Citation Nr: 0715492 Decision Date: 05/24/07 Archive Date: 06/01/07 DOCKET NO. 04-33 282 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES Entitlement to service connection for a left heel disorder. Entitlement to service connection for residuals of dental trauma. ATTORNEY FOR THE BOARD Chris Yegen, Associate Counsel INTRODUCTION The veteran served on active duty from February 1954 to May 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the benefits sought on appeal. FINDINGS OF FACT 1. There is no competent evidence that the veteran has a current diagnosis or treatment for a left heel disorder. 2. There is no competent evidence that the veteran has a current diagnosis or treatment for residuals of dental trauma. CONCLUSIONS OF LAW 1. A left heel disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West Supp. 2005); 38 C.F.R. § 3.303 (2006). 2. Residuals of dental trauma were not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West Supp. 2005); 38 C.F.R. §§ 3.303, 3.381, 4.150, 17.161 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Left Heel Disorder Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In general, service connection requires (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 evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The veteran claims that he injured his left heel during service, sometime between 1956 and 1958. However, the veteran's service medical records are not available to verify his claim. In light of the lost records, even if the Board assumes that the veteran injured his heel during service, the Board also notes that none of the post-service medical records make any reference to a disability involving his left heel and the record clearly does not indicate problems that can be associated with service many years ago. Indeed, a VA examination in May 2006 found mild sensory neuropathy of the left leg, with no association to his left heel, and an otherwise normal impression. The Board must find that this report provides evidence against the claim. Since there is no evidence that the veteran currently has a left heel disorder, VA must deny the claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (in the absence of proof of the presently claimed disability, there can be no valid claim). Even if the Board were to assume that this disorder exists, the record shows that the veteran first sought treatment for these symptoms in 2004, approximately 41 years after his separation from active duty. This 41 year period between service and when he first received treatment weighs heavily against his claim as it fails to establish continuity of treatment. See Maxson v. Gober, 230 F.3rd 1330, 1333 (Fed. Cir. 2000) (holding that such a lapse of time is a factor for consideration in deciding a service connection claim.) In conclusion, the Board finds that the preponderance of the evidence is against the veteran's claim of entitlement to service connection for a left heel disorder. Despite the veteran's statements that he currently has this condition as a result of service, as a layperson without medical expertise or training, his statements alone are insufficient to prove his claims. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992) (laypersons are not competent to render medical opinions). Accordingly, VA must deny the appeal. II. Residuals of Dental Trauma To establish service connection for a claimed disability, the facts, as shown by evidence, must demonstrate that a particular disease or injury resulting in a currently demonstrated chronic disability was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. As to each noncompensable service-connected dental condition, a determination will be made as to whether it was due to combat wounds or other service trauma. 38 C.F.R. § 3.381(b). The significance of finding that a dental condition is due to service trauma is that a veteran will be eligible for VA outpatient dental treatment, without being subject to the usual restrictions of a timely application and one-time treatment. 38 C.F.R. § 17.161(c) (2006). VA may provide compensation benefits to a veteran whose teeth have been extracted in service. Compensation is only available for certain types of dental and oral conditions listed under 38 C.F.R. § 4.150, such as impairment of the mandible, loss of a portion of the ramus, and loss of a portion of the maxilla. Compensation for loss of teeth is available only for loss of body substance of the maxilla or mandible. Otherwise, VA may grant service connection for dental conditions including treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease, for the sole purposes of receiving VA outpatient dental services and treatment, if certain criteria are met. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 17.161. The veteran claims that he received treatment for bridge work and supporting teeth during service. However, the veteran's service medical records are not available to verify his claim. Even if the Board once again assumes that the veteran received treatment for bridge work and supporting teeth during service, in this case, the Board notes that none of the post-service medical records again make any reference to a disability or treatment involving residuals of dental trauma and the record clearly does not indicate current problems that can be associated with service many years ago. Since there is no evidence that the veteran currently has residuals of dental trauma, VA must deny the claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (in the absence of proof of the presently claimed disability, there can be no valid claim). The record shows that the veteran first sought treatment for these symptoms from Dr. D.H., DDS in the 1980s. However, Dr. D.H. indicated that his office can not locate these records. Nevertheless, the veteran's dental treatment occurred 17 years after his separation from active duty. This 17 year period between service and when he first sought treatment weighs heavily against his claim as it fails to establish continuity of treatment. In conclusion, the Board finds that the preponderance of the evidence is against the veteran's claim of entitlement to service connection for residuals of dental trauma. Despite the veteran's statements that he currently has this condition as a result of service, as a layperson without medical expertise or training, his statements alone are insufficient to prove his claims. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992) (laypersons are not competent to render medical opinions). Accordingly, VA must deny the appeal. The Duty to Notify and the Duty to Assist The Board notes that VA has fully complied with the duty-to- notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 197 (2002). In particular, letters by the RO in June 2003, November 2003, June 2005, and March 2007 (1) informed the veteran about the information and evidence not of record that is necessary to substantiate his claims; (2) informed him about the information and evidence that VA will seek to provide; (3) informed him about the information and evidence he is expected to provide; and (4) requested him to provide any evidence in his possession that pertains to the claims, or something to the effect that the claimant should "give us everything you've got pertaining to your claims." Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board notes that VA has fully complied with the Court's holding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which states that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Federal Circuit recently held that a statement of the case or supplemental statement of the case can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC. See Mayfield v. Nicholson, No. 02-1077 (U.S. Vet. App. December 21, 2006) [hereinafter Mayfield III]. As a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. See Mayfield III, (citing Mayfield v. Nicholson, 444 F.3d at 1328, 1333-34). In any event, the Board finds that any deficiency in the notice to the veteran or the timing of these notices is harmless error. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that the Board erred by relying on various postdecisional documents to conclude that adequate 38 U.S.C.A. § 5103(a) notice had been provided to the appellant, the Court found that the evidence established that the veteran was afforded a meaningful opportunity to participate in the adjudication of his claims, and found that the error was harmless, as the Board has done in this case.) VA also fulfilled its duty to obtain all relevant evidence with respect to the issues on appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO obtained all relevant medical records that were available. Unfortunately, the veteran's service medical records and Social Security Administration (SSA) records are missing. A request to the SSA National Records Center noted that the veteran's folder has been destroyed. The RO also submitted a request to the National Personnel Records Center (NPRC) in October 2002 which determined that his records were presumably destroyed by a fire in 1973. In a January 2007 memorandum, the RO noted that efforts to obtain these records were unsuccessful and that further attempts are futile. In cases involving missing service medical records, VA has a heightened obligation to assist the claimant in the development of the case. This heightened duty to assist includes searching for alternate methods of proving service connection. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991) (holding that, where the veteran's service medical records are unavailable through no fault of the veteran, there is a heightened obligation for VA to assist the veteran in the development of his case and to provide reasons or bases for any adverse decision rendered without these records); Moore v. Derwinski, 1 Vet. App. 401 (1991) (holding that the heightened duty to assist a veteran in developing facts pertaining to his claim in a case in which service medical records are presumed destroyed includes the obligation to search for alternative medical records). The VA Adjudication Procedure Manual provides that the RO may use alternate sources of evidence in cases such as this in which service medical records are missing. The following non-exhaustive list of documents may be substituted for service medical records in this case: statements from service medical personnel, "buddy" certificates or affidavits, employment physical examinations, medical evidence from hospitals, clinics and private physicians by which or by whom a veteran may have been treated, especially soon after service discharge, letters written during service, photographs taken during service, pharmacy prescription records, and insurance examinations. VA Adjudication Procedure Manual, Manual M21-1, Part III, paragraph 4.25(c) and 4.29 (October 6, 1993). The RO properly notified the veteran of alternative sources of evidence in a VCAA letter dated in June 2003. In correspondence dated in July 2004, the veteran provided the names and some addresses of individuals who served with him and who may have treated him. However, a letter from the RO dated in September 2004 notified the veteran that it was his responsibility to contact these individuals and collect statements regarding his claimed service-connected conditions. Unfortunately, the veteran was unable to assemble any statements from service medical personnel, buddy statements, employment physical examinations, letters written during service, photographs taken during service, in any attempt to establish that he was treated for a left heel disorder or a dental trauma disorder in service. Accordingly, the Board finds that no further action is necessary to meet the requirements of the VCAA. ORDER The appeal is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs