Citation Nr: 0813553 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 06-17 409 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to service connection for a right foot disorder. REPRESENTATION Appellant represented by: Haven N. Shoemaker, Jr., attorney ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The veteran served on active duty from May 1951 to May 1953. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio. The veteran's claim is currently under the jurisdiction of the Baltimore, Maryland VA Regional Office (RO). The Board notes that VA medical records were obtained subsequent to the issuance of the May 2006 statement of the case. However, none of these medical records are pertinent to the veteran's right foot. Since these records are not pertinent to the veteran's claim, remand of this case to the RO for issuance of a supplemental statement of the case is not indicated. This case has been advanced on the Board's docket under 38 U.S.C.A. § 7107 (West 2002) and 38 C.F.R. § 20.900(c) (2007). FINDING OF FACT The veteran does not have a disability of the right foot that was aggravated by service or caused by an injury in service. CONCLUSION OF LAW The veteran does not have a right foot disorder that was either incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Legal criteria Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 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). History and analysis The veteran submitted his claim for a right foot condition in September 2003. The veteran stated that his right foot condition existed prior to his military service and that the military service made his right foot condition worse. The veteran asserted that he never should have been sent into service with his condition. Also on his application he indicated that his right foot disability began in 1951 and that he had not received any medical treatment for his right foot. In January 2004, the veteran submitted a letter stating that he jumped off the tailgate of a truck and twisted his ankle during service. With the letter he included a photograph showing two soldiers standing in front of a jeep. The veteran has also submitted a statement from a private physician. The veteran reported to the physician that he injured his ankle while serving in Germany in late 1952. He stated that his right ankle had been sprained and it was wrapped in an Ace wrap, and several months later he was discharged from service. The physician diagnosed the veteran as having severe acquired planovalgus deformity of the right foot. The physician stated that the right foot disability may well be related to the injury 50 years previously. The Board notes that the veteran's service medical records are unavailable. There is a heightened obligation to explain findings and to carefully consider the benefit of the doubt rule in cases such as this. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The case law does not, however, lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). Further, there is no adverse presumption of service connection as a result of the loss of these records. Cromer v. Nicholson, 455 F.3d 1346 (Fed. Cir. 2006). There is, however, an expanded duty to assist the veteran in obtaining evidence from alternate or collateral sources. Id. Attempts were made to obtain the veteran's service medical records, including alternative medical records (See Request for Information document printed in September 2004), but all attempts were unsuccessful. There are no post service medical records discussing the veteran's right foot other than the February 2004 private physician's statement. The Board does not find the February 2004 private physician statement to be probative to the veteran's claim. In this case the physician did not actually opine that the veteran's right foot disability was related to service. The physician merely said that the veteran's right food disorder "may well be related" to an injury in service. This statement is speculative at best. The Court of Appeals for Veterans Claims (Court) has held that medical opinions that are speculative, general, or inconclusive in nature cannot support a claim. See Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996). Furthermore, the Board notes that the private physician based his statement on the history provided by the veteran, and the Board does not find the veteran's history to be credible. As noted above, in September 1993, the veteran stated that his right foot disability existed prior to service and the veteran reported that he had not received any treatment for his right foot. The Board finds that these statements contradict the veteran's later statements to the VA and the private physician that he injured his right ankle during service and received treatment for such in service. A medical opinion based on an inaccurate premise has no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Since the February 2004 private physician's statement is both speculative and is based on a history provided by the veteran that the Board does not find to be credible, the Board finds that the physician's statement carries no probative value with respect to the veteran's claim. In this case there is no medical evidence showing that the veteran had complaints or treatment for right foot disability for many years after discharge from service. While the veteran currently denies that he had a pre-existing right foot disability that was aggravated by service, the Board has considered whether the veteran is entitled to service connection for his current right foot disability based on aggravation of a pre-exiting disability. However, there is no medical evidence indicating that the veteran had a right foot disorder prior to service and that such was aggravated by the veteran's service. Consequently, the veteran is not entitled to service connection for a right foot disability based on aggravation of a pre-exiting disability. Since the preponderance of the probative evidence indicates that the veteran's current right foot disorder was not incurred in or aggravated by service, service connection for a right foot disorder is not warranted. Duty to notify and assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 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 or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper 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 or her possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). 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); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The timing notification requirements listed in 38 C.F.R. § 3.159 should include all downstream issues of the claim. (i.e., the initial- disability-rating and effective-date elements of a service- connection claim). See Dingess v. Nicholson, 19 Vet. App. 473 (2006). In October 2003, prior to adjudication of the veteran's claim by the RO, the RO sent the veteran the required notice. The letter specifically informed him of the type of evidence needed to support the claim, who was responsible for obtaining relevant evidence, where to send the evidence, and what he should do if he had questions or needed assistance. He was, in essence, told to submit all pertinent evidence he had in his possession pertaining to the claim. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). A March 2006 letter informed the veteran of the type of evidence necessary to establish disability ratings and effective dates in compliance with Dingess, supra. The Board finds that any timing error with regard to disability ratings and effective dates was not prejudicial to the veteran because the claim for service connection is being denied. Therefore, issues concerning the degree of disability or the effective date of the award do not arise here. With respect to VA's duty to assist the appellant, the RO made several attempts to obtain the veteran's service medical records and informed the veteran of the unavailability of those records. Some of the veteran's service personnel records were obtained and VA medical records were obtained. The veteran submitted private medical evidence in support of his claim. The veteran has been accorded ample opportunity to present evidence and argument in support of the appeal and he has done so. In sum, the Board is satisfied that the originating agency properly processed the veteran's claim after providing the required notice and that any procedural errors in the development and consideration of the claim by the originating agency were insignificant and non-prejudicial to the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). ORDER Service connection for a right foot disorder is denied. ____________________________________________ MARY GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs