Citation Nr: 0709206 Decision Date: 03/29/07 Archive Date: 04/16/07 DOCKET NO. 05-01 320 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUES 1. Entitlement to service connection for pes planus. 2. Entitlement to service connection for asthma. REPRESENTATION Appellant represented by: Thomas Reed, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The appellant had active service from June 1953 to August 1955. This case comes to the Board of Veterans' Appeals (Board) from decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Wilmington, Delaware. By rating action in October 2002 service connection was denied for flat feet. In a May 2005 rating decision service connection was denied for asthma. In April 2006, the veteran presented testimony at a video conference hearing conducted by the undersigned. FINDINGS OF FACT 1. Pes planus is not shown by competent medical evidence to have a nexus to service. 2. Asthma is not shown by competent medical evidence to have a nexus to service. CONCLUSIONS OF LAW 1. Pes planus was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.303, 3.304 (2006). 2. Asthma was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSIONS Under 38 U.S.C.A. § 5102 VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. Second, under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., evidence of veteran status; existence of a current disability; evidence of a nexus between service and the disability; the degree of disability, and the effective date of any disability benefits. The veteran must also be notified to submit all evidence in his possession, what specific evidence he is to provide, and what evidence VA will attempt to obtain. VA thirdly has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This includes obtaining all relevant evidence adequately identified in the record, and in some cases, affording VA examinations. 38 U.S.C.A. § 5103A. In this case, there is no issue as to providing an appropriate application form or completeness of the application. Written notice provided in December 2001 and February 2005 correspondence, amongst other documents considered by the Board, generally fulfills the provisions of 38 U.S.C.A. § 5103(a), save for a failure to provide notice addressing the type of evidence necessary to establish a disability rating and an effective date for the disability on appeal. The claims were readjudicated in December 2004 (flatfeet) and October 2005 (asthma) statements of the case. The failure to provide notice of the type of evidence necessary to establish a disability rating and an effective date for the disabilities on appeal is harmless because the Board has determined that the preponderance of the evidence is against the claims. Hence, any questions regarding what rating or effective date would be assigned are moot. The Board acknowledges that under 38 U.S.C.A. § 5103(a), notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case, any error was cured by providing notice and readjudicating the claims. The veteran has been afforded a meaningful opportunity to participate in the adjudication of his claims, to include the opportunity to present pertinent evidence. Thus any error in the timing was harmless, the appellant was not prejudiced, and the Board may proceed to decide this appeal. Simply put, there is no evidence that any VA error in notifying the appellant that reasonably affects the fairness of this adjudication. ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). VA has secured all available pertinent evidence and conducted all appropriate development. There is no pertinent evidence which is not currently part of the claims file that has been adequately identified to permit its addition. Hence, VA has fulfilled its duty to assist the appellant. Background The veteran's August 1953 enlistment examination is silent for any evidence of asthma or pes planus. The veteran's lungs and feet were clinically evaluated as normal. Unfortunately, no other service department medical records are available, and they may have been lost in the 1973 fire at the National Personnel Records Center (NPRC) in St. Louis, Missouri. The United States Court of Appeals for Veterans Claims (Court) has indicated that in such cases, the Board has a heightened obligation to explain its findings and conclusions, and to consider carefully the requirement that the benefit of the doubt be resolved in favor of the veteran. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board will comply with this heightened obligation in addressing the veteran's claims. As noted there are no service medical records which reveal any chronic asthma or bilateral pes planus disorder. Notably, however, the veteran in his April 2006 video conference hearing testified that he did not complain of asthma or flat feet in service, nor was he treated or diagnosed for flat feet or asthma in service. VA and private treatment records for the period since March 1962 do not reveal any treatment or diagnoses of asthma. There are, however, two medical records, one dated October 1982, from the Dickinson Medical Group, and the other a November 2003 VA outpatient clinic record which note flat feet. No other comments, treatment records are offered, and no nexus opinions are offered. Contrary to any suggestion by the appellant, his VA outpatient clinic physician did not offer an opinion linking any current disability to service. Two non service pension claims were filed by the veteran in November 1964 and December 1982. Neither reported pes planus disorder or asthma. Subsequent to the denial of the November 1964 claim, the veteran filed a notice of disagreement wherein he stated that he had been told postservice that he had asthma. An April 2005 letter from the representative notes that the veteran thought he had asthma as a child which stopped when he reached adulthood. It subsequently reoccurred after he was exposed to the gas chamber training in service. This was the only attack in service. After discharge he was treated by Dr. Cambell, Ocean View, Maryland. This physician was deceased and his records were unavailable. Thereafter he was treated by a Dr. Angell, Millsboro, Delaware from 1958 to 1959. These records were also unavailable. Analysis In order to establish service connection for a disability, there must be objective evidence that establishes that such disability either began in or was aggravated by service. 38 U.S.C.A. §§ 1110, 1131. Such a determination requires a finding of a current disability that is related to an injury or disease incurred in service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. To establish service connection for a claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of the 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. Hickson v. West, 12 Vet. App. 247, 253 (1999). The Court has held that the second and third elements can be satisfied, under 38 C.F.R. § 3.303(b), by the submission of (a) evidence that a condition was "noted" during service or during an applicable presumption period; (b) evidence showing post-service continuity of symptomatology; and (c) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. McManaway v. West, 13 Vet. App. 60, 65 (1999) (citing Savage v. Gober, 10 Vet. App. 488, 495-97 (1997)). Lay statements from the veteran's relatives have been received, as well as his statements and testimony. As laypersons, these statements and testimony as to medical diagnosis do not constitute competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492 (1992); 38 C.F.R. § 3.159(a)(l). After a review of the evidence, the Board concludes that the preponderance of the evidence is against finding that the appellant's asthma and pes planus are related to service. There is no competent evidence which links either disorder to service. Moreover, the veteran has testified that he did not report and he did not seek treatment for asthma or flat feet while in service. Without competent evidence of a chronic disorder in-service, and without competent evidence linking a current disorder to service, the claims must be denied. In reaching this decision the Board considered the veteran's own argument that these disorders were incurred while on active duty. There is no evidence, however, showing that the veteran has the medical training necessary to offer an opinion which requires specialized medical knowledge. As such, the veteran is not competent to offer such an opinion. Espiritu. Finally, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the veteran's claims, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for asthma is denied. Entitlement to service connection for flat feet is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs