Citation Nr: 0813406 Decision Date: 04/23/08 Archive Date: 05/01/08 DOCKET NO. 06-23 874 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for residuals of a right great toe fracture. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD A. Muhlfeld, Associate Counsel INTRODUCTION The veteran had active military service from April 1966 to March 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The veteran testified before the undersigned Veterans Law Judge at a hearing in March 2008. A transcript of that hearing is of record. The Board notes that this case was previously remanded in October 2007 in order to afford the veteran an opportunity for a videoconference hearing per his request. As this additional development has been completed, the Board finds that this case is once again properly before the Board. FINDING OF FACT Any residuals of a fracture of the right great toe are not related to military service. CONCLUSION OF LAW The veteran does not have residuals of fracture of the right great toe that are the result of disease or injury incurred in or aggravated by active military service; nor may arthritis of the right great toe be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). But see Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. Apr 05, 2006) (when VCAA notice follows the initial unfavorable AOJ decision, remand and subsequent RO actions may "essentially cure[] the error in the timing of notice"). The Board notes that the veteran was apprised of VA's duties to both notify and assist in correspondence dated in April 2005 and July 2007. (Although the complete notice required by the VCAA was not provided until after the RO adjudicated the appellant's claim, any timing errors have been cured in the process of the previous remand and RO subsequent actions. Id.) Specifically regarding VA's duty to notify, the notifications to the veteran apprised him of what the evidence must show to establish entitlement to service connection, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the veteran's behalf. The RO specifically requested that the veteran either identify or submit any evidence or information he had pertaining to his claim. The veteran was apprised of the criteria for assigning disability ratings and for award of an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Regarding VA's duty to assist, the RO obtained the veteran's service medical records (SMRs), service personnel records, and VA and private medical records. As to whether further action should have been undertaken by way of obtaining medical opinion on the question of service connection for residuals of fracture of the right great toe, the Board notes that such development is to be considered necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains: 1) competent evidence of diagnosed disability or symptoms of disability, 2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and 3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4). In this case, as will be described in more detail below, the record includes no showing by medical evidence of a right great toe disability until many years after military service. Additionally, there is no indication, except by way of unsupported allegation, that any right great toe disability may be associated with the veteran's military service. Consequently, given the standard of the regulation, the Board finds that VA did not have a duty to assist that was unmet. At his March 2008 Board hearing, the veteran stated that he injured both of his feet while unloading ammunition, when the door of a rail car unexpectedly came off its track and closed, pinning him between the wall of the train car and a pallet of ammunition. The veteran stated that he badly injured both feet, and a man named W.G., the driver of a truck on which the veteran was loading ammunition, put the veteran in the back of his truck and took him for treatment to a dispensary at a hospital in Landstuhl. The veteran stated that his feet and toes were "smashed," and he stated that he was placed on light duty for about two to three weeks. The veteran contends that since this in-service accident, he has experienced problems with his feet and toes, and noted that about 15 years ago, he had his foot operated on, and the doctor put in screws and plates in his right foot because arthritis had set in. The record contains two statements from W.G., dated in April 2006 and June 2007, stating that he was present in Weilerbach, Germany in 1967 when the veteran pinned his foot against the railcar door with a pallet and broke his big toe. W.G. noted that he took the veteran to Landstuhl Hospital to be treated. In the letter submitted in June 2007, W.G. added that he drove the veteran from the base in Miesau to a hospital in Landstuhl, and stated that he remembered the veteran being in a lot of pain in the car, and noted that it appeared as if he broke one of his feet, but the veteran returned to Miesau with W.G. because there was not much they could do, although he was put on light duty for a while. The record also contains statements from the veteran's wife dated in April 2006 and March 2007, stating her contention that the veteran damaged his right foot in the summer of 1967 during the six-day war, while loading ammunition in a rail car, and that he was taken to the hospital where it was discovered that his toe was broken. His wife reported that his feet bothered him for years until finally he got to the point where he could barely walk, and then he had a plate and steel screws put in his foot. The SMRs contain an entry related to the left foot dated in July 1967, which shows that the veteran dropped a gate on his left foot, and had pain in his toes and over the distal metatarsals, but noted that an x-ray was negative. This entry also stated that the injury occurred when a board fell on the veteran's foot, and noted the location of the injury as Miesau. However, the SMRs do not contain any references to complaints or treatment related to the right foot or toes, and the veteran's separation examination revealed a normal clinical evaluation for the feet. The file also contains records from the Sports Medicine Center dated from November 1999 through March 2000, including an October 1999 progress note by W.S., M.D. stating that the veteran had a many-year history of right foot pain that had progressed to the point where he was unable to ambulate at all without significant pain in the foot. Dr. S. noted that the veteran had been seen for this in the past and had x-rays done about five years earlier, which demonstrated complete obliteration of the joint space at the metatarsophalangeal (MPT) joint of the great toe. Dr. S. noted that the veteran underwent intra-articular injections that provided him with some temporary relief, and stated that over the last several years he had just put up with it but it had progressively become more painful. On examination, Dr. S. reported soft tissue swelling about the MTP joint of the great toe, and noted that range of motion was limited in dorsiflexion and plantar flexion with severe pain. Dr. S. noted that his treatment option included surgical intervention, and reported that the veteran wished to proceed with surgery. An Operation Report from the Methodist Hospital dated in November 1999, noted a preoperative diagnosis of severe hallux valgus of the right first metatarsophalangeal joint, and noted that the operation entailed a fusion of the right first metatarsophalangeal joint. A progress note dated in January 2000 shows that the veteran was seen for a follow up of the fusion of the right first metatarsophalageal joint, at which point the veteran reported that if he was up on his feet for long periods, he experienced some mild pain within the right great toe, and he complained of some mild swelling throughout this region. A progress note dated in March 2000 shows that occasionally the veteran experienced some minor discomfort, but overall he was doing well. On examination, Dr. S. noted no tenderness to palpation, and stated that x- rays showed that the hardware was intact, and the fusion site appeared solid. Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in- service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Caluza v. Brown, 7 Vet. App. 498 (1995). Further, it is not enough that an injury or disease occurred in service; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Additionally, certain chronic diseases, including arthritis, may be presumptively service connected if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service. 38 C.F.R. §§ 3.307(a)(3); 3.309(a) (2007). Here, there is evidence of a current disability involving the veteran's right great toe, specifically, residuals of a November 1999 operation where the veteran underwent a fusion of the right first metatarsophalangeal joint, which entailed placing hardware in his right foot. There is also evidence of a July 1967 in-service injury to the left foot which noted that the veteran dropped a "gate" on his left foot, and had pain in his toes, and over the distal metatarsals; however, an x-ray taken at the time of the incident was negative. This entry also stated that the injury occurred when a "board" fell on the veteran's left foot. Although there is medical evidence of an in-service injury involving the left foot, the SMRs do not document an injury to the right foot, and in fact, both feet were found to be normal at the time of discharge. The Board notes that the veteran argued that his being placed on light duty while in the military was evidence of the in-service injury to both feet; however, after reviewing the SMRs, the Board finds no indication that the veteran was placed on light duty. Even though there is no medical documentation of an in- service injury involving the right foot, the veteran submitted lay statements describing an injury that occurred in 1967 in Miesau, when an ammunition pallet fell on his feet, "smashing" his toes. Specifically, the veteran contends that he injured both his feet, not just the left foot as documented by the SMRs, and lay statements from W.G. noted that he was present at the time of the incident, and remembered the veteran being in a lot of pain, as if he had broken his foot, and stated that he drove the veteran to a hospital in Landstuhl to be treated. In this regard, the Board observes that the veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). However, a review of his SMRs reveals no complaints of or treatment related to his right foot or right toes at any time during his period of active duty. Further, the earliest evidence of a right toe disability is not until 1999, approximately 30 years after separation from service, when progress notes from the Sports Medicine Center show an operation for severe hallux valgus of the right first metatarsophalangeal. The Board finds that this lengthy period without treatment is evidence that there has not been a continuity of symptomatology, and it weighs heavily against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (it is proper to consider the veteran's entire medical history, including a lengthy period of absence of complaints); see also Forshey v. Principi, 284 F.3d 1335 (Fed. Cir. 2002) ("negative evidence" could be considered in weighing the evidence). Given the separation examination, and the absence of problems for so many years after service, the Board finds that any injury the veteran may have sustained to his right great toe in service did not result in continued problems after service and is unrelated to the problems he later experienced many years later. Regarding presumptive service connection, because the first post-service disability involving the right great toe was not documented until 1999, there is no indication that arthritis (which, the Board notes, there is no indication in the record that arthritis was even specifically diagnosed), manifested itself to a degree of 10 percent or more within one year of leaving qualifying military service. 38 C.F.R. §§ 3.307(a)(3); 3.309(a) (2007). In summary, after weighing all the evidence of record, including the veteran's own statements, and those submitted by W.G. and the veteran's wife, the Board finds that service connection for residuals of a right great toe fracture is not warranted. The veteran nevertheless contends that his current right great toe disability originated during his period of active military service. However, while the veteran is competent as a layperson to describe the symptoms he experiences, he is not competent to provide a medical opinion as to their etiology. Espiritu v. Derwinski, 2 Vet. App. 492 (1992); 38 C.F.R. § 3.159(a)(1)). Consequently, the veteran's own assertions as to the etiology of his current disability have no probative value. The Board has considered the benefit-of-the-doubt doctrine, but finds that the record does not provide even an approximate balance of negative and positive evidence on the merits. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, on the basis of the above analysis, and after consideration of all the evidence, the Board finds that the preponderance of the evidence is against this service connection claim. Any current residuals of a right great toe fracture are not traceable to an injury incurred in or aggravated during active military service. ORDER Entitlement to service connection for residuals of fracture of the right great toe is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs