Citation Nr: 1111787 Decision Date: 03/24/11 Archive Date: 04/06/11 DOCKET NO. 08-35 067 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a right foot disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran (appellant) served on active duty from May 1981 to December 1984. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In August 2010, the Veteran appeared before the undersigned Veteran's Law Judge and gave testimony in support of his claim. A complete transcript is of record. FINDING OF FACT The Veteran was treated in service for a possible stress fracture of the right calcaneal. He does not have a right foot/ankle condition that is related to service. CONCLUSION OF LAW The criteria for service connection for a right foot disorder have been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). 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. 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 five 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. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in March 2007 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. There is no allegation from the Veteran that he has any evidence in his possession that is needed for full and fair adjudication of this claim. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. With respect to the Dingess requirements, the RO provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date in the March 2007 letter. With that letter, the RO effectively satisfied the remaining notice requirements with respect to the issue on appeal. Therefore, 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. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a Veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing an in-service event, injury, or disease, or manifestations of certain diseases during the presumptive period; (3) an indication that the disability or symptoms may be associated with service; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the types of evidence that "indicate" that a current disability "may be associated" with service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). First, the RO has obtained VA private treatment records and he was provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge in August 2010. Next, a specific VA medical opinion pertinent to the issue on appeal was obtained. Therefore, the available records and medical evidence have been obtained in order to make an adequate determination as to this claim. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. It is noted that the Veteran indicated that he had been treated by a private physician between 1984 and 1997. (See, RO hearing testimony). He testified that VA need not try to obtain the records and that he would do so himself. He did not submit an authorization to VA so that an attempt could be made to obtain records. Therefore, the Board finds that a remand to attempt to obtain any outstanding treatment records of the Veteran is not required. See Wood v. Derwinski, 1 Vet. App. 190. 192 (1991), Olson v. Principi, 3 Vet. App. 480, 483 (1992) (holding that "the duty to assist is not always a one-way street. If a Veteran (appellant) wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the purtative evidence."). Hence, no further notice or assistance is required to fulfill VA's duty to assist 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 for disability resulting from disease or injury incurred in or aggravated by service, and for some disorders, may be presumed if manifested to a compensable degree within the first post service year. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a), 3.307, 3.309. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also 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). A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993). The Veteran contends that service connection for a right foot disorder is warranted. He argues that his treatment in service eventually led to the current problems he has with the right foot. The Veteran's service treatment records show that at service entrance in January 1981, he denied any foot trouble, and clinical evaluation of the feet was normal. In May 1981, the Veteran was seen for a right ankle complaint of moderate swelling and tenderness. X-rays were noted to show no fracture and right ankle sprain was diagnosed. In July 1981, the Veteran complained of right heel pain for four days with no trauma. The assessment was, suspect stress fracture right calcaneous. He was referred to nuclear medicine for a scan and the impression was, increased focal uptake, medial aspect of the right calcaneous bone consistent with stress fracture. He was placed on restrictions. In August 1981, it was noted that he had a two week old stress fracture of the right calcaneous with no pain and no problems. In February 1982, he was seen for a sprained right ankle. At separation in December 1984, he denied foot trouble and any bone, joint or other deformity. He reported having fracture of the right heel in July 1981 from excessive marching. Clinical evaluation of the feet was normal. After service, the record first documents treatment for a right foot complaint in November 1997, when the Veteran reported to a private examiner, Dr. Daily, that he injured his ankle on November 7, 1997 playing basketball. He reported having a sharp pain in the right ankle posteriorly and difficulty walking since with swelling. He noted that he had no history of any previous problems. He reported that he was a fully active male with no other significant problems. He was found to have an Achilles tendon rupture and surgical treatment was planned and performed the next day. Follow-up continued thereafter and in April 1998, it was noted that he was doing very well with good strength and motion. The Veteran was examined by VA in September 2007. The claims file and medical records were reviewed. The Veteran reported having pain during marching in service in 1981 and later having problems after a basketball injury in 1997 when he had to have a tendon repaired. He complained of pain in the right calf in addition to the ankle and heel since then. The Veteran's history was documented and he was examined. It was noted that there was no evidence of abnormal weight bearing. Motion of the right ankle was reported as: dorsal flexion to 20 degrees, no pain; and plantar flexion to 45 degrees, no pain. The Veteran reported missing one week of work in the last twelve months after twisting his right ankle at work when he stepped into a hole. The diagnosis was, history of right ankle Achilles tendon rupture, status post repair; and history of stress fracture versus contusion of the right calcaneous; normal range of motion. The examiner commented that he did not see any right foot/ ankle disability, nor connection between questionable stress fracture in 1981 and tendon injury in 1997. The examiner stated that there was no evidence of a right foot/ankle disability, nor connection between possible calcaneal stress fracture and Achilles tendon rupture years after. It was the examiner's opinion that a right foot/ankle condition is not caused by or the result of questionable right calcaneal fracture. In a March 2009 statement, Dr. Daily reported that he treated the Veteran in 1997 for a right Achilles tendon rupture. He stated that the Veteran had Achilles tendon probably a tendonopathy related to unclear reasons over time that coalesced into the Achilles tendon rupture. He noted that there were questions related to the fracture in 1981 and the Achilles. The Dr. stated that it was certainly tough to completely eliminate that possibility and that it clearly was a little bit difficult to document with intervening issues. He went on to state that there was some question as to how this was related to the previous events. The doctor said this was something he clearly discussed with the Veteran without any previous documentation through VA and that it would be tough to really pin a connection between the two events although it is certainly a possibility based on his pre-existing symptoms in terms of his Achilles tendon. It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same. Evans v. West, 12 Vet. App. 22, 30 (1998). With regard to medical evidence, an assessment or opinion by a health care provider is never conclusive and is not entitled to absolute deference. Miller v. West, 11 Vet. App. 345, 348 (1998). Further, a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty. Bloom v. West, 12 Vet. App. 185, 187 (1999). The Board is not bound to accept any opinion (from a VA examiner, private physician, or other source) concerning the merits of a claim. Hayes v. Brown, 5 Vet. App. 60 (1993). Rather, it has a duty to assess the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Factors that may be considered in assessing the probative value of a medical opinion include a physician's access to the claims file or pertinent evidence, the thoroughness and detail of the opinion, the accuracy of the factual premise underlying the opinion, the scope of examination, the rationale for the opinion offered, the degree of certainty provided, and the qualifications and expertise of the examiner. See generally Prejean v. West, 13 Vet. App. 444, 448-89 (2000); Sklar v. Brown, 5 Vet. App. 140 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993); Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Court has also held that a medical opinion is inadequate when unsupported by clinical evidence, see Black v. Brown, 5 Vet. App. 177, 180 (1995), and that a medical opinion based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Here the record reflects two opinions which the Board must address. As to the 2007 opinion of the VA examiner, it is noted that the examiner reviewed the Veteran's claims file and medical history in conjunction with his examination. Further a complete history and physical were obtained. There was full range of motion of the ankle and no pain on motion. He concluded that there was no right ankle or right foot disability and no relationship of the Achilles tendon repair to service. The Board finds that the evidence presented by the VA examiner to be most probative regarding this claim. On the other hand, the opinion offered by Dr, Daily lacks specificity and is very general in nature. This opinion is based on speculation, without supporting clinical data or other rationale, and is lacking in probative value. Bloom v. West, 12 Vet. App. 185, 187 (1999). In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's right foot complaints to active duty, despite his contentions to the contrary. Specifically, no medical professional has established a probative nexus between the Veteran's right foot complaints and active duty service. In fact, as noted, a VA examiner has stated that there is no relationship, and this finding was based on examination of the Veteran and a review of the claims file. It is highly probative. As such the most persuasive medical evidence in the file supports a finding that the current findings are not related to service. The Board has considered the lay statements reported by the Veteran. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that lay evidence is one type of evidence that must be considered, and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. In Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the Federal Circuit determined that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example difficulty hearing, and sometimes not, for example, a form of cancer), (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. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a factual issue. Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 470 (1992) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). See Barr v. Nicholson, 21 Vet. App. 303 (2007). In Robinson v. Shinseki, the Federal Circuit held that, in some cases, lay evidence will be competent and credible evidence of etiology. Whether lay evidence is competent in a particular case is a question of fact to be decided by the Board in the first instance. The Federal Circuit set forth a two-step analysis to evaluate the competency of lay evidence. The Board must first determine whether the disability is the type of injury for which lay evidence is competent evidence. If so, the Board must weigh that evidence against the other evidence of record-including, if the Board so chooses, the fact that the Veteran has not provided any in-service record documenting his claimed injury-to determine whether to grant service connection. See Robinson v. Shinseki, 312 Fed. Appx. 336 (2009) (confirming that, "in some cases, lay evidence will be competent and credible evidence of etiology"). The Board observes that this Federal Circuit decision is nonprecedential. See Bethea v. Derwinski, 252, 254 (1992) [a non-precedential Court decision may be cited "for any persuasiveness or reasoning it contains"]. The Board finds that if Bethea applies to Court decisions, it is logical to apply the guidance set forth therein to those decisions of a superior tribunal, the Federal Circuit. Here, the Board finds that, while the Veteran has asserted that he has a right foot disorder that is the result of service, he has not demonstrated the medical knowledge required to establish an etiological nexus between his right foot disorder and service. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); see also 38 C.F.R. § 3.159 (a)(1) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. Therefore, although the statements of the Veteran in support of his claim have been given full consideration by the Board, they are not considered competent medical evidence and do not serve to establish a medical nexus between the claimed disorder and the Veteran's period of service. As he is found to be not competent as to this consideration, a discussion on credibility is not necessary. Further, to the extent that the Veteran's statements are offered as evidence of continuity of symptomatology, the Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. See Buchanan v. Nicholson, supra. As noted, in adjudicating his claims, the Board must evaluate the Veteran's credibility. See Washington v. Nicholson, 19 Vet. App. 362, 368- 69 (2005). 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 v. Derwinski, 1 Vet. App. 49, 57 (1990). As noted, competency of evidence differs from weight and credibility. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, supra; see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). While the Board acknowledges that the Veteran is competent to provide evidence of his own experiences, the fact that the Veteran's treatment records do not reflect a diagnosis of a right foot problem until 1997, many years after service, weighs heavily against the claim. The Board is not holding that corroboration is required. Rather, the Board finds his assertions to be less credible than the negative contemporaneous records. The Board notes that symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. However, with respect to a merits review, the lack of evidence of treatment may bear on the credibility of the evidence of continuity. While the Veteran has stated that he had some treatment by a private doctor "about two or three years after service" he has not provided any records or further information on that treatment despite his statement that he would. Further the Veteran himself has stated during his private treatment in 1997 that he had no prior problems with his right foot. He did not mention the inservice treatment or any treatment following service. This information offered in conjunction with a medical assessment involving a problem with the right foot diminishes his credibility regarding having continuing complaints since service. As such, the Board finds that the probative evidence is against the claim based on continuity of symptomatology as it lacks credibility. 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 preponderance of the evidence is against finding that the Veteran has a right foot disorder etiologically related to active service. The appeal is accordingly denied. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the Veteran's claim. ORDER Service connection for a right foot disorder is denied. ____________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs