Citation Nr: 1128022 Decision Date: 07/27/11 Archive Date: 08/02/11 DOCKET NO. 06-17 339 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for a bilateral foot disorder, including as secondary to service-connected degenerative disc and joint disease of the lumbar spine. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. M. Clark, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1972 to May 1974. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a December 2005 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in North Little Rock, Arkansas. The Veteran testified before the undersigned Veterans Law Judge in September 2007. A transcript of the hearing is of record. This case was initially before the Board in November 2007. Most recently, in February 2009, the Board remanded the issue on appeal. Pursuant to the February 2009 Remand, the RO was instructed to afford the Veteran a VA examination for purposes of determining if the Veteran had a current bilateral foot disorder, and for a VA medical opinion. Although the Board questions whether the VA opinion obtained, with respect to secondary service connection, is sufficient, because the Board is granting in full the benefits sought on appeal, this procedural error is deemed to be non-prejudicial to the Veteran. FINDING OF FACT The Veteran's bilateral foot disorder had its onset in service or is otherwise etiologically related to his active service. CONCLUSION OF LAW A bilateral foot disorder was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1111, 5103(a), 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 3.303 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION I. 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 & Supp. 2010); 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. The Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered. II. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In considering in-service incurrence, the Board has considered that the service treatment records do not confirm that the Veteran suffered from a right or left foot disorder. In fact, the Veteran's April 1974 separation examination noted a normal clinical evaluation of his feet. Moreover, the Veteran denied currently having, or having had, foot trouble in a Report of Medical History completed at that time. Post-service records first reflect treatment associated with foot pain in March 2004. More recent treatment records reflect a diagnosis of not a true pes planus, but a plano valgus foot with minimally preserved arch, bilaterally. See April 2009 VA examination. The April 2009 VA examiner indicated that the Veteran did not have hammertoes or claw toes, but did have metatarsalgia. See Id. The Board has considered that a May 2008 VA examiner indicated that the Veteran did not have any organic disease of his feet. The Board notes that although no diagnosis was found in May 2008, the United States Court of Appeals for Veterans Claims (Court) held in McClain v. Nicholson, 21 Vet. App. 319 (2007), that so long as the Veteran had a diagnosed disability during the pendency of the claim, service connection criteria requiring a current disability was satisfied. As such, the evidence demonstrates the existence of a current bilateral foot disability. The Veteran essentially asserts that he first suffered from foot pain in service. See May 2006 Substantive Appeal. In this case, there is no dispute that Veteran is competent to report symptoms of continuous bilateral foot pain since service, because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). In such cases, the Board is within its province to weigh that testimony and to make a credibility determination. The Board finds the Veteran's statements to be credible, as there is internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Caluza v. Brown, 7 Vet. App. 498 (1995). In this regard, while he has consistently attributed his foot problems to his service-connected back disability, he has also attributed his symptomatology to originating in service. See April 2009 VA examination. The Board acknowledges that many of the Veteran's statements, both testimonial and written, have not proffered information regarding in-service symptomatology, but rather have focused on the relationship of his ongoing foot problems to his service-connected back disability. Nevertheless, the Veteran did testify at his September 2007 BVA hearing that his foot problems started after his back was injured. See BVA Hearing Transcript (T.) at 5. The Board parenthetically notes that the Veteran was service-connected, in a June 2003 rating decision, for his current back disability related to a September 1973 in-service injury. The Veteran was not discharged from service until May 1974, which was nine months after his back injury. Therefore, it is theoretically possible that he could have experienced bilateral foot pain in the remaining nine months of his service. Moreover, and of significance, current VA treatment records do not reflect statements by the Veteran that his foot disorder is of more recent onset. Weighing against the Veteran's contentions of in-service onset, the Board has considered that although the Veteran filed a February 1987 nonservice-connected disability pension claim, he did not mention or claim any disability with respect his feet at that time. Moreover, the Veteran has applied for service connection for other disorders and never mentioned a claim for a bilateral foot disorder until his claim in August 2005. In light of the discussion above, while the evidence is somewhat equivocal, it has nonetheless placed the record in relative equipoise, and the Board has made a credibility determination to accept as true, the Veteran's contentions that he has experienced foot problems since service. Moreover, although there is a thirty-year gap between discharge and when the available post-service records first reflect complaints by the Veteran of foot symptomatology, the weight of the competent evidence of record shows that his currently-diagnosed plano valgus foot with minimally preserved arch, bilaterally, and metatarsalgia were incurred in active service. Significantly, an April 2009 and July 2009 VA examiner considered the Veteran's case. He reviewed the Veteran's claims folder. The VA examiner noted that after reviewing the chart, the claims file and the April 2009 VA examination, it was his opinion that the Veteran's foot disability was not due to any incident in service. He clarified however, that his foot disability did in fact start while the Veteran was in-service, but not due to a specific incident. The VA examiner reflected that the Veteran reported that his feet "just went to hurting." He indicated that although this could not be considered an incident, it certainly did occur while the Veteran was in service. The Board parenthetically notes that pursuant to this decision the Board is making a credibility determination to concede as true the Veteran's contentions that he experienced bilateral foot pain in service. Although the VA examiner initially appears to provide an essentially negative opinion, the Board finds that his opinion, when read in a light most favorable to the Veteran, reflects that his current bilateral foot disorder was incurred in active duty service. There are no contradictory opinions of record. Pursuant to this decision, the Board has made a credibility determination that the Veteran suffered from in-service foot symptomatology. Based on this finding, in conjunction with a favorable reading of the July 2009 addendum opinion, the Board finds that the doctrine of reasonable doubt supports a grant of service connection for a bilateral foot disorder. The Board notes that the Veteran has alternatively argued that his bilateral foot disorder is secondary to his service-connected degenerative disc and joint disease of the lumbar spine. Nevertheless, given that this opinion is granting service connection for his bilateral foot disorder, a discussion as to whether secondary service connection is warranted is deemed moot. ORDER Service connection for a bilateral foot disorder is granted. ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs