Citation Nr: 1005877 Decision Date: 02/17/10 Archive Date: 03/02/10 DOCKET NO. 04-21 811 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a right foot disability, as secondary to a service-connected left foot disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty from July 1951 to January 1952. In June 2009, the Board of Veterans' Appeals (Board) remanded the issue currently on appeal to the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida (RO) for additional development. The issue of service connection for a hip disability has been raised by a May 2008 private medical report and is referred to the RO for appropriate action. FINDING OF FACT The Veteran does not have a right foot disability that is caused or aggravated by his service-connected left foot disability. CONCLUSION OF LAW The Veteran does not have a right foot disability that is proximately due to or the result of service-connected disability. 38 U.S.C.A. §§ 5103A, 5107, 7104 (West 2002); 38 C.F.R. § 3.310 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Assist and Notify The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2007). The regulations implementing VCAA have been enacted. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied. The notice and assistance provisions of VCAA should be provided to a claimant prior to any adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Notice to the Veteran was not sent in this case until later in the claims process. However, VA may proceed with adjudication of a claim if errors in the timing or content of the notice are, as in this case, not prejudicial to the claimant. Dunlap v. Nicholson, 21 Vet. App. 112 (2007); Mayfield v. Nicholson, 19 Vet. App. 103 (2005); see also Pelegrini, 18 Vet. App. at 121. Letters were sent to the Veteran in September 2003 and March 2007 that informed her of the requirements needed to establish entitlement to the issue on appeal. In accordance with the requirements of VCAA, the letters informed the Veteran what evidence and information she was responsible for obtaining and the evidence that was considered VA's responsibility to obtain. Additional private evidence was subsequently added to the claims file after the letters. A June 2009 letter provided information concerning the evaluation or the effective date that could be assigned should service connection be granted. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. Relevant private and VA opinions are on file. All available evidence has been obtained and there is sufficient medical evidence on file on which to make a decision on the issue decided herein. The Veteran has been given ample opportunity to present evidence and argument in support of her claim. All general due process considerations have been complied with by VA, and the Veteran has had a meaningful opportunity to participate in the development of the claim. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); 38 C.F.R. § 3.103 (2007). Analysis of the Claim The Veteran seeks service connection for a right foot disability as secondary to her service-connected left foot disability. Having carefully considered this claim in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against the claim and the appeal will be denied. Service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice- connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439 (1995). In order to prevail on the issue of entitlement to secondary service connection there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. The medical evidence consists of the Veteran's service treatment records, VA and private treatment records dated from May 1952 to December 2009, and written statements by and on behalf of the Veteran. The Veteran's service treatment records reveal that she incurred chronic bursitis of the left plantar bursa, for which she underwent excision in November 1951. No right foot disability was noted in service. The initial postservice medical evidence of a right foot disability was in January 1988, when it was noted that the Veteran had bilateral hallux limitus. She underwent right foot surgery in July 1988 for hallux limitus with degenerative joint disease. VA treatment records later in 1988 and in 1989 reveal treatment for right foot disability. Private X-rays for January 2003 reveal moderate arthritis at the right metatarsophalangeal joint, a small right inferior calcaneal spur, and very mild bilateral hallux valgus. February 2003 VA treatment records reveal an assessment of worsening degenerative arthritis of the feet related to service-connected foot problems. A March 2003 statement from K.B.H., M.D., reveals bilateral arthritis of the feet and antalgic gait secondary to bilateral foot pain. It was noted in a June 2007 medical report from P.E.K., D.P.M., the Veteran's podiatrist, which included a foot scan, that the Veteran wore a 3/8 inch heel lift on the right. It was reported that the Veteran required orthotics to accommodate for and correct a demonstrated degree of functional rigidity. According to a March 2008 VA evaluation, which included review of the claims file, the Veteran's right foot condition was not due to her service-connected left foot disability. It was noted that the Veteran had had surgery in 1988 for hallux rigidus and that hallux rigidus is quite common as a normal person ages and does not have any significant relationship to left foot arthritis/condition. The examiner said that there is no evidence of a service incident involving the right foot. According to a May 2008 statement from Dr. K, the Veteran had surgery on her left foot in service, causing her to apply more pressure upon weight bearing to the right foot, which continued to aggravate the hip and right foot. The Veteran underwent VA evaluation in November 2008, which included review of the claims file. The examiner concluded that the Veteran's right foot degenerative joint disease was not related to her left foot condition/disability. The case was remanded by the Board in June 2009 in order for the VA examiner to review the May 2008 private opinion and to comment on whether the altered gait caused by the Veteran's service-connected left foot has caused or aggravated her current right foot disability; the examiner was to provide a medical basis for the opinion, if an opinion could be provided without resorting to speculation. According to a December 2009 VA evaluation report, which was based on a review of the claims file, it "is is less likely as not that her left foot condition would have lead to any substantial acceleration of degenerative changes in her right foot. There is no conclusive medical evidence to suggest otherwise." The Board notes that there is medical evidence both for and against the claim. The Board is obligated under 38 U.S.C.A. § 7104(d) (West 2002) to analyze the credibility and probative value of all evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide reasons for its rejection of any material evidence favorable to the Veteran. See Eddy v. Brown, 9 Vet. App. 52 (1996); Meyer v. Brown, 9 Vet. App. 425 (1996); Gabrielson v. Brown, 7 Vet. App. 36 (1994). The Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Brown, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Court has held that the Board may not reject medical opinions based on its own medical judgment. See Obert v. Brown, 5 Vet. App. 30 (1993). After review of the evidence as a whole, the Board finds the evidence against the claim, especially the VA opinions on file, to be more probative than the evidence in favor of the claim. Although there is a May 2008 private opinion in favor of the claim from Dr. K, there is no indication that Dr. K's opinion was based on a review of the prior pertinent evidence. The February 2003 VA notation of worsening degenerative arthritis of both feet related to service-connected foot problems is contradicted by subsequent VA medical opinions. In fact, there are three separate VA opinions by three different VA health care providers dated from March 2008 to December 2009, each based on a review of the claims file, against the claim. It was noted by the VA examiner in March 2008 that the Veteran's right hallux rigidus is a common condition and does not have any significant relationship to her service- connected left foot disability. Moreover, a VA examiner essentially concluded after review of the claims file in December 2009 that there was no clear medical evidence on file to indicate aggravation of the Veteran's right foot disability due to her service-connected left foot disorder. Due consideration has been given to the written statements by and on behalf of the Veteran in support of her claim. Although the Veteran can provide competent evidence as to her observations, she cannot provide competent evidence to establish the etiology of any current diagnosis, to include whether she has a current right foot disability that is causally related to a service-connected disorder. By "competent medical evidence" is meant in part that which is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992); see also 38 C.F.R. § 3.159 (a)(1). The Board has also considered the doctrine of reasonable doubt in reaching the above decision; however, as the preponderance of the informed evidence is against the Veteran's service-connection claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for aggravation of a right foot disability, as secondary to the service-connected left foot disability, is denied. ____________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs