Citation Nr: 1107331 Decision Date: 02/23/11 Archive Date: 03/04/11 DOCKET NO. 05-36 031 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a right foot disorder, to include pes planus and shin splint. 2. Entitlement to service connection for a left foot disorder, to include pes planus and shin splint. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Terrence T. Griffin INTRODUCTION The Veteran had active service from July 1972 to July 1975. This matter came before the Board of Veterans' Appeals (Board or BVA) on appeal from March 2005 and April 2006 rating decisions by the Department of Veterans Affairs (VA) Waco, Texas, Regional Office (RO). The March 2005 rating decision denied service connection for right and left foot disorders, characterized as bilateral foot problems. The April 2006 rating decision denied the Veteran service connection for right and left shin splints, characterized as bilateral shin splints. In March 2009, the Veteran testified before the undersigned Acting Veterans Law Judge, at the local RO, in Waco, Texas, and the present appeal was previously remanded by the Board for further development, in July 2009. In the interest of clarity and to remain consistent with the July 2009 Remand, the Board has recharacterized this issues on appeal, as reflected on the title page. The Board finds that the January 2010 VA examination suggests that the Veteran's service connected right hand and right foot fungal infection may have increased in severity since last examined, reasonably raising a claim for an increased disability evaluation; however, this claim has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran's right foot disability, to include pes planus and shin splint, was not present in service or until many years thereafter and is not related to service or to an incident of service origin. 2. The preponderance of the evidence shows that the Veteran's left foot disability, to include pes planus and shin splint, was not present in service or until many years thereafter and is not related to service or to an incident of service origin. CONCLUSION OF LAW 1. A right foot disability, to include pes planus and shin splint, was not incurred in or aggravated by service and may not be so presumed. 38 U.S.C.A. §§ 1110, 1154(a), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2010). 2. A left foot disability, to include pes planus and shin splint, was not incurred in or aggravated by service and may not be so presumed. 38 U.S.C.A. §§ 1110, 1154(a), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Assist and Notify VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claim submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The notice requirements were accomplished in October 2004, November 2005, March 2006 and January 2010 letters, which were provided before the adjudication and subsequent readjudication of the Veteran's claims. The Board also finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issues has been obtained. The Veteran's service, VA and private treatment records have been obtained and he has been provided appropriate VA examination in connection with his claims. What is more, the Veteran has not indicated there are any additional records VA should seek to obtain on his behalf and his request for a hearing has been honored. Further, after reviewing the record, the Board finds that the RO has fully, or at a minimum, substantially, complied with the Board's July 2009 Remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). Therefore, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claims, and no further assistance to develop evidence is required. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires a Veterans Law Judge or an Acting Veterans Law Judge (AVLJ) who chairs a hearing to fulfill two duties, as to comply with this regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the March 2009 hearing, the AVLJ failed to explicitly note the elements of the claims that were lacking; however the Veteran and his representative demonstrated actual knowledge of the deficient elements of the claims, as reflected in the Veteran's sworn testimony and his representative's presentation and questions. Further, the AVLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or outstanding, which might substantiate the claims, and both the RO and the Board have made necessary attempts to obtain any records identified by the Veteran or the record. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor has either identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the AVLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claim based on the current record. Service Connection Claims The Veteran seeks service connection for right and left foot disabilities. Specifically, he recounts experiencing the in- service onset of pes planus, shin splints and pain, bilaterally, and that such symptoms have continued since he separated from service. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post- service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact- finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves- Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). At the outset, the Board notes that the medical evidence confirms presence currently diagnosed right and left foot conditions. See "Assessment," VA Examination Rpt., Oct. 30, 2010. Thus, the determinative issue in the present matter is whether the Veteran's current right and/or left foot disabilities, to include pes planus and shin splints, are related to active service, and the Board will center the analysis to follow on this issue. Both the Veteran's March 1971 enlistment and June 1975 separation examinations reflect no abnormalities associated with his (i) feet, (ii) lower extremities or (iii) musculoskeletal system. Aside from multiple fungal and dermatological conditions (addressed as part of separate service connection claims), the Veteran's service treatment record is negative of any in-service right and/or left foot complaints and/or treatment. Further, on his July 1975 separation Health Questionnaire, the Veteran denied any history of (i) arthritis, (ii) inflammatory rheumatism or (iii) "any disease, condition, or problem." In connection with another service connection claim, the Veteran was provided a January 2005 VA examination. At this time, the examiner reported that the Veteran "did not receive treatment for any structural foot problems and [did] not complain of any at the present time." At this time, the examiner did not diagnose any structural foot condition(s). An April 2009 private podiatry treatment record is the first post-service medical evidence of the Veteran's foot related complaints. During this treatment, the Veteran indicated that his foot pain was associated with pushing/pulling objects and walking long distances. At this time, the private medical professional diagnosed bilateral pes valgo planus and bilateral tibial tendonitis and provided the Veteran with custom foot orthotics to manage the conditions. Nonetheless, this treatment record, as well as others generated at this facility, do not suggest or opine, to include from the Veteran, that any diagnosed condition (i) had been continually present since the Veteran separated from service or (ii) was related to military service. Pursuant to the Board's remand instructions, the Veteran was provided a January 2010 VA orthopedic examination. The examination interview reflects the Veteran's account of the in- service onset and treatment of right and left foot symptomatology (i.e. pain, fallen arches and shin splints), as well as his indication that over time these symptoms increased in severity and frequency. Based on the examination finding, the examiner diagnosed mild chronic bilateral pes planus. Thereafter, the examiner, after acknowledging and considering the Veteran's account of in-service and post-service treatment and symptomatology and the medical evidence of record, to include current examination findings, opined no post-service right or left foot disability was likely related the Veteran's service. In evaluating the present claims, the Board has considered the numerous other VA and private treatment records associated with the claims folder, although not all have been detailed above. Nonetheless, these records are negative of any right or left foot complaints, treatments or suggestion/opinion that any foot disability is related to the Veteran's military service or any incident therein. Merits The principal evidence linking current right foot and left foot disabilities to military service are the Veteran's own statements. However, in the present circumstance, the Veteran does not have the training or expertise to provide a competent medical opinion to this effect. See Jandreau, 492 F.3d at 1376- 77. Further, even if the Veteran was considered competent to provide such an opinion, the Board finds that his current account of having in-service right and left foot symptomatology (i.e. pain, fallen arches and shin splints) and of experiencing right and left foot symptoms since separation is not credible, given the other evidence of record. As such, his statements are insufficient to provide the necessary nexus between his military service and any right foot and/or left foot disability. The Federal Circuit held in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) that the lack of contemporaneous medical records does not, in and of itself, render lay testimony not credible. Id. at 1336. As a finder of fact, though, the Board may weigh the absence of contemporaneous records when assessing the credibility of the lay evidence. In this role, the Board, when considering whether lay evidence is satisfactory, properly considers any internal inconsistencies, facial plausibility and consistency of provided statements with other evidence submitted on behalf of the Veteran. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604(Fed. Cir.1996). Without question, the Veteran is competent to provide an account of in- and post-service foot symptomatology (i.e. pain, fallen arches and shin splints); however, in this case, the Board finds his account of having continuity of right and left foot problems since service to be inconsistent with the evidence of record and thus not credible. In reaching this determination, the Board notes that the Veteran testified at a March 2009 Board hearing that he experienced and was treated for bilateral foot symptomatology in-service; however, he denied any such history on his July 1975 separation Health Questionnaire and at a January 2005 VA examination. At his March 2009 hearing, the Veteran also testified that he sought VA treatment for his right and left foot symptomatology in 1977, approximately two years after separation. Nonetheless, appropriate inquiry revealed no VA treatment, prior to March 1990, and these treatment records document no complaints and/or treatment for any right or left foot condition. In fact, an April 2009 private treatment record is the first post-service medical evidence of the Veteran's treatment for any foot related symptomatology, but these records are negative of any opinion or suggestion which might weigh in favor of the Veteran's claims or account of symptomatology. Ultimately, there is no medical evidence of any right or left foot complaints and/or treatment for a period of over two decades after the Veteran separated from service, and there are no contemporaneous lay statements reflecting symptoms for many years following discharge. Further, prior to seeking VA compensation, the Veteran's treatment records are negative of any account of experiencing right or left foot symptoms in-service and/or since separation. What is more, the Veteran's in- and post-service account of symptomatology, or lack thereof, to medical professionals is inconsistent with his sworn March 2009 Board testimony, as to the same matter. The Board finds these factors together to be highly probative evidence that there has not been a continuity of right and/or left foot symptomatology and weigh heavily against any contention to the contrary. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed.Cir.2006) ("[T]he Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc."); see also Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed.Cir.2010) (elucidating that VA must consider lay evidence, but may give it whatever weight it concludes the evidence is entitled to); Jandreau, 492 F.3d at 1376-77 (stating "[w]hether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board"). Thus, in light of the lack of any record of treatment for right or left foot problems for more than two decades almost more than two decades after service and the internal inconsistency of his accounts, the Board finds any of the Veteran's reports of continuity of right and/or left foot problems since service are not credible, and thus of no probative value. See Dalton; Caluza. In any service connection claim, competent medical evidence and opinions are highly probative in establishing service connection. Significantly, the only medical opinion squarely addressing the determinative issues weighs against the Veteran's service connection claims. The October 2010 VA examiner opined that no foot disorders were likely related to the Veteran's military service. Significantly the October 2010 VA orthopedic examination report indicates that the examiner's opinion was based on acceptance of the Veteran's account of in- and post- service occurrence/symptomatology and all medical evidence of record, to include current examination findings. What is more, the opinion provided clear medical reasoning and logic and is generally consistency with other pieces of medical evidence of record. These factors taken together make the October 2010 VA examination report and nexus opinion highly probative evidence weighing against the Veteran's claims. See Nieves-Rodriguez; see also Stefl. In sum, although the Veteran is competent to report having in- service and continual post-service right and left foot symptomatology (i.e. pain, fallen arches and shin splints), the preponderance of the evidence is against the claims, as the Board finds this account not credible. Additionally, the highly probative October 2010 VA examiner's opinion relied on acceptance of the Veteran's account of in- and post-service occurrence/symptomatology and all medical evidence of record, to include current examination findings, to support the negative nexus opinion. As the preponderance of the evidence is against the Veteran's claims, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). As such, service connection for right and left foot disabilities, to include pes planus and shin splints, must be denied. ORDER Service connection for a right foot disorder, to include pes planus and shin splint, is denied. Service connection for a left foot disorder, to include pes planus and shin splint, is denied. ______________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs