Citation Nr: 1313673 Decision Date: 04/24/13 Archive Date: 05/03/13 DOCKET NO. 99-05 397 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a left foot disorder, to include as secondary to the service-connected right foot disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran had active duty for training from February 6, 1980 to March 24, 1980. This matter came before the Board of Veterans' Appeals (Board) on appeal from a July 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Which declined to reopen the claim for service connection for a left foot disorder as new and material evidence had not been submitted. In September 2004, the Board remanded the appeal to afford the Veteran an opportunity to present testimony at a Board hearing. In September 2006, the Veteran testified during a hearing before the undersigned Veterans Law Judge at the RO. In March 2007, the Board reopened the claim for service connection for a left foot disorder and remanded the appeal for further development. In October 2009 and June 2010, the Board again remanded the appeal for further development. In April 2012, the Board solicited an expert medical opinion from the Veterans Health Administration (VHA). The Board received the opinion in June 2012. Copies of the opinion were sent to the Veteran and her representative in August 2012. At that time, the Board advised the Veteran that she had 60 days to submit additional evidence in connection with her claim. In September 2012, she submitted additional evidence with a waiver of RO review. In February 2013, the Board noted that the copy of the VHA opinion sent to the Veteran's representative had been sent to an incorrect representative. Thus, the Board forwarded the Veteran's claims file to the correct representative to provide an opportunity to review the opinion and submit any argument, to include an informal hearing presentation. In April 2013, the Board received a brief from the Veteran's representative that included acknowledgment of the opinion and further argument. Thus, any error in due process has been cured and the Veteran has been afforded representation at all stages of the appeal. See 38 C.F.R. § 20.600 (2012). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The weight of the probative medical evidence does not show that a left foot disorder is causally related to the service-connected right foot disorder. 2. The evidence clearly and unmistakably shows that a left foot disorder pre-existed active service and was not aggravated by active duty for training. CONCLUSION OF LAW The criteria for service connection for a left foot disorder, to include as secondary to the service-connected right foot disorder, have not been met. 38 U.S.C.A. §§ 1111, 1131, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Before addressing the merits of the issue of entitlement to service connection for a left foot disorder, to include as secondary to the service-connected right foot disorder, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant and his or her representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, neither the Veteran nor her representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. The Board acknowledges that proper notice was not issued prior to the adverse determination on appeal. However, in a January 2003 letter, the Veteran was notified of the criteria for establishing direct service connection, the evidence required in this regard, and her and VA's respective duties for obtaining evidence. The claim was thereafter readjudicated in a May 2003 supplemental statement of the case (SSOC). In an August 2006 letter, she was notified of how VA determines disability ratings and effective dates if service connection is awarded. The claim was thereafter readjudicated in an August 2009 SSOC. Accordingly, any timing deficiency has been appropriately cured. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board acknowledges that the Veteran was not properly informed of the criteria for establishing secondary service connection. However, the numerous statements made by the Veteran referencing her compensated gait due to her service-connected right foot disorder indicate actual knowledge of the evidence needed to support a claim based on secondary service connection. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Thus, any notice error in this regard is deemed harmless and does not preclude appellate review. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting her in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, all necessary development has been accomplished and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. The Veteran's statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the claim. VA has provided the Veteran with multiple examinations to determine the nature and etiology of her disability. 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide an examination or obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). As the rationales for the opinions of record were insufficient, the Board requested an expert medical opinion from the VHA in April 2012. The Board finds the VHA opinion to be thorough and adequate upon which to base a decision on the claim, as it was based on a full reading of the Veteran's claims file, including the service treatment records, private and VA medical records, and the Veteran's own statements, and is supported by sound rationale. In the June 2010 remand, the Board requested that the Appeals Management Center (AMC) obtain the Veteran's Social Security Administration (SSA) records and obtain clarification of an opinion provided by a VA examiner in March 2008. The AMC obtained the Veteran's SSA records in July 2010. The AMC afforded the Veteran a new VA examination in October 2010 and obtained further clarification in December 2011, both of which were substantially responsive to the Board's request. See Dyment v. West, 13 Vet. App. 141 (1999). Ultimately, however, the Board determined that a VHA opinion was necessary to properly address the complex medical questions involved. As indicated above, the June 2012 VHA opinion has been found to be adequate. Given the above, no further assistance is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). In this case, the disorder at issue is not a "chronic disease" listed under 38 C.F.R. § 3.309(a) (2012). Therefore, 38 C.F.R. § 3.303(b) (2012) regarding continuity of symptomatology to establish service connection, does not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The term "active military, naval, or air service" includes: (1) active duty; (2) any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. 38 U.S.C.A. § 101(2), (24) (West 2002 & Supp. 2012); 38 C.F.R. § 3.6(a) (2012). Where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by 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, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). The presumption provisions contained in 38 C.F.R. §§ 3.307 and 3.309 apply only to periods of active duty, not ACDUTRA or INACDUTRA. See Paulson v. Brown, 7 Vet. App. 466 (1995) (if claim relates to period of ACDUTRA, a disease or injury resulting in disability must have manifested itself during that period). The presumption of soundness provides that a 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 such service. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2012). To rebut the presumption of soundness, VA must show by clear and unmistakable evidence that (1) the disease or injury existed prior to service and (2) the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 2003). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 3-2003 (July 2003); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2012). Establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be granted for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (2012). Service connection is permitted not only for a disability caused by a service-connected disability, but also for the degree of disability resulting from aggravation to a nonservice-connected disability by a service-connected disability. 38 C.F.R. § 3.310 (2012); Allen v. Brown, 7 Vet. App. 439 (1995). The determination as to whether the requirements for service connection are met is based on an analysis of all of the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 3.303(a). See Baldwin v. West, 13 Vet. App. 1 (1999). In this case, the Veteran contends she has a left foot disability as a result of her service-connected postoperative residuals of a right foot injury with sesamoid fracture. She asserts that the compensated gait due to her right foot disability caused her left foot disability. The Veteran's July 1979 enlistment examination shows normal lower extremities and feet and does not note any left foot disorders. She denied any history of left foot problems. Prior to entering ACDUTRA in February 1980, the record indicates that the Veteran injured her right foot in October 1979. A March 1980 service treatment record, one month after the Veteran's entrance into ACDUTRA, shows complaints of bilateral foot pain. Examination showed pain in both arches and under the tibial sesamoid of the right foot. X-rays showed pes cavus and a questionable old tibial sesamoid fracture on the right foot. The diagnosis was of acquired, symptomatic pes cavus. An April 1980 VA treatment note reflects complaints of pain in the ball of the right foot with a history of twisting the right great toe in service that was treated for two weeks with short leg casts. X-rays showed a fragmented sesamoid bone under the right first metatarsophalangeal joint and an intact sesamoid bone on the left. The diagnosis was of a stress fracture or osteochondritis of the sesamoid of the right first metatarsal joint. A metatarsal pad and arch support were issued later that month. A September 1980 VA treatment note reflects a history of osteoarthritis or nonunion of the medial sesamoid bone under the right great toe relieved by a metatarsal bar. Gait was abnormal without shoes but much improved with the metatarsal bar. A December 1981 VA operation report reflects a history of injury to the sesamoids of both feet during basic training with subsequent development of osteochondritis dessicans. Excision of the left lateral sesamoid was performed. The discharge report notes a history of bilateral foot pain for approximately two years. A January 1982 VA orthopedic examination report shows complaints of left foot pain and notes that the Veteran has been favoring her right foot for two years, putting a strain on the left foot. A June 1982 letter from a VA physician notes that the Veteran's injury to the sesamoid bones of the right foot in service required crutches and cast walking for a prolonged period of time and led to a problem with the left leg. The physician opined that the discomfort and factures of the sesamoid bones of the left foot resulted directly from the compensated gait as a result of the right foot injury. A December 1983 VA operation report reflects a history pes equinus and a very painful left foot with a prior fibular sesamoid removal. Sesamoidectomy, excision of scarified neuroma of the first metatarsal head, and tendo Achilles lengthening were performed. A June 1999 evaluation report from a private physician reflects complaints of bilateral foot and ankle pain with a long history of fractures of the sesamoid bones with fragment removal on the right in 1980, then a compensatory left sesamoiditis with fracture and fragment removal, followed by Achilles lengthening and tear on the left. The physician opined that the Veteran's left foot sesamoid fracture and fragment removal are directly related to the initial right foot injury and resultant compensatory gait. The physician noted that this is frequently seen in prolonged casting and crutch walking. In March 2007, based on the medical evidence of record, the Board requested that the Veteran be afforded a VA examination to determine the etiology of her left foot disorder. A March 2008 VA examination report reflects the examiner's conclusion that the Veteran's left foot disorder was not due to or aggravated by service or the service-connected right foot disorder. The examiner indicated that the left foot disorder pre-existed the period of ACDUTRA and was not aggravated during that time. However, the examiner failed to provide a rationale for either assertion. In this regard, the enlistment examination does not note any existing left foot disorder and records from ACDUTRA show complaints of left foot pain. The examiner also failed to comment on the June 1982 VA physician's letter or the June 1999 private medical record, both of which relate the Veteran's left foot disorder to her service-connected right foot disorder. In light of these deficiencies, the Board requested clarification of the opinion. As the above examiner was unavailable, the Veteran was afforded a new VA examination in October 2010. The examiner provided diagnoses of bilateral pes cavus and left foot metatarsalgia, and concluded that the pes cavus pre-dates active duty service and there is no evidence of aggravation of the left foot condition above the normal progression of the condition due to her active duty service. In a December 2011 addendum, the above examiner noted the positive opinions in the June 1982 letter from the VA physician and June 1999 report from the private physician, but concluded that the Veteran's left foot disability was not secondary to the service-connected right foot disability, noting that the left foot disability was due to genetics and obesity. The examiner also cited to the medical literature, which showed that there is no clear evidence to suggest that an injury to one leg has any significant impact on the opposite uninjured leg unless the injury resulted in major muscle or nerve damage causing partial or complete paralysis of the damaged leg and/or shortening of the injured leg resulting in a limb discrepancy of more than four centimeters so that the gait pattern has been altered to the extent that clinically there is an obvious significant limp. The examiner added that the use of a cast, cane, and crutches is unlikely to have any major impact on the uninjured leg. Due to the complex medical questions in the case, the Board requested a VHA opinion, which was received in June 2012. The physician concluded that the Veteran's pes cavus is a developmental condition that would be unchanged since she completed her growth and there is nothing in the record that shows that she had any change in the configuration of her foot, or degree of pes cavus, during active duty for training. The physician also concluded that the Veteran's left foot pain was not related to any problem or injury to the right foot, to include any treatment therefor. The physician noted that, from his 35 years of experience and a review of the medical literature during that time, he has never seen even a suggestion that an injury to one foot would be expected to cause a problem with the other foot. The physician stated that even patients with a lower extremity amputation who do not use an artificial limb do not report having a problem with their other feet. The physician acknowledged the June 1982 opinion but observed that the opinion seems to be an afterthought that is not supported by any evidence. The physician noted that there is nothing in the record to support the contention that there was ever a consideration that surgery or other treatment for the right foot would be harmful to the left foot. The physician acknowledged the June 1999 opinion but observed that the opinion was also not supported by the facts. The physician noted that the initial injury was only to the right foot and the Achilles rupture, occurring 13 years after Achilles tendon lengthening, was more likely a spontaneous rupture. The Board notes that the VHA physician was unable to locate the October 2010 VA examination report and December 2011 addendum. However, the Board points out that the gist of those reports was included in the VHA request. More importantly, those reports contain opinions that are against the claim. It would be different had the physician been unable to locate the June 1982 and June 1999 documents, which contain opinions in favor of the claim. Thus, the Board finds that the physician's inability to review the above evidence was not prejudicial to the Veteran. The Board notes that the VHA physician was also unable to locate the December 1983 VA operation report of the left Achilles tendon lengthening. However, the physician reviewed the notes of postoperative visits beginning in May 1985 and concluded that the procedure occurred a short time before then. More importantly, the operation occurred two years earlier than concluded by the physician, and that only further support the physician's conclusion that the Achilles rupture, occurring now 15 years after Achilles tendon lengthening, was spontaneous. Thus, the Board finds that the physician's inability to review this evidence was also not prejudicial to the Veteran. Turning to the merits of the appeal, although there is medical evidence in favor of the claim, the Board finds that the medical evidence against the claim is of greater probative value. See Hayes v. Brown, 5 Vet. App. 60 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190 (1992)). The positive medical opinions are based on the assumption that a compensated gait due to the injured leg led to problems in the other leg. However, in providing a negative medical opinion, the VHA physician disproved that assumption, citing to decades of personal experience and the medical literature on the issue. The Board notes that the review of the medical literature conducted by the October 2010 VA examiner, as noted in the December 2011 addendum, supports the VHA physician's conclusion. Thus, the Board finds that the weight of the probative medical evidence shows that the Veteran's left foot disorder is not causally related to the service-connected right foot disorder. Although not contended by the Veteran, the record indicates that a left foot disorder may have pre-existed service. Thus, consideration of the presumption of soundness is warranted. As noted above, no left foot disorder was noted at service entrance and thus the presumption of soundness attaches. However, the Board finds that clear and unmistakable evidence shows that the pes cavus found during ACDUTRA existed prior to service. The condition was found on x-ray within eight months after the Veteran's enlistment. More importantly, the VHA physician indicated that pes cavus is a developmental condition that would have been present prior to service. Next, although the pes cavus may have become symptomatic during ACDUTRA, the Board finds that clear and unmistakable evidence shows that the pes cavus was not aggravated by ACDUTRA. One week after discharge from ACDUTRA, x-rays of the left foot were normal and no diagnosis of a left foot disorder was made. The Veteran also did not complain of any left foot problems when treated for the right foot in September 1980. Most importantly, the VHA physician concluded that there is nothing in the record that shows that the Veteran had any change in the degree of pes cavus during ACDUTRA. Thus, the VHA physician essentially opined that the Veteran's pes cavus did not increase in severity during ACDUTRA. In conclusion, the evidence clearly and unmistakably shows that a left foot disorder pre-existed active service and was not aggravated by ACDUTRA. The Board acknowledges the Veteran's assertion that the compensated gait resulting from her service-connected right foot disorder led to her left foot disorder. The Board notes that the Veteran is competent to give evidence about observable symptoms such as pain. Layno v. Brown, 6 Vet. App. 465 (1994). The Board also notes that a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, however, the Veteran has dated the onset of symptoms to after separation from service, and the question of causation extends beyond an immediately observable cause-and-effect relationship and, as such, she is not competent to address etiology. As discussed above, the weight of the probative medical evidence does not relate the left foot disorder to service or the service-connected right foot disorder. In conclusion, service connection for a left foot disorder, to include as secondary to the service-connected right foot disorder, is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a left foot disorder, to include as secondary to the service-connected right foot disorder, is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs