Citation Nr: 0813859 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 04-41 725 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon THE ISSUE Entitlement to service connection for a bilateral foot disability. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD Amy R. Grasman, Associate Counsel INTRODUCTION The veteran served on active duty from September 1967 to April 1970. This appeal comes before the Board of Veterans' Appeals (Board) from a March 2002 RO decision. A hearing was scheduled at the RO in January 2007. The veteran failed to appear for this hearing. The veteran did not demonstrate good cause for his failure to appear for the hearing and did not indicate a desire for another hearing, as such, the Board will continue with appellate review. This appeal was remanded in April 2007 by the Board for additional development. FINDINGS OF FACT 1. The veteran has been notified of the evidence necessary to substantiate his claim, and all relevant evidence necessary for an equitable disposition of this appeal has been obtained. 2. The competent medical evidence does not show that bilateral metatarsalgia incurred in service or is otherwise related to service. CONCLUSION OF LAW A bilateral foot disability was not incurred in service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a 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, 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); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the VCAA duty to notify was satisfied by way of a letter sent to the appellant in July 2001 that fully addressed all four notice elements and was sent prior to the initial AOJ decision in this matter. Another letter was sent in April 2006. The letters informed the appellant of what evidence was required to substantiate the claim and of the appellant's and VA's respective duties for obtaining evidence. The appellant was also asked to submit evidence and/or information in his possession to the AOJ. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, although the notice was not provided until March 2006 regarding the rating criteria or effective date provisions that are pertinent to the appellant's claim, such error was harmless given that service connection is being denied, and hence no rating or effective date will be assigned with respect to this claimed condition. VA also has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained service medical records, DD Form 214, private medical records, and VA medical records. The appellant was afforded VA medical examinations in June 2006 and November 2007. Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. 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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Furthermore, the Board further finds that the RO complied with its April 2007 Remand. Stegall v. West, 11 Vet. App. 268 (1998). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). To establish direct service connection for a claimed disorder, there must be (1) medical evidence of current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Service connection may 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). The veteran claims service connection for a bilateral foot disability. In November 2007, the veteran was diagnosed with bilateral metatarsalgia. There is also evidence that the veteran received treatment in service for bilateral foot pain. The veteran did not report feet problems prior to service and in June 1967 his feet were clinically evaluated as normal in the entrance examination. In October 1967, the veteran was treated for aching toes. In November 1967, the veteran was treated for burning in his left heel. An x-ray in November 1967 of the left heel showed no significant abnormality. In October 1968, the veteran sought treatment for aching feet, however the physical exam was negative and the examiner concluded that there was no disease. The veteran reported that he did not have foot trouble in the separation examination in April 1970 and his feet were clinically evaluated as normal. Despite the current diagnosis of a bilateral foot disability, and evidence of treatment in service, there is no medical evidence of record relating the veteran's disability to service. In December 1989, the veteran received treatment from a private physician for tender calluses. In March 2000, the veteran was diagnosed with pes planus by a private physician. Neither of these private physicians related the veteran's foot disabilities to service. Furthermore, the examiner in the November 2007 VA Compensation and Pension Examination reviewed the claims file and considered the treatment for foot pain in service. The examiner noted that there was no chronic condition noted at separation from service and that for ten years after service the veteran did not seek treatment for foot pain. The examiner also considered the veteran's ability to work after service and his prior medical history of several foot surgeries. The examiner opined that it was less likely as not that the veteran's bilateral metatarsalgia was directly related to the same complaints of foot pain in service. The Board finds that the approximate 10 year lapse in time between separation from service and treatment for foot pain after service weighs against the veteran's claim. Furthermore, no doctor has ever opined that his foot disability is related to the complaints of pain in service. The only competent medical opinion of record does not relate the veteran's bilateral foot disability to service. Without competent medical evidence linking the veteran's disability to service, service connection is not warranted. The Board has considered the veteran's contention that a relationship exists between his current bilateral foot disability and the treatment in service. However, as a layman, without the appropriate medical training and expertise, he is not competent to provide a probative opinion on a medical matter such as etiology. While a layman such as the veteran can certainly attest to his in-service experiences and current symptoms, he is not competent to provide an opinion linking that disability to service. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). In sum, the evidence of record does not show a nexus between the veteran's current bilateral foot disability and service. As the preponderance of the evidence is against the veteran's claim, the benefit-of-the-doubt rule does not apply, and the veteran's claim for service connection for a bilateral foot disability must be denied. See 38 U.S.C.A §5107; 38 C.F.R. § 3.102. ORDER Service connection for a bilateral foot disability is denied. ____________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs