Citation Nr: 0811127 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 03 20-285A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a right foot disorder. 2. Entitlement to service connection for a right foot disorder secondary to the service connected residuals of a left foot stress fracture. 3. Entitlement to service connection for a low back disorder secondary to the service connected residuals of a left foot stress fracture. 4. Entitlement to service connection for diabetes mellitus secondary to the service connected residuals of a left foot stress fracture. 5. Entitlement to a rating in excess of 10 percent for residuals of a left foot stress fracture. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD William J. Jefferson III, Counsel INTRODUCTION The veteran had active service from April to October 1995. This matter is before the Board of Veterans' Appeals (Board) on appeal from June 2003 and August 2004 rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). FINDINGS OF FACT 1. Service connection for a right foot disability was denied by the Board of Veterans' Appeals in July 1997. 2. In an August 1999 rating decision, a claim of service connection for a right foot disability was not reopened. 3. The evidence received since the August 1999 rating decision is cumulative and redundant and does not raise a reasonable possibility of substantiating the veteran's claim of service connection for a right foot disability on a direct basis. 4. Right foot, low back, and diabetes mellitus disabilities are not related to a service connected disability. 5. The residuals of a left foot stress fracture more nearly approximate moderately severe foot impairment, but no more. CONCLUSIONS OF LAW 1. The August 1999 rating decision which declined to reopen the claim of entitlement to service connection for a right foot disability is final. 38 U.S.C.A. §§ 5108, 7104 (West 2002). 2. Evidence received since the final August 1999 rating decision which denied entitlement to service connection for a right foot disability, is not new and material to reopen the claim. 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. § 3.156 (2007). 3. Right foot, low back, and diabetes mellitus disabilities are not proximately due to or the result of, or aggravated by a service-connected disease or injury. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.310 (2007). 4. The criteria for a 20 percent evaluation for residuals of a left foot stress fracture are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5284 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Whether New and Material Evidence has been Received to Reopen the Claim of Entitlement to Service Connection for a Right Foot Disorder Service connection for a bilateral foot disability was initially denied by the RO in a December 1995 rating decision. The veteran appealed that decision. In August 1996, the RO granted service connection for a stress fracture of the left foot, and continued the denial of service connection for a right foot disorder. In a decision by the Board of Veterans Appeals dated in July 1997, service connection for a right foot disorder was denied. It was determined by the Board that there was no evidence of a right foot disorder that was related to service. The veteran attempted to reopen his claim in October 1998. A rating decision dated in August 1999 declined to reopen the veteran's claim of service connection for a right foot disorder, in that new and material evidence had not been received. The veteran was notified of the decision in August 1999. Pursuant to 38 U.S.C.A. § 7105(c), a final decision by the RO may not thereafter be reopened and allowed, and the August 1999 rating decision is considered the last final disallowance of the veteran's claim. Applicable law provides that a claim which is the subject of a prior final decision may nevertheless be reopened if new and material evidence is presented or secured. 38 U.S.C.A. § 5108. New evidence means existing evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The veteran filed his application to reopen his claim in December 2001. VA clinical records dated from 1996 through 2002, some previously considered, show that the veteran complained of bilateral foot pain, and that he received treatment for right foot pes planus, and hammertoes. A medical history of stress fractures of the feet was reported. It was also reported that the veteran had an arthroplasty for treatment of right toe disorders in February 2003. A VA X-ray of the right foot in February 1997 was normal with no evidence of a stress fracture. Questionable arthritic changes in the left, rather than right foot, were reported in December 2005. VA clinical records through late 2006 reveal ongoing treatment for complaints of bilateral foot pain, left foot problems, and a reported history of bilateral stress fractures. Analysis Since the August 1998 final denial of service connection for a right foot disorder, additional evidence has been received. A portion of the additional evidence submitted has been previously considered, is not pertinent, and must be considered redundant and cumulative. Most of the additional evidence that has been received is new in that it has not been previously considered by VA decision makers. This evidence primarily consists of VA clinical records that show the veteran continues to receive treatment for right foot pain and right foot problems such as hammertoes. It is imperative to note that right foot pain complaints and hammertoes, and right foot problems were considered by VA in the past. In addition it should also be noted that a reported history of bilateral stress fractures, without any clinical confirmation has also been previously considered. Further, evidence that is simply information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute competent medical evidence to establish entitlement to service connection. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Upon careful review of the record, the Board finds no new and material evidence to reopen the veteran's claims of service connection for a right foot disorder. The records do not provide any current medical evidence of a stress fracture of the right foot, only by history. There is no evidence that shows a right foot disorder is related to service. In that respect, the records do not bear directly and substantially on the matters at issue, and do not raise a reasonable possibility of substantiating the claim. Accordingly, the Board finds that there is no new and material evidence within the meaning of VA regulation. 38 C.F.R. § 3.156(a). Therefore, the claim of service connection for a right foot disorder is not reopened. Service Connection for a Right Foot disorder Secondary to the Service Connected Residuals of a Left Foot Stress Fracture Preliminarily, it is noted that the issue above and discussed herein is limited to service connection for a right foot disorder on a secondary service connection basis in that the specific secondary issue has not been previously considered. Service connection for a right foot disorder on a direct basis is contemplated in the veteran's claim to reopen that issue which has been denied. The veteran asserts that he has a right foot disability that is the result of and etiologically related to his service connected left foot disorder. Secondary service connection shall be awarded when a disability "is proximately due to or the result of a service- connected disease or injury." 38 C.F.R. § 3.310(a). Also, 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. 38 C.F.R. § 3.310(b). VA clinical records from the mid-1990's show the veteran's complaints of bilateral foot pain with a history of injury to the feet. Initial diagnoses indicated bilateral stress fractures of the feet, yet subsequent VA radiological and clinical findings were limited to a stress fracture of the left foot. Subsequent VA records and radiological findings revealed hammer toe, narrowing of the posterior aspect of the tibio-talas joint, a talar beak, pes planus, and painful calluses. The veteran also received diabetic foot care. A VA medical examination was performed in September 2002. The examiner reported review of the claims folder and opined that there was no evidence of a right foot disorder. It was stated that there was absolutely no relationship between a claimed right foot disorder and any compensable left foot condition. A VA X-ray of the feet in April 2006 revealed no abnormality of the feet bilaterally. In a July 2006 statement a VA nurse practitioner stated that the veteran had had bilateral foot pain, an arthroplasty of the 2nd, 4th and 5th right toes in 2003, and radiographic changes of the feet. by a VA medical examination of the feet. Analysis In order to establish service connection for a claimed disability on a secondary basis, there must be (1) medical evidence of a current disability; (2) a service-connected disability; and (3) medical evidence of a nexus between the service-connected disease or injury and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The veteran's left foot stress fracture is a service connected disability. While there is no medical evidence to support a right foot stress fracture, podiatry records from past and currently do show that the veteran has received treatment for right foot problems to include calluses, hammer toes, and apparently pes planus. It must be concluded that there is a service-connected disability (residuals of a left foot stress fracture), and that the veteran has right foot disability, albeit other than a right foot stress fracture. As a result, the veteran's claim meets the first and second necessary criteria for a secondary service connection claim. The third necessary criteria for a claim based on secondary service connection is a medical nexus. It is imperative to note that the record is absolutely absent for any medical evidence of an etiological relationship or nexus between the veteran's current right foot disability and a service connected disability, to include aggravation of a non-service connected disability be a service connected disorder. It is particularly noteworthy that in the recent past, a VA clinician has specifically opined on the matter, and concluded that there is absolutely no relationship between a claimed right foot disorder and the veteran's service connected left foot disability. The Board is aware that the veteran has offered lay testimony and he has asserted that there is an etiological relationship between his service connected left foot and his right foot disorders. However, where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). There is no competent medical evidence to support the veteran's assertions. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The weight of the evidence is against the veteran's claim. A right foot disability is not proximately due to, the result of, or aggravated by a service connected disability. Service connection for a right foot disability secondary to the service connected left foot stress fracture is not warranted. Service Connection for a Low Back Disorder Secondary to the Service Connected Residuals of a Left Foot Stress Fracture The veteran contends that he has a low back disorder that is caused by his service connected left foot stress fracture. VA EMG and nerve conduction findings from December 1996 show that the veteran received treatment for complaints of paresthesia and pain in the feet. A history of low back pain was reported. It was concluded by a clinician that the medical findings were compatible with chronic left L5, S1 radiculopathy. Private clinical records in January 1997 show the veteran received treatment for acute lumbar sprain following a lifting injury at work. A lumbar X-ray was normal. VA clinical records in May and July 2002 report a history of low back pain since 1996, a back injury at work, and radiating back pain. X-ray evidence of L5-S1 disc space protrusion and S1 nerve root involvement was reported. The diagnosis was low back pain and right sciatica with disc compressing the right S-1 nerve root. At a September 2002 VA medical examination the examiner reported review of the veteran's claims folder had occurred. It was opined that the veteran's low back disorder had absolutely no relationship with any compensable left foot condition. Analysis Preliminarily, it must be noted that the veteran has not asserted or argued that his low back disability was incurred in or aggravated during his period of military service, which is a claim of service connection on a direct basis. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2007). The Board has reviewed the entire record and there is no medical evidence of a low back disability during the veteran's military service or evidence that shows his back disability is related to service. With respect to the veteran's claim of service connection for a low back disability on a secondary basis, the record confirms that he has a service connected left foot stress fracture disability. In addition, there is medical evidence of current lumbar spine disability, right sciatica associated with disc compressing the right S1 nerve root. It must be concluded that the first two necessary criteria of secondary service connection claim have been met. Wallin, supra. With respect to a medical nexus or etiological relationship for secondary service connection, it is imperative to note that the record is entirely absent for any competent medical evidence of a medical nexus between the veteran's current low back or lumbar spine disability and his service connected left foot stress fracture disability. It is imperative to note that the medical evidence shows that the veteran sustained a lifting injury to his back in January 1997, with subsequent symptoms which contradict assertions for a back disability due to the service connected left foot stress fracture. Moreover, and most persuasively, the evidence includes a statement from a VA clinician who has had the opportunity to review the veteran's claims folder, and has specifically opined that there is no relationship between the veteran's claimed low back disorder and his service connected left foot stress fracture. The Board is well aware of the veteran's assertions and his testimony on the matter regarding an etiological relationship between his low back disability and his service connected left foot disability. However, the veteran's assertions regarding any causal relationship are not considered competent. Espiritu, supra. Further, there is absolutely no medical evidence in support of his assertions and the pertinent testimony he has offered. The weight of the evidence is against the veteran's claim. Gilbert, supra. A low back disability is not shown to be proximately due to the result of or aggravated by a service connected disability. Service connection for a low back disability secondary to the service connected left foot stress fracture is not warranted. Entitlement to Service Connection for Diabetes Mellitus Secondary to the Service Connected Residuals of a left Foot Stress Fracture VA clinical records dated in February and March 2003show the veteran received insulin and that he was declared a new onset type II diabetic. Subsequent VA clinical records through 2007 reveal ongoing follow-up treatment for diabetes, including diabetic foot care. Analysis It has not been asserted or argued that the veteran's diabetes mellitus was incurred in or aggravated during his period of military service, or diabetes mellitus that it is shown within one year of his period of military service, for direct and presumptive service connection. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309 (2007). The Board has reviewed the entire record and there is no medical evidence of diabetes mellitus disability during the veteran's military service or within one year after service, nor is there evidence that shows his diabetes mellitus is related to service, to warrant service connection on a direct or presumptive basis. The veteran has a service connected disability, namely a left foot stress fracture, and there is current medical evidence of diabetes mellitus. In this regard, two of the three necessary criteria to establish a claim of secondary service connection have been met. Wallin, supra. With respect to a medical nexus or etiological relationship, review of the record shows that it is entirely absent for a medical evidence of a nexus or etiological relationship of any kind between the veteran's currently shown diabetes mellitus and his service connected left foot stress fracture. The veteran's assertions and testimony on the matter regarding an etiological relationship between diabetes mellitus and his service connected left foot disability is not considered competent evidence. Espiritu, supra. There is no medical evidence in support of his assertions. The veteran's diabetes mellitus is not proximately due to the result of or aggravated by a service connected disability. The weight f the evidence is against the veteran's claim. Gilbert, supra. Service connection for diabetes mellitus secondary to the service connected left foot stress fracture is not warranted. A Rating in Excess of 10 Percent for Residuals of a Left Foot Stress Fracture. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § Part 4. The veteran's service connected residuals of a left foot stress fracture has been evaluated by the RO as 10 percent disabling, and is rated by analogy, under 38 C.F.R. § 4.71a, Diagnostic Code 5284, which rates impairment resulting from other foot injuries. According to this diagnostic code, evidence of moderate residuals of a foot injury warrants the assignment of a 10 percent disability rating. The next higher evaluation of 20 percent requires evidence of moderately severe residuals of a foot injury. Severe foot injuries warrant a 30 percent evaluation. Where service connection already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA podiatry records from the recent past show the veteran complained of left foot pain, there was tenderness between the toes, callus formation, and alteration in weight bearing. In July 2006 a VA clinician reported that the veteran continued with feet pain and that he had not had any relief despite surgeries, medication, and shoe inserts. It was reported that the veteran's pain had not improved but in fact had worsened. In November 2006, it was reported that the veteran had difficulty walking. Severe pes planovalgus was diagnosed. A VA medical examination of the left foot was performed in March 2007. The veteran reported achiness in the left foot. It was reported that he had a modified job working security. The job was modified so that he could walk. The physical examination revealed objective evidence of left foot pain over the metatarsal heads. There were multiple callosities. Tenderness was reported over the Achilles tendon, and there was mild abnormal weight bearing. Unusual shoe wear was reported. The diagnosis was stress fracture. The examiner indicated that there was no significant history of flares, the veteran had a constant achy pain every single day, and that his activities of daily living were unimpaired. Analysis The clinical findings show that the veteran has significant pathology of the left foot, although not all specifically associated with his service-connected residuals of a stress fracture of the left foot. Be that as it may, the medical record consistently shows the veteran's complaints of left foot pain. At the recent VA medical examination, specifically for evaluation of the veteran's service connected left foot disability, it was indicated in the examiner's diagnostic evaluation that there was objective evidence of left foot pain. It was also reported that the left foot pain, described as an achy pain, existed everyday. Based on the overall clinical data of record, with consideration given to the objective findings, and veteran's subjective complaints, notwithstanding any other left foot problems, the Board concludes that the veteran's residuals of a left foot stress fracture more nearly approximates the criteria necessary for a moderately severe foot injury, and a 20 percent disability evaluation is therefore warranted. A review of the medical evidence does not reflect that on its own, the veteran's residuals of a left foot stress fracture approximate the criteria for severe disability at this time. The VA examiner noted that the veteran's activities of daily living were unimpaired and that he was about to walk for 30minutes at a stretch. It must be noted that the service connected residuals of a stress fracture of the left foot may contemplate a disability of joints of the feet under Diagnostic Code 5284, foot injuries. Since the veteran's disability probably contemplates the joints, the Board considers that this a situation in which the application of 38 C.F.R. §§ 4.40, 4.45 may be warranted in order to evaluate the existence of any functional loss due to pain, or any weakened movement, excess fatigability, incoordination, or pain on movement of the veteran's joints when the rating code under which the veteran is rated does not contemplate these factors. See DeLuca v. Brown, 8 Vet. App. A review of the medical evidence does not reflect objective evidence of pain, fatigue, weakness or incoordination so as to more nearly approximate the criteria for severe disability at this time. While the left foot pain may potentially compromise his endurance to some degree, the Board has factored in such additional functional loss in assigning a 20 percent rating. Accordingly, a higher rating pursuant to 38 C.F.R. §§ 4.40, 4.45 is not available. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In the present case, the weight of the evidence is in favor of the veteran's claim, and a 20 percent disability evaluation for residuals of a left foot stress fracture, but no more, is warranted. Duties to Notify and Assist When a complete or substantially complete application for benefits is filed, VA must notify the veteran of (1) what information and evidence is needed to substantiate the claim; (2) which information the veteran is expected to provide to VA; and (3) which information VA will attempt to obtain on the veteran's behalf. VA must also ask the veteran to submit to VA any pertinent evidence in his possession. 38 C.F.R. § 3.159(b)(1) (2007). In February 2002, May 2004, and February 2007, VA sent letters notifying the veteran of the evidence necessary to establish his claims. The veteran has been informed of what he was expected to provide and what VA would obtain on his behalf, and asked him to provide VA with any evidence he may have pertaining to his appeal. The aforementioned letters satisfied VA's duty to notify. Any defect with respect to the timing of the notice requirement was harmless error. The veteran was furnished content-complying notice and proper subsequent VA process, thus curing any error in the timing. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Additionally, in Kent v. Nicholson, 20 Vet. App. 1, 10 (2006), the Court held that VA must notify a claimant of the evidence and information that is necessary to reopen the claim and VA must notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit sought by the claimant. In the present case, the veteran has been notified of the evidence and information necessary to reopen the claim and to establish entitlement to the underlying claim for benefit sought in the February 2002 letter. Additionally, in the SOC issued June 2003, the veteran was informed that the evidence failed to show that his right foot condition was related to service and the letter of February 2007 reiterated this information. Consequently, the Board finds that adequate notice has been provided, as the appellant was informed about what evidence is necessary to substantiate the element(s) required to establish service connection that were found insufficient in the previous denial. VA also has a duty to assist the veteran in substantiating his claims. The duty to assist contemplates that VA will help the veteran obtain relevant records, whether or not the records are in federal custody. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c), (d). Here, the claim file contains the veteran's service medical records, VA records, as well as his statements and testimony. VA has attempted to obtain all records identified by the veteran. The veteran has not notified VA of any additional available relevant records with regard to his claims. The veteran has also been afforded VA medical examinations to evaluate his claims and for evaluation of his service connected left foot stress fracture residuals. As such, VA met its duty to assist. In light of the denial of the veteran's claim, no initial disability rating or effective date will be assigned, so there can be no possibility of any prejudice to the veteran under the holding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Because VA's duties to notify and assist have been met, there is no prejudice to the veteran in adjudicating this appeal. ORDER New and material evidence has not been received to reopen the claim of entitlement to service connection for a right foot disorder, the claim is denied. Service connection for a right foot disorder secondary to the service connected residuals of a left foot stress fracture is denied. Service connection for a low back disorder secondary to the service connected residuals of a left foot stress fracture is denied. Service connection for diabetes mellitus secondary to the service connected residuals of a left foot stress fracture is denied. A 20 percent rating for residuals of a left foot stress fracture is granted, subject to the regulations governing the payment of VA monetary benefits. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs