BVA9504641 DOCKET NO. 87-12 768 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for a heart disability. 2. Entitlement to service connection for a bilateral foot disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The veteran served on active duty from August 1968 to July 1970. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from decisions from the Regional Office (RO). By rating action of August 1986, the RO denied the veteran's claims of entitlement to service connection for a heart disability and for a bilateral foot disorder. By decision dated in September 1987, the Board remanded the case to the RO for additional development. The case was returned to the Board in June 1988. In June 1989, the Board issued a decision concerning the issue of entitlement to service connection for a skin disorder, including residuals of exposure to Agent Orange. That decision referred to the fact that the Board was issuing a separate decision concerning the matters now before the Board. Although the veteran has acknowledged that he received the Board determination regarding his claim for service connection for a skin disability, he has denied that he ever received the decision concerning his claims for service connection for heart and bilateral foot disorders. Since it is not clear whether the proper administrative procedures were followed (a copy of the decision was not placed in the claims folder), such that a presumption of regularity may be made, and since the veteran has denied receiving a copy of the decision, the Board will consider the veteran's claim on a de novo basis. CONTENTIONS OF APPELLANT ON APPEAL The veteran asserts that service connection should be established for heart disease. He reports that he indicated he had problems with shortness of breath when he entered service. He states that he was held back in basic training because he could not tolerate the physical activity due to a heart condition. He argues that his heart disorder was aggravated by the rigors of combat in Vietnam. The veteran also contends that, if he did have a bilateral foot condition prior to service, it was aggravated therein. He notes that he did not need corrective shoes before service. The veteran's representative has requested that the case be remanded in order to obtain copies of the veteran's employment examinations. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the veteran has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim of entitlement to service connection for a heart disability is well-grounded. It is also the decision of the Board that the weight of the evidence supports the claim for service connection for bilateral pes planus. FINDINGS OF FACT 1. The service medical records contain no complaints or findings pertaining to a heart disability. 2. A heart disability was first shown to be present more than ten years following the veteran's discharge from service, and has not been demonstrated to be of service origin. 3. Bilateral pes planus was first shown in service and was diagnosed following the Department of Veterans Affairs examination in 1988. CONCLUSIONS OF LAW 1. The veteran has not submitted evidence of a well-grounded claim of entitlement to service connection for a heart disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1993). 2. Bilateral pes planus was incurred in service. 38 U.S.C.A. § 1110, 1111, 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Service Connection for a Heart Disability Under 38 U.S.C.A. § 5107 (a) (West 1991), "A person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. The Secretary shall assist such a claimant in developing the facts pertinent to the claim." Clearly, the duty to assist a claimant arises only if a well- grounded claim has been submitted. The United States Court of Veterans Appeals (Court) has defined a well-grounded claim as "a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of [51]07(a)." Murphy v. Derwinski,1 Vet.App. 78, 81 (19990). The Court has also held that while "the claim may not be conclusive, the statute provides that it must be accompanied by evidence." (Emphasis in original.) Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). No competent medical evidence has been submitted in this case establishing a link between the veteran's cardiovascular disease and service. Since the claim is not well-grounded, the duty to assist does not arise. In this regard, the Board notes that the veteran has argued that his employment physical examinations should be made part of the record. However, in light of the fact that the veteran acknowledged during the hearing at the RO that he was first told that he had a congenital heart problem in 1982, these records would not be probative of his claim. Accordingly, the Board will not attempt to obtain the reports of the employment examinations. When the Board addresses in its decision a question that has not been addressed by the RO, it must consider whether the appellant has been given adequate notice to respond and, if not, whether he has been prejudiced thereby. Bernard v. Brown, 4 Vet.App. 384 (1993). In light of the appellant's failure to meet the initial burden of the adjudication process, and the fact that by dismissal of his claim he is not burdened with the prior final adjudication on the merits, the Board finds that he is not prejudiced by its consideration of these issues. Thus, if he is able to submit a well-grounded claim in the future, he will not be faced with the higher hurdle of providing new and material evidence to reopen his claim after a prior final adjudication. 38 U.S.C.A. §§ 5108, 7104, 7105 (West 1991); McGinnis v. Brown, 4 Vet.App. 239,244 (1993). Under the law, service connection may be granted for disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. Where a veteran served 90 days or more during a period of war or during peacetime service after December 31, 1946, and cardiovascular disease becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The service medical records fail to reveal that the veteran received any treatment for complaints concerning heart disease. It is true, as the veteran asserted, that he reported a history of shortness of breath when he entered service in 1968. However, a clinical evaluation at that time showed that the heart and vascular system were normal. A chest X-ray was negative. Blood pressure was 122/82. On a report of medical history in April 1970, he denied high blood pressure and palpitation or a pounding heart. A clinical examination of the heart and vascular system was normal. A chest X-ray was negative. Blood pressure was 138/82. When he was examined for discharge in July 1970, a chest X-ray was within normal limits, and blood pressure was 110/72. There is nothing in the service medical records to support his allegation that his inability to perform the physical activities caused him to be held back in basic training. VA outpatient treatment records show that the veteran reported that he had a heart attack in January 1982, when he was turning a crank on a tractor-trailer. He related that he had cardiac arrest in a private hospital, where he was admitted for seventeen days, and then was transferred to another private facility, where he underwent bypass surgery. It was noted that he had no prior history of heart problems. On VA examination in February 1988, he noted treatment for a heart condition beginning in 1982. The diagnosis was arteriosclerotic heart disease with an old myocardial infarction and coronary artery bypass grafts. In this case the evidence in support of the veteran's assertion that his heart disease was present in service or within one year thereafter consists solely of his statements. He has not submitted any competent medical evidence linking his cardiovascular disorder, which was first shown to be present in 1982, to his period of service. As a lay person, the veteran lacks the capability to provide evidence that requires specialized knowledge, skill, experience, training or education. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). No physician or other health care provider has suggested that the cardiovascular disease was present during service or within one year thereafter. The Court has held that if the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. Grottveit v. Brown, 5 Vet.App. 91 (1993). Thus, his lay assertions to the effect that cardiovascular disease is related to service are neither competent nor probative of the issue in question. Indeed, in Moray v. Brown, 5 Vet.App. 211 (1993), the Court noted that lay persons are not competent to offer medical opinions and, therefore, those opinions do not even serve as a basis for a well-grounded claim. The evidence of record establishes that the veteran's cardiovascular disease had its onset many years after service. In the absence of competent medical evidence demonstrating that cardiovascular disease was present in service or within one year following his discharge from service, the Board must find that his claim for service connection is not well-grounded. II. Service Connection for a Bilateral Foot Disability The initial question before the Board is whether the veteran has submitted a well-grounded claim as required by 38 U.S.C.A. § 5107. The Court has held that a well-grounded claim is one which is plausible or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78 (1990). In addition, in Tirpak, 2 Vet.App. at 611, the Court held that a claim must be accompanied by evidence (emphasis in original). In this case, the available service medical records and the veteran's statements, including his testimony at a hearing at the RO concerning the onset of pes planus, are sufficient to support the conclusion that his claim is well-grounded. The Board further finds that no additional development is necessary in order to comply with the duty to assist mandated by 38 U.S.C.A. § 5107. Under the law, service connection may be granted for disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110. Under the governing criteria, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by service. 38 U.S.C.A. § 1111. History conforming to accepted medical principles should be given due consideration, in conjunction with basic clinical data, and be accorded probative value consistent with accepted medical and evidentiary principles in relation to value consistent with accepted medical evidence relating to incurrence, symptoms and course of the injury or disease, including official and other records made prior to, during or subsequent to service, together with all other lay and medical evidence concerning the inception, development and manifestations of the particular condition will be taken into full account. 38 C.F.R. § 3.304(b)(2). When the veteran was examined in April 1968, prior to his entry into service, he reported a history of foot trouble, but a clinical evaluation of the feet at that time showed no abnormality. The service medical records disclose that the veteran was referred to the podiatry clinic in February 1970 with a "long history" of pain over the insteps of his feet. It was noted that he had been given wedged heels in boot camp without significant relief. An examination showed pes planus. When seen later that month at the podiatry clinic, it was indicated that he had a mildly symptomatic pes planus problem which should respond "nicely" to good supportive footgear in the year ahead. Arch supports, shoe corrections were not indicated at that time. He was returned to duty without treatment. On a report of medical history April 1970, he denied foot trouble. The feet were evaluated as normal on examination in April 1970. As noted above, a long history of foot problems was reported in service. The precise nature of the pre-service foot disorder was not specified. In Crowe v. Brown, No. 93-550 (U.S. Vet.App. Dec. 20, 1994), the Court pointed out that a disability is not "noted" as defined by 38 C.F.R. § 3.304(b) at entry when there is a history of a disability without any current clinical abnormality. The Court also held that in making the determination whether there was clear and unmistakable evidence to rebut the presumption of soundness, there must be independent medical evidence on this point. In this case, at the time of his entrance into service, the veteran merely related a history of foot problems, but a clinical evaluation was normal. Accordingly, the presumption of soundness at entrance attaches. The fact that when the veteran sought treatment in service in February 1970, he related a long history of foot pain does not provide a sufficient basis on which it may be concluded that pes planus clearly and unmistakably existed prior to service, as there is no medical opinion in the record to support such a conclusion. Accordingly, the evidence establishes that pes planus was first clinically documented during service. When the veteran was examined by VA in February 1988, it was noted that there was a moderate depression of the longitudinal and transverse arches of each foot, and moderate bulging of the medial border bilaterally. Heel-toe walking was normal. The diagnosis was bilateral pes planus. Since pes planus was initially found in service and was shown to be present during the most recent VA examination, the Board must find that pes planus was incurred in service. ORDER The claim of entitlement to service connection for a heart disability is not well-grounded and, accordingly, the appeal as to this issue is dismissed. Service connection for bilateral pes planus is granted. ___________________________ RICHARD B. FRANK Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.