connection claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Post-service podiatry records reflect that the Veteran had calcific spurring along the posterior superior and inferior ends of both calcanei (See July 1980 x-ray report from The Permanente Medical Group - Oakland.) Additional records reflect that the Veteran had elongated nails/dystrophic changes, calluses, and diabetic neuropathy. (See March, October, December 2000 Podiatry -OAK Kaiser Permanente records.) A January 2009 VA record reflects that the Veteran had not had difficulty walking. A May 2009 record reflects that the Veteran's toes were silent upon motor system examination. There is no competent indication that the Veteran, during the pendency of his claim, suffered from residuals of a cold weather injury, or that he suffered from feet disabilities since service. The Board acknowledges that the Veteran served during the Korean War and that service in Korea may have entailed exposure to cold weather; however, there is no competent credible evidence that he suffered a cold weather injury in service which resulted in a disability during the pendency of his claim. Neither the Veteran nor the appellant has not been shown to have the training, education, or experience to provide such an opinion. Moreover, any assertion as to continuity since service lacks probative value as it is contrary to the Veteran's Report of Medical Examination upon separation which was contemporaneous to service. In making such a credibility finding, the Board is not implying that the Veteran or the appellant had any intent to deceive. Rather, they may have simply been mistaken in their recollections due to the fallibility of human memory for events that occurred. While the appellant is competent to report what her husband told her, she has not been shown to be competent to state that he was diagnosed with frostbite in service, or that he suffered from residuals decades later. In sum, there is not competent credible evidence of an injury in service which caused, or aggravated, a disability during the pendency of the Veteran's claim. Thus, service connection is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Entitlement to service connection for a duodenal ulcer The evidence reflects that the Veteran had ulcer problems for many decades; however, the evidence also reflects that he had problems prior to his service and then again more than a year after separation from service. There is not competent credible evidence that the Veteran had an ulcer in service, or within one year after separation from service. The Veteran separated from his first period of active service in May 1947. In November 1950, the Veteran applied for clinical treatment (see VA Form 10-P-10) and reported that he had been sick for 24 hours and had been told that he had a "peptic ulcer" in 1942 (prior to his first period of active service). He was diagnosed with a possible peptic ulcer; hospitalization was not indicated. The Veteran was not on active duty at this time. In October 1952, the Veteran was seen at the VA medical facility in San Francisco California for pneumonia. It was noted that he had "a possible duodenal ulcer by history which was currently inactive, untreated." This was prior to his second period of service. The Veteran was discharged from the facility on November 10, 1952 and entered his second period of service on November 18, 1952. The Veteran separated from his second period of active service in February 1956. His Report of Medical Examination for separation purposes reflects that his gastrointestinal system was normal. Post service records note that the Veteran was hospitalized at a VA facility with a noted duodenal ulcer in December 1957, December 1958, December 1960, and November/December 1962. These dates are more than a year after separation from service. A June 1967 record (Dr. P.R.O.) reflects that the Veteran was seen for a duodenal ulcer and that he reported a nine-year history of epigastric pain which is intermittent. This reported onset date would be more than a year after separation from service. The Veteran reported nausea, vomiting, often retching episodes, and that he had noted some blood flecks in his vomit. He had never had frank hematemeses or melena. It was noted that he had been hospitalized three years earlier for the same symptoms. August 1967 (Kaiser Foundation Hospitals) records reflect he had chronic duodenal ulcer with scarring and surgery. It was noted that he had chronic ulcer disease with acute exacerbations since 1947, that he had first been hospitalized at Kaiser in December 1962, then again in 1963, and again in June 1967. It was noted that the Veteran had no other surgeries or serious illnesses, and took only medication for his ulcer. He worked on an assembly line at a factory. A September 1967 record (Kaiser Foundation Hospitals) also notes abdomen and right flank pain. VA records also note ulcer problems more recently (i.e. peptic ulcer unspecified since January 2005, gastric partial resection for ulcer (see 2010 VA records.)) The claims file includes August 2017 correspondence from Dr. V. Titov in which he states that the Veteran's "Peptic Ulcer Disease has a 50 [percent] probability of being a result of his past military service." Dr. Titov provided no rationale whatsoever and did not discuss the clinical records which note a history of ulcer disease prior to service. The claims file includes a February 2018 VA clinical opinion. The clinician opined in pertinent part, as follows: The Veteran was noted to have been treated in 1950 for abdominal pain, and those records indicate that the Veteran had reported that he had had a history of "peptic ulcers" since about 1942. Given that those records and records from his initial period of service 1946-'47 are not available, the Veteran's report is considered credible. He was treated for presumptive gastric ulcer immediately prior to reenlistment in 1952, and reported at entrance that he had had a "possible" duodenal ulcer, that was entirely a historical reference, although given again lack of records confirming that prior, and the consistency of the report and history of hospitalizations for occult blood positive stools and epigastric pain, that is considered a credible history. The ensuing 4 years of service records are not seen, however, there is a discharge exam in which treatment for syphilis is noted, but there is no reference to treatment for ulcer disease. The exam was normal. There is no further reference to ulcer disease until a hospitalization for such a year and a half later, and subsequent to that a number of hospitalizations are seen, in 1957, 1958, 1962, 1963, and a later document references that a partial gastrectomy was done in 1970 for management of chronic ulcer disease. Gastric/peptic /duodenal ulcer disease in this Veteran is clearly a chronic issue, and by history was present as far back as 1942, required treatment again in 1950, and again as noted above chronically from 1957 onward. Given that the historical reports suggest chronicity well before the second period of service, and given that the need for surgical treatment in 1970 was required, in this Veteran's case he had chronic ulcer disease, which worsened over time, and there is no evidence to suggest that his second tour of service was the cause of his progressive illness. The Board finds that service connection is not warranted. In making this finding, the Board notes that assuming that the Veteran was sound when he entered his first period of active duty, there is no evidence of a duodenal ulcer in service, or manifestations within one year of service, or competent evidence of continuity of symptomatology since service. Assuming that the Veteran had a pre-existing duodenal ulcer prior to his first period of service, there is not competent credible evidence that it was aggravated in service. Notably, records subsequent to the first period of service reflect that it was inactive and not requiring treatment in 1956. With regard to his second period of service, there is clear and unmistakable evidence that the Veteran had peptic ulcer disease prior to service as it was referenced in the November 1952 record; however, there is also clear and unmistakable evidence that it was not aggravated by service as his February 1956 Report of Medical Examination for separation purposes reflects that his gastrointestinal system was normal. As noted by the VA examiner, the Veteran's eventual progression was not due to service (i.e. it was not aggravated by service.) The VA clinician also stated as follows: Review of the BVA documents indicate that there is some probative weight to be given with respect to the death certificate indicating that a contributing cause in the Veteran's demise was intestinal obstruction. Review of the latter medical records in particular from 2007 onwards, does refer to the history of peptic ulcer disease, but the Veteran's GI issues at that point were related to repeated lower GI bleeding related to diverticulosis, which is unrelated to the ulcer disease in the stomach. He had multiple procedures done and several prolonged hospitalizations, most notably in 2010, for management of this issue. He had a tagged red cell scan in 2009 to try and identify the source of his bleeding and this study clearly indicates colonic origin. The 2010 hospital records clearly indicate the presence of intestinal obstruction. They do reference small bowel origin, but also indicate unequivocally that the small bowel site was at an anastomotic site of the small bowel to the large bowel, a portion of which had been removed due to the diverticulosis and recurrent bleeds. Therefore, the preponderance of evidence supports that the recurrent intestinal obstruction was not in the stomach or duodenal area, but in the distal small bowel at the site of surgical attachment to the large bowel. The 2017 note from Dr. Titov from 10/2017 opines that the peptic ulcer disease was related to military service. There is no rationale supporting this contention provided in that letter. The spousal statement included in that communication is reviewed and she indicates recalling a history of several surgeries for bleeding ulcers. That history is not in question, it is clear from the records that he did indeed have multiple procedures and hospitalizations for the peptic ulcer disease. However, again, as detailed above, review of more recent records shows that the majority of his last few years of gastrointestinal bleeding with related complications of obstruction, was lower gastrointestinal in nature. There are a number of references to the historical presence of gastric ulcer, but again, the more recent records do not indicate that the gastric ulcers were active and causally related to the recurrent obstructions located in the large bowel Therefore it is concluded that it is less likely than not that the Veteran's history of gastric ulcers were initially manifest in service, it is less likely than not that the Veteran's gastric ulcer disease was aggravated by service, and the worsening of the gastric ulcer disease was due to the natural progression of the disease. The Board finds that the February 2018 opinions are the most probative of record and do not support the claim. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Entitlement to service connection for the cause of the Veteran's death The Veteran died in May 2011. His death certificate lists the cause of death as sepsis, and an underlying cause of pneumonia. Other conditions contributing but not resulting in the underlying cause were renal failure, intestinal obstruction, malnutrition, abdominal aortic aneurysm, and diabetes mellitus. The Veteran was not in receipt of service connection for any of the above disabilities. Moreover, the record does not support a finding that any of the above disabilities was causally related to, or aggravated by service. The Veteran's January 1956 Report of Medical Examination for separation purposes reflects that his gastrointestinal system was normal, his heart and vascular system were normal, his abdomen and viscera were normal, and his urine was negative for sugar and/or albumin. There is also no competent credible evidence to support a finding that a cardiovascular-renal disease, or diabetes manifested to 10 percent within one year of separation from service so as to warrant service connection on a presumptive basis under 38 C.F.R. § 3.309. The Board has considered the appellant's contentions that the Veteran was treated in the late 1950s or early 1960s for his stomach. However, she also acknowledged that she was not married to the Veteran when he was in service and that her own memory was faulty (see Board hearing transcript pages 7 and 19.) She has not been shown to be competent to provide etiology opinions for the Veteran's disabilities. The Board also notes that the Veteran served during the Korean War. However, even assuming that the Veteran served in Korea, service connection is not warranted under 38 C.F.R. § 3.309 because he did not have service between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period. Based on the foregoing, service connection for the cause of the Veteran's death is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Entitlement to SMC based on Aid and Attendance for the Veteran SMC is payable if, as the result of a service-connected disability, the Veteran is permanently bedridden or is so helpless as to be in need of regular aid and attendance of another person. 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b). As the Veteran did not have any service-connected disabilities, SMC is not warranted as a matter of law. ORDER Entitlement to service connection for bilateral foot disability to include cold injury residuals, is denied. Entitlement to service connection for a duodenal ulcer is denied. Entitlement to service connection for the cause of the Veteran's death is denied. Entitlement to special monthly compensation (SMC) based on Aid and Attendance for the Veteran is denied. ____________________________________________ M.C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs