Citation Nr: 1110941 Decision Date: 03/18/11 Archive Date: 03/30/11 DOCKET NO. 99-13 534A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California THE ISSUE Entitlement to service connection for bone spurs of both feet. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD C. L. Wasser, Counsel INTRODUCTION The Veteran served on active duty from October 1957 to December 1960, and from March 1961 to February 1978. This case came to the Board of Veterans' Appeals (Board) on appeal from a July 1998 decision by the RO in Los Angeles, California that in pertinent part, denied service connection for bone spurs, bilateral feet. In February 2001, the Board remanded the issue of service connection for bone spurs of the feet for further development. The case was subsequently returned to the Board, and in a November 2008 decision, the Board denied service connection for bone spurs of the feet, residuals of excised melanoma, and psoriasis, granted a 40 percent rating for a service-connected low back disability, and granted a 20 percent rating for neurological symptoms of the left lower extremity. The Veteran then appealed to the United States Court of Appeals for Veterans Claims (Court). In a December 2009 joint motion to the Court, the parties (the Veteran and the VA Secretary) requested that the Board decision be vacated as to the issue of service connection for bone spurs of the feet, and the issue remanded. The appellant abandoned his appeal as to the issues of service connection for residuals of excised melanoma and psoriasis, and did not appeal the issues relating to the ratings assigned for the low back disability and left lower extremity. These issues are therefore not before the Board. In a December 2009 Court order, the joint motion was granted, the Board's November 2008 decision was vacated only as to the issue of service connection for bone spurs of the feet, and that issue was remanded. The case was returned to the Board, and in August 2010, the Board remanded the case to the RO, largely for a VA examination. The case was subsequently returned to the Board. The Board is satisfied that there has been substantial compliance with the remand directives (to the extent possible) and the Board may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT The evidence of record indicates that currently diagnosed bone spurs of both feet are not the result of disease or injury incurred in military service. CONCLUSION OF LAW The Veteran's bone spurs of both feet were not incurred in or aggravated by active military service, nor may they be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, & 5126 (West 2002 & Supp. 2010)). The VCAA imposes obligations on VA in terms of its duty to notify and to assist claimants. Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board acknowledges that complete notice was not provided until after the initial unfavorable RO decision in July 1998. Since the VCAA was not enacted until November 2000, furnishing the veteran with VCAA notice prior to the initial adjudications of the claim in 1998 was clearly both a legal and a practical impossibility. Indeed, VA's General Counsel has held that the failure to do so under such circumstances does not constitute error. See VAOGCPREC 7-2004. Additional notice was sent by letters dated in July 2001, January 2007, and August 2010, and the claim was readjudicated in a January 2011 supplemental statement of the case. Mayfield, 444 F.3d at 1333. VA has obtained service treatment records, assisted the appellant in obtaining evidence, afforded the appellant physical examinations, and obtained medical opinions as to the etiology and severity of disabilities. This appeal was remanded in August 2010 in order to schedule the Veteran for a VA examination to determine the etiology of the current bone spurs of the bilateral feet. By a letter to the Veteran dated in August 2010, the Veteran was informed he would be scheduled for a VA examination. The August 2010 letter informed him of the consequences of failure to report for VA examination. A VA examination was scheduled, and the Veteran cancelled the examination. A November 2010 report of contact reflects that a VA employee spoke with the Veteran regarding the cancelled VA examination, and the Veteran said he was recovering from lung cancer surgery. When asked if he wanted the examination to be rescheduled, he said no, and stated that VA could proceed with the adjudication of his appeal. In January 2011, the Veteran was sent a supplemental statement of the case which noted he had failed to report for a scheduled VA examination, and that he had declined an opportunity for a rescheduled examination. As the claim is an original claim for service connection the Board has proceeded to adjudicate the Veteran's claim based on the evidence of record. See 38 C.F.R. § 3.655 (2010). By a statement dated in January 2011, the Veteran indicated that he had received the supplemental statement of the case and said he had no additional evidence to submit. All known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. Analysis The veteran contends that he has bone spurs of the feet as a result of trauma from parachute jumps in service. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Moreover, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service personnel records reflect that the Veteran served in Vietnam during the Vietnam era, and was awarded a Purple Heart, a Combat Infantryman Badge, and a Parachute Badge. The Veteran's service treatment records reflect that in November 1961, he was treated for hyperhidrosis of the feet. During a January 1972 hospitalization for abdominal pain, orthopedic specialists examined the Veteran and found no evidence of any orthopedic problem at the present time. In January 1977, he was treated after he kicked a bench with his bare foot. On examination, there was slight ecchymosis of the left great toe. An X-ray study of the left great toe was negative. The diagnostic impression was a contusion of the toe. The Veteran's extensive service treatment records are negative for any other foot injury, and are negative for a diagnosis of a chronic foot disability. On physical examination in January 1977, the Veteran's feet were clinically normal. In a November 1977 Report of Medical History, the Veteran denied having bone, joint or other deformity, or foot trouble. On November 1977 pre-retirement physical examination, his feet were noted to be normal. In his original claim for VA compensation in March 1978, the Veteran reported several disabilities, but did not claim service connection for a foot disability. Significantly, during a VA orthopedic examination in May and June 1978, shortly after he left military service, the veteran did not complain of foot problems, and none were identified, despite a very thorough examination by the Chief of Orthopedic Services at a VA hospital. The Veteran did complain of other orthopedic disabilities, specifically, the elbow, knees, and back. On VA examination in August 1979, the Veteran complained of a back disability, but did not complain of a foot disability. On examination, he had free motion of the ankles, and was able to walk on his toes. The examiner did not identify a foot disability. A thorough examination in October and November 1980 by another VA orthopedic specialist was similarly negative with respect to foot problems. VA outpatient treatment records dated from 1985 to 1997 are negative for complaints or treatment of a foot disability, and reflect treatment for several other conditions. In an August 1988 written statement, the Veteran identified several disabilities which he related to military service, and he did not report a foot disability. The Veteran's medical records are negative for bone spurs of the feet until 1997. A left heel spur was initially diagnosed in 1997. An April 1997 private medical record reflects that the Veteran complained of left heel pain; the diagnostic assessment was rule out heel spur. An X-ray study showed spurs. In June 1997, the Veteran again complained of heel pain; the diagnosis was plantar fasciitis. The Veteran was referred to a podiatrist for a shoe insert. An August 1997 treatment report from M.I.C., D.P.M., notes that the Veteran's past medical history included "body injuries former paratrooping." That statement was apparently based on the Veteran's report. The Veteran complained of left heel pain for three months. The diagnostic impression was PCHS/PF (i.e., plantar calcaneal heel spur/plantar fasciitis), left. In his November 1997 claim for service connection for bone spurs of the feet, the Veteran asserted that in September 1997, his private physician, Dr. C., diagnosed bone spurs, and noted that foot trauma probably occurred during military service due to trauma associated with military duties, including airborne duties and related duties requiring traumatic foot landings from high places (helicopter, tanks, etc.). He reiterated his assertions in February 1998. At an April 1998 VA examination, the Veteran reported that he had intermittent pain over the arch areas of both feet during the past 15 years. The pertinent diagnosis was bilateral arch area pain, cause undetermined. In August 2001, the Veteran reiterated his assertions regarding his bone spurs of the feet, and added, "It is my contention that this condition, albeit occurring long after service, is related to military service as no subsequent events since that service were traumatic." At a July 2003 VA examination, the Veteran reported that the date of onset of his bone spurs was in 1976. He said he was told his bone spurs were due to foot trauma, and complained of pain and weakness of both feet. The examiner diagnosed bilateral calcaneal bone spurs based on current X-ray studies of the feet. The examiner did not provide an opinion as to the etiology of this condition. Subsequent VA and private medical records do not reflect treatment for bone spurs of the feet, and relate to treatment for several other medical conditions. In August 2010, the Board remanded the case to the RO, primarily for a VA examination. The Veteran cancelled this examination due to unrelated health problems, and said that he did not want the examination to be rescheduled. Hence, evidence that might have been obtained in a VA examination is not of record due solely to the Veteran's actions. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (holding that the duty to assist is not always a one-way street and if a Veteran desires help with his claim he must cooperate with VA's efforts to assist him). In this decision, the Board has considered all lay and medical evidence as it pertains to the issue. 38 U.S.C.A. § 7104(a) ("decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record"); 38 U.S.C.A. § 5107(b) (VA "shall consider all information and lay and medical evidence of record in a case"); 38 C.F.R. § 3.303(a) (service connection claims "must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence"). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, 1 Vet. App. at 57. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (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). The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan, 451 F.3d at 1337 (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr, 21 Vet. App. at 303 ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). As part of the current VA disability compensation claim, the Veteran has at times asserted that his symptoms of calcaneal (heel) bone spurs have been continuous since service. He asserts that he continued to experience foot/arch symptoms after he was discharged from the service. In this case, after a review of all the lay and medical evidence, the Board finds that the weight of the evidence demonstrates that the Veteran did not experience continuous symptoms of bilateral bone spurs of the feet after service separation. Further, the Board concludes that his assertion of continued symptomatology since active service, while competent, is not credible. The Board finds that the Veteran's more recently-reported history of continued symptoms of bone spurs of the feet since active service is inconsistent with the other lay and medical evidence of record. Indeed, while he now asserts that his disorder began in service, in the more contemporaneous medical history he gave at the service separation examination, he denied any history or complaints of symptoms of a foot disability. Specifically, the service separation examination report reflects that the Veteran was examined and his feet were found to be clinically normal. His in-service history of symptoms at the time of service separation is more contemporaneous to service, so is of more probative value than the more recent assertions made many years after service separation. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding a Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements asserting different etiology); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board decision giving higher probative value to a contemporaneous letter the veteran wrote during treatment than to his subsequent assertion years later). Moreover, the Veteran did not mention foot problems during two VA examination in the years immediately following service, and none were found by examining physicians. The post-service medical evidence does not reflect complaints or treatment related to bone spurs of the feet for approximately 19 years following active service. The Board emphasizes the multi-year gap between discharge from active duty service (1978) and initial reported symptoms related to bone spurs of the feet in approximately 1997 (nearly a 20-year gap). See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability). The Board notes that the Veteran sought treatment for a myriad of medical complaints since discharge from service, including a back disability, a knee disability, an elbow disability, and a neck disability. Significantly, during that treatment, when he specifically complained of other problems, he never reported complaints related to the feet. Rucker, 10 Vet. App. at 73 (lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). When the Veteran sought to establish medical care with VA in 1985, he did not report the onset of foot symptomatology during or soon after service or even complain of any foot symptoms. When he first complained of foot pain in 1997, he reported foot pain for three months. Such histories reported by the Veteran for treatment purposes are of more probative value than the more recent assertions and histories given for VA disability compensation purposes. Rucker, 10 Vet. App. at 73. The Veteran filed a VA disability compensation claim for service connection for a back disorder in 1978, shortly after service, but did not claim service connection for bone spurs of the feet or make any mention of any foot symptomatology. He did not claim that symptoms of his current foot disorder began in (or soon after) service until he filed his current VA disability compensation claim. Such statements made for VA disability compensation purposes are of lesser probative value than his previous more contemporaneous in-service histories, and his previous statements made for treatment purposes. See Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the Veteran's statements, it may consider whether self-interest may be a factor in making such statements). During the recent VA compensation claim, the Veteran reported the onset of symptoms to different times. Specifically, although he has at times reported foot symptoms of long-standing, in August 2001, he said that his foot condition occurred long after service. These inconsistencies in the record weigh against the Veteran's credibility as to the assertion of continuity of symptomatology since service. See Madden, 125 F.3d at 1481 (Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Caluza, 7 Vet. App. at 512 (upholding Board's finding that a veteran was not credible because lay evidence about a wound in service was internally inconsistent with other lay statements that he had not received any wounds in service). The Board has weighed the Veteran's statements as to continuity of symptomatology and finds his current recollections and statements made in connection with a claim for VA compensation benefits to be of lesser probative value than his previous more contemporaneous in-service history and findings at service separation, the absence of complaints or treatment for years after service, his previous statements made for treatment purposes, and his own previous histories of onset of symptoms given after service. For these reasons, the Board finds that the weight of the lay and medical evidence is against a finding of continuity of symptoms since service separation. Moreover, there is no evidence of a chronic foot disability in service or for many years afterward. The first medical evidence of bone spurs of the feet is dated in 1997. There is no medical evidence linking the current disability with service. Although an August 1997 treatment report from Dr. C. contained the notation "body injuries former paratrooping," that statement was apparently based on the Veteran's own reporting of in-service injuries. There is no evidence that Dr. C. reviewed the Veteran's service treatment records. There is no medical opinion from Dr. C. specifically linking the current plantar calcaneal heel spur/plantar fasciitis with military service. Based as it is on the Veteran's own statement concerning in-service injuries, the opinion of Dr. C. lacks probative value. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (noting that the fact that the veteran's history is recorded in medical records does not transform it into a competent medical opinion); Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described). In this case, although Dr. C. referred to in-service injuries as a paratrooper, it is clear that this is merely a recitation of the Veteran's own contention. The Veteran's utterly negative medical history during and after service, was not mentioned. This statement thus carries no weight of probative value. Significantly, in this case there is no objective evidence of in-service foot injury and/or bone spurs. In short, there is no evidence of in-service disease or injury. The Board rejects the notion which has been impliedly presented by the Veteran that merely being a paratrooper allows for the presumption that the current bone spurs of the feet are related to such experiences. As noted above, in statements dated in November 1997 and February 1998, the Veteran related that Dr. C. had informed him that the heel spurs were probably caused by trauma to the feet, sustained during the course of his military duties. However, the Veteran's account of what a health care provider purportedly said, filtered as it is through a lay person's sensibilities, is not competent medical evidence. See Robinette v. Brown, 8 Vet. App. 69, 77 (1995). To the extent that the Veteran himself believes that his current bilateral bone spurs are related to trauma from parachute jumps in service, the Board finds that the Veteran is not competent to offer an opinion on a matter clearly requiring medical expertise. See Jandreau, 492 F.3d at 1372 (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Therefore, this is not a case in which the Veteran and his representative's lay beliefs alone can serve to establish any association between the claimed disability and his military service. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992); Moray v. Brown, 5 Vet. App. 211 (1993). In summary, the record fails to show competent and probative evidence of bone spurs of the feet in service or for many years thereafter, and the preponderance of the evidence is against a finding that this condition is due to or aggravated by service. Therefore, the Board finds that the preponderance of the evidence is against the claim, and the appeal must therefore be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. ORDER Service connection for bone spurs of both feet is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs