Citation Nr: 0814394 Decision Date: 05/01/08 Archive Date: 05/12/08 DOCKET NO. 06-38 501 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for a right foot disorder. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD Michael Martin, Counsel INTRODUCTION The veteran had active service from January 1971 to December 1971. This matter came before the Board of Veterans' Appeals (Board) on appeal from decisions by the Department of Veterans Affairs (VA) Oakland, California, Regional Office (RO). FINDINGS OF FACT 1. A stress fracture of the fourth metatarsal of the right foot which occurred in service resolved without residual disability. 2. The veteran's current right foot disorder was not present until many years after service and the only competent evidence shows that the disorder is unrelated to service. CONCLUSION OF LAW A current right foot disorder was not incurred in or aggravated by service, and arthritis of the right foot may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that the content requirements of a duty to assist notice have been fully satisfied. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). A letter from the RO dated in September 2005 provided the veteran with an explanation of the type of evidence necessary to substantiate his claim, as well as an explanation of what evidence was to be provided by him and what evidence the VA would attempt to obtain on his behalf. The veteran's notification letter was provided before the adjudication of his claim. In addition, the letter adequately informed the veteran that he should submit any additional evidence that he had in his possession. The Board also notes that in a letter dated in March 2006 he was advised regarding the assignment of disability rating and effective dates if service connection were to be granted. The VA has no outstanding duty to inform the appellant that any additional information or evidence is needed. The Board concludes, therefore, that the appeal may be adjudicated without a remand for further notification. The Board also finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained. His service medical records and post service treatment records have been obtained. The veteran has stated that he had no treatment between the dates of separation from service and 2005 when he received treatment from the VA. He has declined a hearing. He has been afforded an appropriate disability evaluation examination. The Board does not have notice of any additional relevant evidence which is available but has not been obtained. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the veteran's claim. Therefore, no further assistance to the veteran with the development of evidence is required. Service connection may be granted for disability due to disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131. If a chronic disorder such as arthritis is manifest to a compensable degree within one year after separation from service, the disorder may be presumed to have been incurred in service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The veteran's service medical treatment records reflect that in June 1971 he was found at a service podiatry clinic to have an early stress fracture of the 4th metatarsal of the right foot. A consultation record reflects that a physician at the orthopedic clinic agreed with that diagnosis. The veteran was given crutches and a "boot," and placed on light duty. An orthopedic clinic record dated in June 1971 reflects that he reported that he was still tender over the 4th metatarsal. He was instructed to continue with crutches and light duty. There are no additional references to the right foot stress facture in his service medical records. On separation from service in December 1971, the clinical evaluations of the feet and lower extremities were normal. It was stated that he was qualified for the performance of the duties of his rank at sea or in the field. There is no evidence that arthritis of the right foot was manifest within one year after separation from service. The earliest post service medical records pertaining to right foot problems are from many years after service. VA records dated in 2003 reflect complaints related to the left foot, but contain no mention of right foot problems. A VA examination report dated in March 2004 notes that the veteran had a fracture of the second metatarsal in the left foot after trauma, but there is no mention of the right foot. In March 2005, the veteran filed a claim for service connection for a foot fracture. The RO subsequently obtained his recent VA treatment records. A VA podiatry clinic record dated in June 2005 reflects that the veteran stated that he had a problem that started about two years ago and became worse. He reportedly had pain at the right second MTJP. The veteran also stated that he had a history of a broken metatarsal in the left foot, with a stress fracture of the right foot in the Marines. Neither this record, nor any subsequent record contains any medical opinion linking the current right foot disorder to the stress fracture many years earlier in service. A VA treatment record dated in August 2005 reflects that the veteran stated that he had pain in the right first and second toe joints which started in service and became worse in the past two years. To the extent that the post service record can be interpreted as showing that the veteran gave a history of continuity of right foot pain since service, the Board notes that the fact that a treatment record contains a history of onset of symptoms during service is not enough to support the claim. In LeShore v. Brown, 8 Vet.App. 406, 409 (1995), the Court held that: Evidence which is simply information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute "competent medical evidence"...[and] a bare transcription of a lay history is not transformed into "competent medical evidence" merely because the transcriber happens to be a medical professional. There is only one medical opinion of record. The report of a VA examination conducted in November 2005 reflects that the examiner revealed the claims file and noted that the veteran had a stress fracture of the neck of the fourth metatarsal of the right foot in June 1971. The examiner stated that it appeared that the fracture healed without any complications. It was noted that the veteran went on to do normal duties, and that examination on discharge in December 1971 did not reflect any issues relating to the foot. The examiner further reviewed the veteran's recent VA treatment records. He noted that X-rays showed irregularity of the second metatarsal head of the right foot. He further noted that there was no mention of any degenerative changes in the fourth metatarsal. Following physical examination, the pertinent diagnoses were: (1) status post stress fracture of the neck of the fourth metatarsal in 06/71 with very good outcome. No disability relating to that is identified. (2) Unrelated hallux rigidus and bunions, which are symptomatic bilaterally, right more than left. The veteran is status post bunionectomy from 08/05 on the right side. (3). DJD changes of the second NT joint of the right foot relating to some unrelated pathology to the stress fracture of 06/71. The examiner noted that review of the claims file showed that the veteran had a fracture of the metatarsal in June 1971 and had a good outcome. The examiner stated that he did not have any residual disability at the time of separation. He further found that currently there is no pathology noted relating to that metatarsal. He concluded that "in my opinion, the veteran's current foot pathology is not caused by or the result of the stress fracture of the fourth metatarsal that happened in June 1971. After considering all of the evidence of record, the Board finds that there is no competent evidence that the veteran currently has a right foot disorder which is related to service. The veteran had a normal foot on separation from service, and there was a gap of 34 years between the treatment noted in service in 1971, and the treatment noted after service in 2005. The only medical opinion which is of record weighs against the claim. Accordingly, the Board concludes that a current right disorder was not incurred in or aggravated by service, and arthritis of the right foot may not be presumed to have been incurred in service. ORDER Service connection for a right foot disorder is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs