Citation Nr: 1007652 Decision Date: 03/01/10 Archive Date: 03/11/10 DOCKET NO. 05-24 141 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a right foot disability. 2. Entitlement to service connection for a left foot disability. REPRESENTATION Appellant represented by: Joseph J. Bush, III, attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran had active service from October 1969 to October 1970. This appeal to the Board of Veterans Appeals (Board) arises from a February 2005 rating action that denied service connection for a bilateral foot disability. In May 2007, and October 2008, the Board remanded this case for additional development. In February 2006, the appellant testified at a Board hearing before the undersigned Veterans Law Judge in Washington, D.C. FINDING OF FACT The Veteran does not have a right foot disability, or a left foot disability, as a result of his service. CONCLUSION OF LAW A right foot disability, and a left foot disability, were not incurred in or aggravated by the Veteran's active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION I. Service Connection The appellant asserts that service connection is warranted for a bilateral foot disability. He asserts that he has foot disabilities due to injuries incurred during service, to include removal of a foot cyst, and toe injuries, and twisting his right leg during service in Okinawa, with "quite a bit" of associated treatment. He testified that after separation from service, he was employed in construction, to include truck driving and delivering bricks. See transcript of Veteran's hearing, held in February 2006. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Service connection may also be granted for arthritis, when it is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309. As an initial matter, although the issues on appeal have been characterized as "foot disabilities," the scope of the Veteran's claims appears to include assertions that he has bilateral ankle disabilities that are related to his service. See transcript of Veteran's hearing, held in February 2006. The issues are therefore intended to include consideration of bilateral ankle disabilities. See EF v. Derwinski, 1 Vet. App. 324, 326 (1991) (the Board must review all issues reasonably raised from a liberal reading of all documents in the record). The Veteran's service treatment reports show that in April 1970, he received treatment for a cyst at the right ankle. In this regard, a treatment report, dated April 13, 1970, states that he had a cyst on the left foot. However, another report, also dated April 13, 1970, notes that he had a mass on the right foot, and when the notation of a left foot cyst is viewed in context with other associated treatment reports, which all note a right foot disorder, it appears that this notation was in error, and that the Veteran was treated for a right foot cyst. Specifically, an X-ray for the right ankle, dated in April 1970, notes that there were no significant abnormalities. Reports, dated April 30, 1970, and in May 1970, both note a cyst at the right ankle. A separation examination report is not of record. As for the post-service medical evidence, it consists of VA and non-VA reports, dated between 1998 and 2009, and reports from the Social Security Administration (SSA). The VA reports show that, beginning in 2001, the Veteran was afforded multiple notations of osteoarthritis (otherwise unspecified). In addition, VA progress notes, dated in February 2001, show complaints of right ankle pain, note a right ankle sprain, and state that an "X-ray was taken and that the Veteran was told that he has an old injury at site." This evidence shows a number of treatments by a VA rheumatology clinic, with notations of right plantar fasciitis, and right Achilles tenderness, that there was no evidence of systemic inflammatory arthritis, and that the Veteran has a history consistent with gout of the lower extremities. They further note a history of employment as a construction worker, with retirement in 2001. See e.g., reports dated in September and November of 2006. A July 2006 report shows treatment for a left foot puncture after he stepped on a rusty nail. A September 2006 X-ray report for the feet notes no acute fracture or dislocation, no bony erosion or destruction, and narrowing of the first MTP (metatarsalphalangeal) joints bilaterally. A VA examination report, dated in July 2008, shows that the Veteran complained of foot swelling and pain. The diagnoses were bilateral foot arthralgia, and right minimal degenerative joint disease of the talonavicular joint. The examiner stated that the Veteran did not have any chronic foot problems due to removal of a benign lesion of the right foot in service, and that the findings for the left foot are dated no earlier than 2002, 32 years after service, with no correlation to military service. The examiner noted that the Veteran had a post-service employment history which include laborer, truck driver, and concrete worker, and that these occupations "could certainly have caused wear and tear on his feet" and have resulted in chronic foot complaints. He concluded, "Overall, it does seem more than likely as not that his feet complaint[s] stem from post-service time problems and not from his military time." The examiner stated that the Veteran's C-file had been reviewed. With regard to the private treatment reports, they show treatment for complaints of a twisted right ankle in 2001. A February 2001 X-ray for the right ankle notes the presence of bone fragments which "suggest that this is the sequale of remote trauma." He was treated complaints of left foot and left ankle pain beginning in 2002. Also in 2002, the Veteran underwent surgery for a lytic lesion of the left third toe, and hallux rigidus of the left great toe. A report from R.L.C., M.D., dated in April 2002, notes that, "He worked hard for 8 years in the supply company for the cement where he had to do manual labor also." The diagnosis noted multiple joint pains, to include the ankles. A decision of the Social Security Administration (SSA), dated in May 2005, indicates that the SSA determined that the Veteran was disabled as of December 2001, with a primary diagnosis of "osteoarthritis and allied disorders," and a secondary diagnosis of "disorders of the back." To the extent that they are relevant, the SSA's associated medical reports have been discussed elsewhere. A lay statement from a friend of the Veteran, received in October 2007, essentially asserts that the Veteran had no disabilities prior to service, but that upon return from service he complained of foot symptoms, and began receiving treatment. The Board finds that the claims must be denied. The Veteran's service treatment reports show treatment for a cyst at the right ankle between April and May of 1970, with no subsequent treatment during the remainder of his service, a period of about five months. There is no evidence of treatment for left foot symptoms. Therefore, a chronic condition is not shown during service. See 38 C.F.R. § 3.303(a). As for the post-service medical evidence, the earliest medical evidence of either a right foot or a left foot disorder is dated in 2001. This is over 30 years after separation from service, and this lengthy period without treatment weighs against the claims. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). In addition, the July 2008 VA opinions weigh against the claims. Finally, there is no medical evidence to show that arthritis of either foot was manifest to a compensable degree within one year of separation from service. See 38 C.F.R. §§ 3.307, 3.309. In summary, the evidence does not show that the Veteran has a left foot disability, or a right foot disability, that is related to his service, and the Board finds that the preponderance of the evidence is against the claims, and that the claims must be denied. Id. In reaching this decision, the Board has considered a statement from J.D.S., M.D., dated in May 2004, in which the physician states that the Veteran has hallux rigidus "which is possibly related to his military career from prolonged walking, running, or standing." Associated treatment reports from the physician show treatment for left toe symptoms beginning in 2002. This opinion is equivocal in its terms (i.e., "possibly related"), it is not shown to have been based on a review of the Veteran's C-file, or any other detailed and reliable medical history, nor does it discuss the absence of treatment both during service (i.e., there is no evidence of treatment for hallux rigidus, or a left toe disorder), and for many years following service (i.e., between 1970 and 2001), or cite to any inservice findings in support of its conclusion. It is therefore not afforded sufficient probative value to warrant a grant of either of the claims. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion.); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (a VA adjudicator may properly consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the veteran); Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir. 1997) (noting that the Federal Circuit has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence"). Accordingly, the Board finds that the preponderance of the evidence is against the claims, and that the claims must be denied. With regard to the Veteran's own contentions, and the lay statement, a layperson is generally not capable of opining on matters requiring medical knowledge. 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 issues on appeal are based on the contention that bilateral foot disabilities were caused or aggravated by service that ended in 1970. In this case, when the Veteran's service treatment records (which do not show any relevant treatment, findings, or diagnoses for the left foot, and which show treatment for a right foot cyst between April and May of 1970), and his post-service medical records are considered (which do not show any relevant treatment prior to 2001, and which include competent and highly probative opinions against the claims), the Board finds that the service treatment reports, and the medical evidence, outweigh the lay statements, to the effect that the Veteran has the claimed conditions that are related to his service. II. VCAA The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2009). The notification obligation in this case was accomplished by way of letters from the RO to the Veteran dated in October and December of 2006, and in May 2007. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. To the extent that the Veteran has asserted that there are missing service treatment reports that are not of record, it appears that all known and available service treatment reports (as well as post-service records) relevant to the issues on appeal have been obtained and are associated with the Veteran's claims files. In this regard, a response from the National Personnel Records Center (NPRC), dated in September 2003, appears to indicate that the NPRC sent the Veteran some service treatment reports. However, the only service treatment report that the Veteran has submitted was already associated with the claims files. See Veteran's submissions, received in January 2004 (i.e., a September 2003 NPRC letter, and a service treatment report dated April 13, 1970). The RO has obtained the Veteran's VA and non-VA medical records, and SSA records. The Veteran has been afforded an examination, and etiological opinions have been obtained. Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER The appeal is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs