Citation Nr: 0810276 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 04-38 934 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for a left foot disorder, claimed as left heel plantar fasciitis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The veteran served on active duty from July 1982 to July 2002. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from a February 2004 rating decision, by the Seattle, Washington, Regional Office (RO), which denied the veteran's claim of entitlement to service connection for a left foot disorder, claimed as left heel plantar fasciitis. The veteran perfected a timely appeal to that decision. FINDINGS OF FACT 1. A left foot disorder, to include left heel plantar fasciitis, was not manifest during service and is not attributable to service. 2. A left foot disorder, to include left heel plantar fasciitis, is unrelated to service-connected disease or injury. CONCLUSIONS OF LAW 1. A left foot disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2007). 2. A left foot disorder is not proximately due to or the result of a service-connected disease or injury. 38 U.S.C.A. §§ 5103, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.310 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VCAA. The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide; and to request that the claimant provide any evidence in the claimant's possession that pertains to the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The U.S. Court of Appeals for Veterans Claims has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in an SOC or Supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Court of Appeals for the Federal Circuit recently held that any error in a VCAA notice should be presumed prejudicial. VA bears the burden of rebutting the presumption, by showing that the essential fairness of the adjudication has not been affected because, for example, actual knowledge by the claimant cured the notice defect, a reasonable person would have understood what was needed, or the benefits sought cannot be granted as a matter of law. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Here, the claimant has not demonstrated any error in VCAA notice, and therefore the presumption of prejudicial error as to such notice does not arise in this case. Id. In this case, VA satisfied its duty to notify by means of a letter dated in November 2003 from the RO to the veteran which was issued prior to the RO decision in February 2004. Another letter was issued in October 2006. Those letters informed the veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The veteran was also asked to submit evidence and/or information in his possession to the RO. The Board finds that the content of the above-noted letter provided to the veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify and assist. He was provided an opportunity at that time to submit additional evidence. In addition, the July 2004 SOC, the October 2007 SSOC, and the November 2007 SSOC provided the veteran with an additional 60 days to submit additional evidence. Thus, the Board finds that the purpose behind the notice requirement has been satisfied because the veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. It also appears that all obtainable evidence identified by the veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. It is therefore the Board's conclusion that the veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notice. Despite initial inadequate notice provided to the veteran on the disability rating or effective date elements of his claim, the Board finds no prejudice to the veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced thereby). ). In addition, to whatever extent the recent decision of the Court in Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006), requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date, the Board finds no prejudice to the veteran in proceeding with the present decision, since the veteran was informed of the provisions of Dingess in October 2006. Accordingly, we find that VA has satisfied its duty to assist the veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. Therefore, no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the veteran. The Court of Appeals for Veterans Claims has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Given the ample communications regarding the evidence necessary to establish service connection for a left foot disorder, given that he has been provided all the criteria necessary for establishing service connection, and considering that the veteran is represented by a highly qualified veterans service organization, we find that any notice deficiencies are moot. See Conway v. Principi, 353 F.3d 1369, 1374 (2004), hold that the Court of Appeals for Veterans Claims must "take due account of the rule of prejudicial error." II. Factual background. The service medical records show that the veteran was treated for a left leg laceration in April 1996 and April 1997. He was also treated for right ankle sprain. However, the records do not reflect any complaints, findings or diagnosis of a left foot/heel disorder, to include plantar fasciitis. The veteran's claim for service connection for left heel pain (plantar fasciitis) (VA Form 21-4138) was received in June 2003. Submitted in support of the veteran's claim were VA treatment records, dated from April to July 2003, which were negative for diagnosis of or treatment for a left foot disorder. Treatment reports from the Elmendorf AFB show that the veteran was seen on May 8, 2003 with complaints of left heel pain for the past 2 to 3 days. The assessment was plantar fasciitis. III. Legal Analysis. Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Service connection may be also 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) (2007). The United States Court of Appeals for Veterans Claims (Court) has held that, in order to prevail on the issue of service connection, there must be medical evidence of a (1) 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 present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2007). Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. Prior to October 10, 2006, the provisions of 38 C.F.R. § 3.310 directed, in pertinent part, that: a) General. Except as provided in § 3.300(c), disability which is proximately due to or the result of a service- connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. The Court clarified that service connection shall be granted on a secondary basis under the provisions of 38 C.F.R. § 3.310(a) where it is demonstrated that a service-connected disorder has aggravated a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). The term, "disability", as contemplated by the VA regulations, means "impairment in earning capacity resulting from . . . [all types of] diseases or injuries [encountered as a result of or incident to military service] and their residual conditions. . . ." 38 C.F.R. § 4.1 (1990). . . .Such a definition of "disability" follows the overall statutory and regulatory purpose of the veterans' compensation law. This purpose is reflected in the ratings system, which rates different mental and physical maladies based upon diminished earning capacity. . . . Hence, although "disability" is not defined by [§ 1153] for compensation purposes, the regulatory definition adopted [in 38 C.F.R. § 4.1] is a reasonable one. The Court holds that the term "disability" as used in § 1110 refers to impairment of earning capacity, and that such definition mandates that any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, shall be compensated. As stated by the Secretary in his memorandum in response to the Court's November 9, 1994, order: To the extent [that] such additional disability is literally a result of "personal injury suffered or disease contracted in line of duty," under 38 U.S.C. § 1110, service connection should be established. In such a case, the additional "disability" results from the original service-connected condition. Thus, pursuant to § 1110 and § 3.310(a), when aggravation of a veteran's non- service-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Cf. 38 C.F.R. § 3.322 (1994) (in compensating for aggravation of a preservice disability by active service, it "is necessary to deduct from the present evaluation the degree, if ascertainable, of the disability existing at the time of entrance into active service, in terms of the rating schedule . . ."). Allen v. Brown, 7 Vet. App. 439 (1995). On October 10, 2006, the Secretary of the VA amended the provisions of 38 C.F.R. § 3.310. The amended regulation, in pertinent part, states that: a) General. Except as provided in § 3.300(c), disability which is proximately due to or the result of a service- connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. (b) Aggravation of nonservice-connected disabilities. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service- connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice- connected disease or injury was aggravated by a service- connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR Part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. See 38 C.F.R. § 3.310(b) (effective October 10, 2006). This case predates the regulatory change. Regardless, based upon the facts in this case, neither version is more favorable and the regulatory change does not impact the outcome of the appeal. As to secondary service connection or compensation, there must be (1) evidence of a current disability; (2) evidence of a service-connected disease or injury; and (3) medical evidence establishing a nexus between the service-connected disability and the claimed disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In a claim for service connection, the ultimate credibility or weight to be accorded evidence must be determined as a question of fact. The Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim: the appellant prevails in either event. However, if the weight of the evidence is against the veteran's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The veteran has also argued that his left foot disorder was caused by his service-connected bilateral knee disorder or is due to service. In this regard, the record reflects that service connection was established for degenerative joint disease of the right and left knee in February 2004. After careful review of the evidentiary record, the Board finds the veteran's left heel plantar fasciitis was not present in service and is not shown to be related to service nor to be proximately due to or the result of a service- connected disease or injury. In this regard, the Board notes that the service medical records are negative for any findings of a left foot disorder. In addition, his post- service medical records do not show any diagnosis of a left foot disorder until May 2003. At that time, he reported an onset 2 to 3 days prior to being seen, rather than an inservice onset. Moreover, no medical professional has indicated that the veteran's current left foot disorder, diagnosed as plantar fasciitis, is related to service or to his service-connected bilateral knee disorder. The Board finds that the only evidence in favor of the veteran's claim is his own assertion that his left foot disorder is related to his service-connected degenerative joint disease in the knees. His opinion as to etiology, however, is insufficient to establish a relationship. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992) (Laypersons are not competent to offer medical opinions). At this time, there is no competent evidence linking any degree of disability involving the left foot, to include plantar fasciitis, to a service-connected disease or injury. Furthermore, there is no reliable evidence of foot disability during service or relating such to service. Far more probative is the veteran's report for treatment purposes that there was a post-service onset. Under these circumstances, the Board must conclude that the claim for service connection for a left foot disorder, claimed as left heel plantar fasciitis, on either a direct or secondary basis, must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). ORDER Service connection for a left foot disorder, claimed as left heel plantar fasciitis, to include as due to the service connected bilateral knee disorder, is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs