Citation Nr: 1019749 Decision Date: 05/27/10 Archive Date: 06/09/10 DOCKET NO. 05-06 061 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for bilateral pes planus. 2. Entitlement to service connection for residuals of bilateral hallux valgus and hammertoes. 3. Entitlement to service connection for a left hip disorder, including as secondary to a service-connected left knee disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jon Schulman, Associate Counsel INTRODUCTION The Veteran had active service from December 1969 until July 1971. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a July 2004 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Albuquerque, New Mexico. In April 2009, the Board remanded the Veteran's appeal to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. FINDINGS OF FACT 1. The competent medical evidence shows that the Veteran's bilateral pes planus existed prior to service and did not become worse during service. 2. The competent medical evidence shows that neither the Veteran's bilateral hallux valgus nor his hammertoes were manifest during service or are attributable to service. 3. The competent medical evidence shows that a left hip disorder is not attributable to the Veteran's service- connected left knee disability and was not aggravated by the service-connected left knee disability. CONCLUSIONS OF LAW 1. Bilateral pes planus preexisted service and was not aggravated by service. 38 U.S.C.A. §§ 1111, 1153 (West 2002); 38 C.F.R. § 3.306 (2009) 2. Neither bilateral hallux valgus nor hammertoes were incurred in or aggravated by service. 38 U.S.C.A § 1110 (West 2002); 38 C.F.R. § 3.303 (2009). 3. A left hip disorder is not proximately due to, nor has it been aggravated by, the Veteran's service-connected left knee disability. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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. 2008); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See, Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Here, the VCAA duty to notify was satisfied by way of letters sent to the Veteran in November 2003 and April 2004 that fully addressed all notice elements and were sent prior to the initial RO decision in this matter. The letters provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal. Furthermore, a letter sent to the Veteran in March 2006 informed him of what type of information and evidence was needed to establish a disability rating and effective date, supplementing VA's compliance with the VCAA and satisfying 38 C.F.R. § 3.103. Based on the foregoing, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist the Veteran in the development of the claim. To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2009). Service treatment records have been obtained, as have records of VA treatment. Furthermore, the Veteran was afforded VA examinations in July 2009 during which the examiners were provided the claims file for review, took down the Veteran's history, and reached conclusions based on their examinations that are consistent with the record. The examinations are found to be adequate. 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). In addition to the evidence discussed above, the Veteran's statements in support of the claim are also of record. The Board has carefully considered such statements and concludes that no available outstanding evidence has been identified. Additionally, the Board has reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For the above reasons, 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). Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Pes Planus The Veteran is claiming entitlement to service connection for bilateral disorders of the feet, which the Board interprets broadly to include pes planus, as reported by history by the Veteran during service. Service treatment records reflect that on enlistment, the Veteran endorsed a history of flat feet (i.e. pes planus), but no medical examination was conducted. The remaining service treatment records do not show complaints or treatment referable to the feet and on separation examination in July 1971, the Veteran's feet were normal. Generally, Veterans are presumed to have entered service in sound condition as to their health. See 38 U.S.C.A. § 1111 (West 2002). The burden of proof is on VA to rebut the presumption by producing clear and unmistakable evidence that a disability existed prior to service. See Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the" preexisting condition. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(a) (2009). Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying disability, as contrasted to the symptoms of that disability, has worsened. See Hunt v. Derwinski, 1 Vet. App. 292 (1991), Beverly v. Brown, 9 Vet. App. 402 (1996). Clear and unmistakable evidence (obvious and manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b) (2009). If this burden is met, then the Veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness under section 1111, the Veteran's claim is one for service connection. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir.2004). The presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulation provides expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. at (b)(1). The Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for bilateral pes planus. On enlistment in December 1969, the Veteran reported a history of flat feet. The Veteran is competent to report a history of flat feet which existed prior to service. The Board thus finds such reported medical history to be credible. See Layno v. Brown, 6 Vet. App. 465 (1995); Buchanan v. Nicholson, 451 F3d 1331 (2006). Accordingly, the Board finds that there is clear and unmistakable evidence of record that the Veteran's bilateral pes planus existed prior to service. In addressing the question of whether pes planus was aggravated by service, the Board reiterates that the remaining service treatment records show no complaints referable to the feet. Furthermore, on separation examination in July 1971, the Veteran's feet were indicated to be normal. Accordingly, the Board finds that pes planus was not aggravated by service. In sum, bilateral pes planus predated service and was not aggravated by service. This the presumption of soundness is rebutted. As the evidence establishes that there was no increase in severity, the Board concludes that the pre-service pres planus was not aggravated during service. Thus, the claim is denied. Bilateral Hallux Valgus and Hammertoes The Veteran claims that injuries to his feet are the result of wearing boots of the wrong size during service. As stated above, service treatment records reflect that on enlistment, the Veteran endorsed a history of flat feet, but at separation his feet were normal. In December 2003, radiographic imaging of the feet revealed dorsal angulation of the right second toe at the metatarsal phalangeal joint. The plantar arch was somewhat flattened and there were early degenerative changes in the talonavicular joint. With regard to the left foot, the plantar arch was flattened in the lateral projection. Minor degenerative changes were identified in the midfoot. There were areas of intramedullary sclerosis in the distal tibia which may have been the result of bone infarction or similar abnormality. Small plantar calcaneal spurs were observed bilaterally. In January 2004, the Veteran indicated his desire to pursue surgery to correct his feet. He rated pain as six out of ten and said that he had multiple painful calluses. MRIs revealed T1 low signal T2 high signal lesions with internal matrix mid-shaft proximal phalanx right first digit with circumscribed margins and no evidence of cortical involvement. Based on plain radiographs, the lesion appeared larger in its anterior-posterior dimension between October 2001 and December 2003. The Veteran reported hammer toes in February 2004, and indicated that pain in his feet had begun "over the past few months." He believed his hammertoes and bunion were due to the fact that he wore size 12 shoes rather than size 13. His feet hurt more when it was cold, and when hiking the Veteran had to rest frequently. In March 2004, the Veteran underwent Austin-Akin and interphalangeal joint arthroplasties on his right foot. The pre- and post-operative diagnoses were of hallux abductovalgus and hammertoes two through five of the right foot. The operative report states that the Veteran's bilateral foot pain had a "several month" history, with pain in the right foot greater than the left. He attributed his pain to the fact that he could not fit into normal shoe gear and had many painful calluses. Following his surgery, the Veteran dropped a cane on his right foot and x-ray imaging revealed osteotomies of the distal aspects of the proximal phalanges of the third, fourth and fifth toe. In April 2004, the Veteran stated that during service he was given size 12 boots in spite of wearing a size 13. He admitted that he never sought treatment during service because during service he "didn't know [his] feet were mess[ed] up," and that "it took two years for [his] feet to develop hammer toes." Evaluation of the left foot in January 2005 revealed probable rheumatoid arthritis and hammertoes. In February 2005 the Veteran's left foot had abduction of the first metatarsophalangeal joint with limited dorsiflexion. Crepitus and bony end range of motion were noted as was a dorsal/medial bunion deformity with minimal erythema. A pinch callus of the medial aspect of the distal heard of the left phalanx of hallux was seen, with callus of the second, third and fourth digits of the foot. X-ray imaging showed healed fracture of the distal fifth metatarsal, abduction of proximal phalanx of the hallux, relatively rectus foot type and sclerotic densities in the distal tibia, probably intramedullary, possibly bone infarct. An April 2008 letter from the Veteran's primary care provider stated that the Veteran suffered from foot pain but did not identity the etiology of the pain. Although the provider indicated that she had been the Veteran's primary provider since 2001, she did not indicate the first onset of foot pain. In July 2009, the Veteran underwent a VA examination of his feet. The Veteran stated that he developed curling of the toes on both feet during service. He attributed this to improperly sized footwear. About the age of 30, the Veteran began to complain of calluses on his toes. On examination, the left foot showed objective evidence of minimal tenderness over the metatarsophalangeal joint. The foot had no arch on weightbearing, and an unusual mixed lytic sclerotic lesion was seen on the medullary space of the distal tibia. The right foot showed healed osteotomies with fixation screws, and was described as "somewhat flat." A bilateral radiographic series report indicated a hammertoe of the right third digit and erosive changes at the proximal interphalangeal joints of the fourth and fifth toes. The left foot showed post-surgical corrections and hardware, however no acute abnormalities were noted. On lateral examination, there was midfoot collapse illustrated on weight bearing. Based on a review of the claims file, the examiner concluded that the Veteran's hammertoes and hallux valgus were not etiologically related to any event or injury in service, including wearing the wrong size boots. The Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for bilateral hallux valgus and hammertoes. In considering the lay and medical history as detailed above, the Board notes that the amount of time that elapsed between military service and first post-service evidence of complaint or treatment can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board also notes, however, that the Veteran is competent to give evidence about what he has experienced. See Layno v. Brown, 6 Vet. App. 465 (1994). Moreover, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has held that in certain situations, lay evidence can even be sufficient with respect to establishing medical matters such as a diagnosis. Specifically, in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit commented that competence to establish a diagnosis of a condition can exist 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. Similarly, the U.S. Court of Appeals for Veterans Claims has held that 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. Barr v. Nicholson, 21 Vet. App. 303 (2007). In the present case, hallux valgus and hammertoes are capable of lay observation and thus the Veteran's statements constitute competent evidence. The Board must now consider the credibility of such evidence. Again, service treatment records do not reflect in-service complaints referable to the feet and at separation his feet were normal. The post- service first complaints referable to the feet do not appear until December 2003, 31 years after separation. Furthermore, in February 2004 the Veteran reported a history of foot pain dating only a few months. It was not until the Veteran filed his claim for service connection in March 2004 that the record reflects claims of in-service onset. Further illuminating is the fact that the Veteran had previously applied for benefits beginning in 1991 for numerous disorders, but no foot-related disorder was claimed until 2004. His silence when otherwise affirmatively speaking constitutes negative evidence. Given inconsistencies in his statements, the Veteran's credibility is reduced and his statements are of limited probative value in establishing chronicity and continuity of symptomatology. Accordingly the Board finds the 31 year gap between separation from active service and the first complaint of foot problems, combined with the negative nexus opinion offered by a VA examiner in July 2009 to be more probative than the Veteran's statements alleging continuity. Absent evidence, to include a medical nexus, relating the Veteran's bilateral hallux valgus and hammertoes to active service, the Board finds that service connection for this disability is not warranted. Left Hip The Veteran has claimed entitlement to service connection for a left hip disorder, as secondary to residuals of his service connected left knee injury. Except as provided in 38 C.F.R. § 3.300(c), a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). This includes any increase in disability (aggravation) that is proximately due to or the result of a service connected disease or injury. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused or aggravated by service. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). When aggravation of a Veteran's non- service-connected condition is proximately due to or the result of a service-connected condition, such Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Id. Effective October 10, 2006, the section heading of 38 C.F.R. § 3.310 was retitled "Disabilities that are proximately due to, or aggravated by, service-connected disease or injury." Paragraph (b) of 38 C.F.R. § 3.310 was redesignated as paragraph (c), and a new paragraph (b) was added, which states: (b) Aggravation of nonservice-connected disabilities. Any increase in severity of a nonservice- connected disease or injury that is proximately due to or the result of a service- connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. In a September 1971 rating decision, the RO granted service connection for residuals of a left knee injury. In November 2003, the Veteran submitted a claim of entitlement to service connection for a left hip disorder. In May 2003, the Veteran reported left leg numbness and weakness involving the left hip. In July 2003, the Veteran reported a two year history of pain in the left buttocks, progressive in nature, and sometimes radiating to the left thigh. There was no weakness or sphincteric defects. On examination, the Veteran had isolated left piriformis contracture with positive isolation signs. He had no motor or sensory lower extremity issues In September 2003 he reported that hip pain had begun two and a half years prior, when he landed on his left foot, jamming his femur into his hip joint. He reported that prior to landing on his left lower extremity, he had no problems with his hip. An October 2003 report indicated chronic piriformis syndrome on the left side. This was treated with injection, which helped, but pain began to return after two and a half weeks. On VA examination in December 2003, the Veteran reported that during service he fell off a tank and landed on his left leg. He reported pain in the region of the left iliac crest of the buttocks area. This pain, which had been extremely discomforting, especially in the past three to four years, was daily, constant, and caused weakness of the left leg. The diagnosis was of left piriformis muscle syndrome, but the hip was otherwise radiographically normal. The examiner opined that symptoms were not related to the anatomical left hip, but were likely related to piriformis muscle syndrome and abnormalities of the spine. Regardless of it's etiology, the examiner stated that the Veteran's left hip pain was not caused by his service connected left knee injury. An April 2004 x-ray revealed an innocent femoral neck herniation pit and the Veteran gave a history indicating a fall. In an April 2004 statement, the Veteran reported that his knee hurt when he bent at the hip and that he was unable to sleep. An August 2005 letter from the Veteran's primary care provided indicated her opinion that the Veteran's left hip pain was due to piriformis syndrome, which she attributed to the Veteran's left knee arthritis. In July 2006, the Veteran indicated that his left hip pain was feeling better after starting pool therapy. The pain was described as five out of ten with amitriptyline. The pain was sharp and nagging, but he largely was able to ignore it when on medication. In August 2006, the Veteran underwent a VA examination of his hip. The Veteran claimed that hip pain had its onset in 1989, but that the pain had been intermittent with remissions since initial onset. The examiner diagnosed the Veteran with no degenerative joint disease, serum positive RF with negative x-rays, and no definite rheumatoid arthritis. The examiner opined that the Veteran's left hip symptoms were not as a result of his left knee arthritis. In July 2009, the Veteran underwent a VA examination. Following his examination and a review of the claims file, the examiner began by noting that there was no current evidence of myositis ossificans of the left knee and that piriformis syndrome had resolved. The only relevant diagnosis was mild degenerative joint disease of the left knee with normal range of motion. The examiner opined that resolved piriformis syndrome was not related to any service connected disability, and began in 2002 following a jamming injury. The examiner considered the possibility that the Veteran's hip problems were associated with a 1989 motor vehicle accident but noted that this was not related to service. The Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for a left hip disorder, including as secondary to a service-connected left knee disorder. The Board notes initially that the Veteran is competent to give evidence about what he has experienced. See Layno v. Brown, 6 Vet. App. 465 (1994). In this case, the Veteran's hip pain is capable of lay observation. Accordingly, the Veteran's statements constitute competent evidence. In considering the credibility of such evidence, however, the Board notes that the Veteran has been inconsistent in his reports of onset. Specifically, he has endorsed an onset of left hip pain in 1969, in 1989 and sometime between 2001 and 2003. Given inconsistencies in the record, the Veteran's credibility is reduced and his statements are of limited probative value in establishing chronicity or continuity of symptomatology, and in establishing that left hip pain began following an in- service fall from a tank. Of greater probative value are the objective statements of non-biased examiners which indicate that the Veteran's left hip pain is not related to any service connected disorder, including his left knee. The Board has been presented with conflicting assessments of the Veteran's etiology of the Veteran's left hip pain. Specifically, his primary care provider has endorsed that piriformis syndrome is due to the Veteran's left knee. The Veteran's primary care provider failed to support such a conclusion with a rationale, however. Such an examination report is considered "non-evidence" and generally is inadequate for VA rating purposes. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board notes that the opinions of VA examiners were based on thorough physical examinations of the Veteran, including, in the case of VA examinations conducted in 2006 and 2009, review of the claims file. Given that these opinions were well documented and supported by rational, the Board finds them to be of greater probative value that than that of the Veteran's primary care provider. Thus, the Board finds that the competent medical evidence of record does not support the Veteran's assertions that he incurred a left hip disorder during active service. Nor does the competent medical evidence, to include a nexus opinion, support the Veteran's assertion that his service- connected left knee disorder aggravated his left hip disorder. Thus, the Board finds that service connection for a left hip disorder, including as secondary to a service- connected left knee disorder, is not warranted. As the preponderance of the evidence is against the Veteran's claims, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for bilateral pes planus is denied. Entitlement to service connection for bilateral hallux valgus and hammertoes is denied. Entitlement to service connection for a left hip disorder, including as secondary to a service-connected left knee disorder, is denied. ____________________________________________ MICHAEL T. OSBORNE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs