Citation Nr: 1036404 Decision Date: 09/27/10 Archive Date: 09/30/10 DOCKET NO. 09-00 910 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for a skin disability. 2. Entitlement to service connection for bilateral foot disability, to include plantar fasciitis. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and M.T. ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The Veteran had active service from March 1983 to July 1983 and from June 2004 to November 2005. These matters come before the Board of Veterans' Appeals (BVA or Board) from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In April 2010 the Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO. Evidence pertinent to the matters on appeal was received contemporaneously with the Veteran's April 2010 Board hearing. The Veteran has waived initial RO consideration of this evidence. While this case was held open for 30 days in order to allow the Veteran adequate opportunity to submit additional information (April 2010 Board hearing transcript, page 19), the Board notes that no such information has been received. FINDINGS OF FACT 1. A chronic skin disability was initially demonstrated years after the Veteran's first period of service, and has not been shown by competent clinical, or competent and credible lay, evidence of record to be etiologically related to his first period of service. 2. Clear and unmistakable evidence of record establishes that psoriasis and eczema existed at the time of entrance of the Veteran's second period of active service, and was not aggravated by his second period of active service. 3. There has been no demonstration by competent clinical, or credible lay, evidence of record that bilateral foot disability, including plantar fasciitis, was present in either period of service, or foot arthritis demonstrated to a compensable degree within a year of discharge from either period of service, or that there is a nexus or link between current foot disability and either period of the Veteran's active service. CONCLUSIONS OF LAW 1. A chronic skin disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113, 1131, 1137, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309, 3.385 (2009). 2. Bilateral foot disability, including plantar fasciitis, was not incurred in, or aggravated by, active service, nor may it be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies in the instant case. Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and 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). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). By correspondence dated in November 2007 the Veteran was informed of the evidence and information necessary to substantiate the claims, the information required of the appellant to enable VA to obtain evidence in support of the claims, the assistance that VA would provide to obtain evidence and information in support of the claims, and the evidence that should be submitted if there was no desire for VA to obtain such evidence. In the November 2007 letter, the Veteran received notice regarding the assignment of a disability rating and/or effective date in the event of an award of VA benefits. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice was completed prior to the initial AOJ adjudication of the claims. Pelegrini. Duty to Assist Service treatment records are associated with the claims file, as are VA and private medical records. The Veteran has undergone VA examinations that addressed the medical matters presented by this appeal. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the opinions of the December 2007 (skin) and December 2009 (feet) VA examiners are more than adequate. The VA examiners elicited information concerning the Veteran's military service. The opinions considered the pertinent evidence of record, and included a specific reference to the Veteran's service treatment records. Supporting rationale was provided for the opinions. Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Veteran has not referenced any other pertinent, obtainable evidence that remains outstanding. VA's duties to notify and assist are met, and the Board will address the merits of the claims. Service connection is warranted if it is shown that a veteran has a disability resulting from an injury incurred or a disease contracted in active service, or for aggravation of a preexisting injury or disease in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for arthritis may be presumed, subject to rebuttal, if manifest to a compensable degree within the year after active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. § 3.307, 3.309. If there is no evidence of a chronic condition during service, or during an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim. See 38 C.F.R. § 3.303(b). See Savage v. Gober, 10 Vet. App. 488, 495-498 (1997). In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). The Veteran asserts that he has the disabilities on appeal as a result of his second period of active duty service. I. Disability of the feet The Veteran's service treatment records from his first period of service are negative for any recorded evidence of treatment or diagnosis of any foot disability. As for his second period of service, an October 2005 Report of Medical Assessment reveals that the Veteran complained of sore and "hurt" feet. An October 2007 VA podiatry note reveals that the Veteran complained of bilateral foot pain. The Veteran essentially indicated that he had not had calluses of the heels prior to his service in Iraq. Examination revealed pain in the midfoot region, bilaterally. The assessment included feet pain and osteoarthritis of the midfoot, bilaterally. A December 2007 VA podiatry record noted that the pain in the midfoot region had almost completely resolved. The assessment included plantar fasciitis, bilateral. Service comrade lay statements received in January 2008 asserted that the Veteran had complained of foot pain prior to and during his deployment to Iraq. An October 2009 VA podiatry record notes that the Veteran had had some left foot Achilles tendonitis "in the last couple of weeks that has been fairly painful." At a December 2009 VA feet examination, the Veteran essentially indicated that he had not had foot problems prior to his deployment to Iraq in 2004. The assessments included plantar fasciitis, tiny bilateral calcaneal spurs, mild osteopenia, and mild degenerative joint disease of the feet. The December 2009 VA examiner opined that the Veteran's bilateral foot condition was not due to or caused by the Veteran's military service. While the Veteran made a complaint of foot pain near the end of his second period of active service (October 2005 Report of Medical Assessment), the medical evidence fails to indicate that the Veteran had any chronic foot disability during his second period service. A December 2005 VA examination (conducted shortly following the Veteran's discharge from his second period of service) revealed no complaints or diagnosis related to any disability of the feet. A June 2006 VA general medical examination revealed that there were no left foot or right foot symptoms, and the Veteran's feet were described as normal. Significantly, the Board observes that no health professional, VA or private, has related any disability of the feet to the Veteran's active service. The Board here notes that the August 2008 letter from a VA podiatrist does not link the Veteran's feet disability to his active service. The Board has considered medical treatises submitted by the Veteran in support of his contentions. The articles, however, are too general in nature to provide, alone, the necessary evidence to show that the Veteran suffers from disability of the feet as a result of his active service. Sacks v. West, 11 Vet. App. 314, 316- 17 (1998). The medical treatise must provide more than speculative, generic statements not relevant to the Veteran's claim but must discuss generic relationships with a degree of certainty for the facts of a specific case. Wallin v. West, 11 Vet. App. 509, 514 (1998). The Veteran is competent (as are the service comrades) to provide testimony and statements concerning factual matters of which he has first hand knowledge (i.e., experiencing foot pain problems during or after service). Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Further, under certain circumstances, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Board again notes that foot disability was not shown until nearly two years following service, and no such disability was noted or complained of at December 2005 and May 2006 VA examinations, thus rendering the Veteran's assertions concerning continuity of symptomatology as less than credible. Based on the foregoing, the Board finds that the preponderance of the evidence of record is against service connection for disability of the feet. II. Skin disability VA law provides that a veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C.A. § 1111. The presumption of soundness attaches only where there has been an induction examination during which the disability about which the veteran later complains was not detected. The regulations provide expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," and that "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions." 38 C.F.R. § 3.304(b). The law further provides that, if a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service incurrence for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder. In that case, the provisions of 38 U.S.C.A § 1153 and 38 C.F.R. § 3.306 apply, and the burden falls on the veteran to establish aggravation. Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If a presumption of aggravation under section 1153 arises, due to an increase in a disability in service, the burden shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease." 38 U.S.C. § 1153; 38 C.F.R. § 3.306; Jensen, 19 F.3d at 1417; Wagner v. Principi, 370 F. 3d 1089, 1096 (Fed. Cir. 2004). A skin disability was not noted at the time of examination for entrance into the Veteran's first period of service. Further, a review of the service treatment records reveals that no skin disability was demonstrated during the first period of service, and there is no competent medical opinion linking skin disability to the Veteran's first period of service. The Board observes that the Veteran has not claimed that he had any skin disability during his first period of service. In sum, the preponderance of the evidence is against service connection for a skin disability related to the Veteran's first period of service. A skin disability was not noted at the time of the Veteran's second period of active service. As such, the presumption of soundness as to a skin disability attaches. While a skin disability was not noted at the time of examination for entrance into the Veteran's second period of active service, a finding of "active psoriasis" was noted on June 8, 2004, merely three days following the Veteran's entrance to service. Further, a January 1987 Army reserves examination noted eczema of the elbows, and a December 2005 VA examination noted that the Veteran reported a 15 year history of psoriasis of the elbows and knees. As such, the record clearly and unmistakably establishes that the Veteran had psoriasis and eczema prior to June 1, 2004, the beginning of his second period of active service. Additionally, clear and unmistakable evidence establishes that the pre-existing psoriasis and eczema did not undergo any increase in service. Other than the June 4, 2004 record, service treatment records reveal no indication that the Veteran complained of or was treated for any skin problems during service. In view of the foregoing, the Board finds that competent evidence of record clearly and unmistakably shows that the Veteran had a pre-existing skin disability prior to service that was not aggravated by service. 38 U.S.C.A. § 1111. The Veteran's service medical records do not reveal that pre- existing skin disability increased in severity during service. As noted, skin disability, other than shortly after entering service, was not complained of during service. While a service separation examination for the second period of service was not undertaken, the Board notes that a December 2005 VA evaluation, conducted shortly following service, although noting that the Veteran had some psoriatic patches with some crusting and scaliness on his elbows and knees, indicated that the condition "appeared stable." In short, there is no evidence suggesting that the Veteran's skin disability was aggravated by active service. Accordingly, service connection for skin disability is not warranted. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. The Board notes that the Veteran is competent to provide testimony and statements concerning experiencing or observing skin conditions. The Veteran's assertions as to a relationship to service, however, are not credible in light of the objective medical evidence, such as the lack of complaints of skin problems in service, including the October 2005 Report of Medical Assessment that revealed no complaints related to a skin disability. To the extent that the Veteran may be claiming that the disabilities on appeal are the result of combat, the Board notes that the provisions of 38 U.S.C.A. § 1154(b) do not obviate the requirement that a veteran must submit medical evidence of a causal relationship between his disability on appeal and service. Libertine v. Brown, 9 Vet. App. 521, 524 (1996). That is, even assuming combat status, the Veteran must provide satisfactory evidence of a relationship between his service and the disorders on appeal. He has not done so in this case. ORDER Service connection for bilateral foot disability, to include plantar fasciitis, is denied. Service connection for a skin disability is denied. ____________________________________________ U.R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs