Citation Nr: 0814655 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 07-21 197 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for status post open amputation of the right great toe at the transmetatarsal level. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD D. M. Ames, Associate Counsel INTRODUCTION The veteran had active military service from June to August 1984. This appeal to the Board of Veterans' Appeals (Board) is from a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. FINDING OF FACT The veteran's post-service amputation of the right great toe was not caused or aggravated by his active military service from June to August 1984. CONCLUSION OF LAW The veteran's right great toe amputation at the transmetatarsal level is not due to disease or injury incurred in or aggravated by his active military service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.306(a) (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The Duties to Notify and Assist Review of the claims file reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). That is, by way of a letter dated in August 2006, the RO advised the veteran of the evidence needed to substantiate his claim and explained what evidence VA was obligated to obtain or to assist him in obtaining and what information or evidence he was responsible for providing. 38 U.S.C.A. § 5103(a). See Quartuccio v. Principi, 16 Vet. App. 183 (2002). Consider also that the RO issued that VCAA notice letter prior to initially adjudicating his claim, the preferred sequence. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (Pelegrini II). As well, that letter specifically asked that he submit any evidence in his possession pertaining to his claim. Id. at 120-21. In any event, VA's Office of General Counsel has indicated requiring VA include such a request as part of the notice provided to a claimant under those provisions is obiter dictum and, therefore, not binding on VA. See VAOPGCPREC 1-2004 (Feb. 24, 2004) (OGC discussed this in response to the holding in Pelegrini v. Principi, 17 Vet. App. 183 (2002) (Pelegrini I), but the Court used basically the same language in Pelegrini II, so it is equally applicable). The Board is bound by the precedent opinions of VA's General Counsel, as the Chief Legal Officer of the Department. See 38 U.S.C.A. § 7104(c) (West 2002). If there arguably is any deficiency in the notice to the veteran or the timing of the notice it is harmless error. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding the Board had erred by relying on various post- decisional documents for concluding adequate 38 U.S.C.A. § 5103(a) notice had been provided to the appellant, the Court nonetheless determined the evidence established the veteran was afforded a meaningful opportunity to participate effectively in the adjudication of his claims, and therefore found the error harmless). That is to say, if there was any deficiency in the notice to the veteran, the Board finds that the presumption of prejudice on VA's part has been rebutted: (1) based on the communications sent to him over the course of this appeal, he clearly has actual knowledge of the evidence he is required to submit; and (2) based on his contentions and the communications provided to him by VA over the course of this appeal, he is reasonably expected to understand from the notices provided what was needed. See Sanders v. Nicholson, 487 F.3d 881 (2007). During his hearing, and in the statements he and his representative had submitted before the hearing, they made arguments specifically addressing why service connection is warranted - including on the basis of aggravation of a pre- existing condition. So they are well aware of the evidence needed to support the claim. It equally deserves mentioning that, in the August 2006 letter, the veteran also was informed that a disability rating and effective date will be assigned if his underlying claim for service connection is ever granted. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). And as for the duty to assist, the RO obtained the veteran's service medical records and private medical records. As there is no other indication or allegation that relevant evidence remains outstanding, the Board finds that the duty to assist has been met. 38 U.S.C.A. § 5103A. An etiological opinion has not been obtained. However, the Board finds that the evidence, discussed below, which indicates the veteran did not have his right great toe amputated until many years after service, and that there is no competent medical evidence showing or indicating a nexus (link) between his military service and this amputation, warrants concluding that a remand for an examination and/or opinion is unnecessary to decide this claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159 (c)(4) As his service and post-service medical records provide no basis to grant his claim, and indeed provide evidence against his claim, there simply is no basis for requesting a VA examination and medical nexus opinion. The only evidence suggesting a correlation between the amputation and his military service is his unsubstantiated lay allegations, and those of his representative. But these statements are insufficient to trigger VA's duty to provide an examination; VA is not obligated to provide an examination for a medical nexus opinion where, as here, the supporting evidence of record consists only of lay statements. See Duenas v. Principi, 18 Vet. App. 512, 519 (2004). Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. Simply stated, the standards of McLendon are not met in this case. The evidence shows there is a current disability, however, the second and third elements are not met because there is no evidence or indication this disability manifested during service. In fact, medical evidence explicitly states the veteran's right great toe was amputated due to his diabetes, which has not otherwise been linked to his military service. Whether the Veteran is Entitled to Service Connection Service connection is granted for current disability resulting from an injury sustained or a disease contracted in the line of duty during active military service, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1131, 1153; 38 C.F.R. §§ 3.303(a), 3.306. Service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Direct service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). A disorder may be service connected if the evidence of record reveals that the veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated subsequent to service. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Evidence that relates the current disorder to service must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. Savage, 10 Vet. App. at 495-97. For the showing of chronic disease in service, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). Disorders diagnosed after discharge may still be service connected if all the evidence, including relevant service records, establishes the disorder was incurred in service. 38 C.F.R. § 3.303(d). 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 evidence do not constitute competent medical evidence. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is resolved in favor of the veteran. 38 U.S.C.A. § 5107(b). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998) citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The first and perhaps most fundamental requirement for any service-connection claim is competent evidence of the existence of a current disability. Boyer, 210 F.3d at 1353; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Records confirm the veteran's right great toe was amputated in March 2004. So there is no disputing he has had this toe amputated. Therefore, the determinative issue is whether this amputation was somehow attributable to his military service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service."). See, too, Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). And it is in this critical respect that his claim fails. Consider first that the rating decision on appeal also denied the veteran's claim for service connection for status post malunion of the right great toe with a bunion on the right foot, the condition for which he was discharged from the military. And when submitting his January 2007 Notice of Disagreement (NOD) to initiate an appeal of the RO's decision, he did not contest the denial of that claim. So there was no mention of that claim in the June 2007 statement of the case (SOC) or in his substantive appeal (VA Form 9), received in July 2007. The veteran did not have his right great toe amputated until many years after service, indeed, until March 2004, so some two decades after the fact. Moreover, records show the amputation was required due to gangrene caused by his diabetes, a condition that has not been determined to be related to his military service. During his recent January 2008 video-conference hearing, the veteran asserted that he injured his right great toe prior to entering the military in June 1984, and that marching and running during boot camp aggravated his pre-existing right great toe condition, which eventually contributed to his need for the amputation. A pre-existing injury or disease will be considered to have been aggravated during service when there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). The presumption of aggravation may be rebutted only by clear and unmistakable evidence. 38 C.F.R. § 3.306(b). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition itself, as contrasted with mere symptoms, has worsened. See Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). In July 2003, VA's General Counsel issued a precedent opinion holding that in order to rebut the presumption of soundness in 38 U.S.C.A. § 1111, VA must demonstrate by clear and unmistakable evidence both that the disease or injury in question existed prior to service and that it was not aggravated by service. See VAOPGCPREC 3-2003 (July 16, 2003). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. This holding replaced the previous standard under 38 C.F.R. § 3.304(b), which had required that if a condition was not noted at entry but was shown by clear and unmistakable evidence to have existed prior to entry, the burden then shifted to the claimant to show that the condition increased in severity during service. In this case at hand, the presumption of soundness is rebutted because there is clear and unmistakable evidence the veteran had a right great toe condition prior to entering military service. It was noted by an evaluating physician on the June 1984 report of medical history, prior to enlistment, that the veteran had a chipped bone in his right foot due to an injury that he had sustained when he was 16 years old. The physician indicated the pre-existing condition was not disabling. In July 1984, the month after the veteran began serving on active duty, he reported to sick call and complained of pain and swelling in his right foot. He said he had been experiencing these symptoms for three weeks. He reported an injury caused by a lawn mower three years prior to entering service. The evaluating physician observed the veteran's great toes had slight lateral angles, with the right being greater than the left. This physician also observed the veteran had a tender abnormality on his right great toe. He was referred to a podiatrist, who concluded in July 1984 that the right toe condition had existed prior to service (EPTS). So as the veteran's condition clearly and unmistakably existed prior to service, the issue is to what extent - if any, his military service aggravated this condition. As mentioned, in July 1984, the veteran consulted a podiatrist. The podiatrist noted that the veteran was injured by a lawn mower prior to service. At the time of the injury, the veteran's religion prevented him from seeking the proper surgical care for his foot and, as a consequence, it did not heal properly. The podiatrist stated that the veteran could not perform his duties in his boots because this caused pain in his right foot. He had hallux valgus of the right foot and a healed V-shaped laceration with pain on motion at the first metatarsal joint. He could not stand on the toes of his right foot. The examiner also observed a "tremendous bunion" on the veteran's right foot. X-rays showed a malunion of the first metatarsal. The podiatrist concluded there was "little chance" that the veteran could complete recruit training with his condition. He was diagnosed with malunion of the first metatarsal on the right foot and a bunion on the right great toe, which existed prior to entry into service. He was subsequently discharged by a medical board due to symptomatic status post malunion on first metatarsal of the right foot and a bunion. The veteran's service medical records (SMRs) show complaints of right foot pain during a visit to sick call and a referral consultation with a podiatrist, and that he was discharged during recruitment training because his pre-existing injury prevented him from completing boot camp. While he complained of right foot pain in service, the SMRs from the short period of time he was in the military do not show permanent aggravation. In fact, after leaving service, he did not mention his pre-existing injury to a physician until 1997, some 13 years later. And, again, the post-service medical records show the veteran's right great toe eventually was amputated in 2004 due to complications of his diabetes, which was first diagnosed in approximately 1991, some 7 years after his military service had ended. There is absolutely no medical evidence suggesting a connection between his diabetes, much less the gangrene complication of it, and the right great toe injury he sustained prior to service. During his January 2008 video-conference hearing, his representative explicitly stated that they were not requesting service connection for the diabetes. Records from R. G., a private physician, show the veteran's right great toe became gangrenous and amputated in March 2004, along with his left leg below the knee. His left foot had been amputated prior to his March 2004 surgery. Before the amputation, he was treated by B. O., also a private physician, for diabetic neuropathy in his lower extremities and ulcers on his right foot, and left foot prior to its amputation. Records from Dr. B. O. show the veteran's peripheral neuropathy and ulcers were caused by his diabetes (so additional complications of this condition). The only mention of the veteran's lawnmower injury prior to service is in a November 1997 record from Dr. R. B., who noted the veteran had a history of pain in both feet about eight months prior to his appointment. This is the first mention of treatment for the veteran's right great toe, 13 years after leaving the military. This lapse of so many years between his separation from service and the first complaints or treatment for this claimed disorder is a factor for consideration in deciding his service-connection claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Dr. R. B. indicated the onset was unrelated to any specific injury, although noting the veteran had a history of trauma to his right foot about 18 years prior. On objective physical examination, he had an enlarged bunion on the medial aspect of his right foot with a healed laceration at the anterior base of the bump, with moderate hallux valgus deformity. He had good weight bearing posture on his right foot. X-rays showed a detached ossicle at the bunion bump of the M-P joint of the great toe and advanced degenerative hypertrophic arthritis of the M-P joint. There were no other bony abnormalities in his feet. He was diagnosed with hallux valgus of both feet, status post lawn mower injury to the right great toe, metatarsalgia, and diabetic peripheral neuropathy. No mention was made of his military service as a source of aggravation of his pre- service injury. The veteran's post-service medical records do not indicate that his relatively brief period of military service chronically (meaning permanently) aggravated his right toe injury that he had sustained prior to service, despite his and his representative's allegations to the contrary. This evidence does show, however, that the amputation of his right great toe is completely unrelated to his pre-service lawn mower accident. So service connection cannot be granted under the theory of aggravation of a pre-existing condition. The post-service records do not support service connection under a direct theory either, as they show the veteran's diabetes caused the gangrene in his right great toe, which in turn led to the amputation in March 2004. There is no medical evidence of record showing the required link between this amputation and anything that occurred during his relatively brief period of active military service, including running and jumping during boot camp. This evidence clearly and unmistakably shows that an unrelated medical condition, diabetes, was the sole cause of his right toe amputation. In determining whether service connection is warranted, VA is responsible for considering both the positive and negative evidence. If the evidence, as a whole, is supportive or is in relative equipoise (i.e., about evenly balanced), then the veteran prevails. Conversely, if the preponderance of the evidence is negative, then service connection must be denied. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). See also Dela Cruz v. Principi, 15 Vet. App. 143, 148-49 (2001). The evidence is not in equipoise, as there is no evidence of record to support the veteran's contentions. For these reasons and bases, the preponderance of the evidence is against his claim -- in turn meaning there is no reasonable doubt to resolve in his favor and his claim must be denied under both the direct service connection theory and the aggravation theory. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER The claim for service connection for status post open amputation of the right great toe at the transmetatarsal level is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs