Citation Nr: 1126585 Decision Date: 07/14/11 Archive Date: 07/21/11 DOCKET NO. 03-33 893 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to service connection for a bilateral foot disorder. REPRESENTATION Appellant represented by: Peter J. Meadows, Attorney WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Shamil Patel, Associate Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty from October 1947 to August 1950. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a November 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho, in which the RO found that new and material evidence sufficient to reopen the Veteran's previously denied claim of entitlement to service connection for a bilateral foot disorder had not been presented. The Veteran appealed that decision to the Board. In April 2004, the Board remanded this case for the Veteran to be afforded a BVA hearing. See April 2004 BVA decision. In October 2004, the Veteran testified before a Veterans Law Judge at the RO. See October 2004 hearing transcript. Subsequently, the Veterans Law Judge who presided over the Veteran's hearing left the employment of the Board. Although the Veteran was offered an additional BVA hearing, he declined to have such a hearing. In March 2006, the Board determined that new and material evidence had not been received to reopen the appellant's bilateral foot disorder service connection claim. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In August 2006, the Court granted a Joint Motion for Remand submitted by VA's General Counsel and the Veteran. See August 2006 Joint Motion for Remand; August 2006 Court Order. Thereafter, the case was remanded to the Board for action consistent with the motion. Subsequently, in a November 2006 decision, the Board determined that new and material evidence had been received to reopen the appellant's claim of service connection for a bilateral foot disorder. In doing so, the Board remanded the merits of the Veteran's service connection claim to the RO for additional development. After the development requested by the Board in November 2006 was completed, the case was returned to the Board for further review. Thereafter, in a September 2007 decision, the Board denied the Veteran's claim of entitlement to service connection for a bilateral foot disorder on its merits. The Veteran appealed the Board's September 2007 decision to the Court. In an August 2009 order, the Court vacated and remanded the Board's September 2007 decision in light of another Joint Motion for Remand (Joint Motion) submitted by the parties. See August 2007 Joint Motion for Remand; August 2009 order. In March 2010, the Board again remanded the Veteran's claim for development consistent with the instructions of the Joint Remand. That development has been completed, and the case is once again before the Board for appellate review. The Veteran recently submitted additional evidence in support of his claim, along with an appropriate waiver of RO consideration. Therefore, the Board may proceed. See 38 C.F.R. § 20.1304(c) (2010) (any pertinent evidence accepted directly at the Board must be referred to the agency of original jurisdiction (AOJ) for initial review unless this procedural right is waived by the appellant). FINDING OF FACT The Veteran has residuals of bilateral foot injuries etiologically related to service. CONCLUSION OF LAW Residuals of bilateral foot injuries were incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1131 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION A. Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2010). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The Board notes that effective May 30, 2008, VA amended its regulations governing VA's duty to provide notice to a claimant regarding the information necessary to substantiate a claim. The new version of 38 C.F.R. § 3.159(b)(1), removes the portion of the regulation which states that VA will request that the claimant provide any evidence in his possession that pertains to the claim. See 73 Fed. Reg. 23353-54 (April 30, 2008). In this case, 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 will not be further discussed. B. Evidence There were no complaints, findings, treatment, or diagnosis of any foot disease or injury during service. The Veteran was afforded an enlistment examination in October 1947 and a separation examination in August 1950. Each examiner indicated that evaluations of the bones, joints, muscles, and feet, were normal. In November 1955, the Veteran applied for VA compensation benefits. He reported that he had incurred a lung disorder during service. He made no mention of any foot disorder. In February 1980, the Veteran was seen by a private physician, R.E.O., M.D., for a possible right inguinal hernia. At that time, the Veteran reported that he had fractured his feet while he was in the service in the Korean War. There were no indicated findings regarding the feet at that time. In June 1991, the Veteran again applied for VA compensation benefits. He reported that he had incurred hearing loss during service. He made no mention of any foot disorder. In August 1996, the Veteran was provided private cardiovascular treatment. At that time, the Veteran denied having any significant muscular, skeletal, bone, or joint abnormalities. Physical examination of the extremities revealed no clubbing, cyanosis, or edema. March and June 1997 examinations revealed the same findings. In June 1998, the Veteran applied for VA compensation benefits. He reported that he had incurred, in pertinent part, a bilateral foot disorder during service, in 1949. Thereafter, VA medical records were obtained. October 1999 x-rays revealed no evidence of osteomyelitis or lesions of the foot bones. There were no fractures of either foot nor were residuals of old fractures identified. In May 2000, the Veteran reported that he had bilateral foot pain. He stated that he had had foot problems for over 50 years. He related that he had suffered "broken ankles" while in the military. The assessment was bilateral foot pain. May 2000 x-rays revealed subluxation of the proximal phalanx of the right 5th toe. In a July 2000 letter, K.W.H., D.P.M., stated that the Veteran had been seen in his office several months ago, complaining of bilateral foot pain. The Veteran stated that during service, he was on a ship and his feet slid underneath a part of the ship where they became lodged. He indicated that the feet had to be extricated and had been painful ever since. It was noted that some marked bony spurs had formed around the base of the first metatarsal cuneiform area. The Veteran had undergone surgery on his right foot to remove the spurs. K.W.H. stated that the findings at the time of surgery showed quite a bit of bony proliferation which was probably consistent with some type of trauma to the foot. It was noted that the Veteran's feet were not seen before the time of service so there was no way to tell for sure if this was exactly the cause, but it was very possible that this could have caused it. In November 2002, a lay statement was received from a person who served with the Veteran in which this person indicated that the veteran had an accident aboard the USS Chicot AK-170 in about 1950. The nature of the accident was not indicated. In December 2002, Dr. O. submitted a letter in which he stated that the Veteran had been treated in his family practice from approximately 1963 to 1992. The physician noted that the veteran had come to him on several occasions during the past year wanting to verify that he had problems with his feet. On a history and physical that was performed by this physician in February 1980, he had put on his review of systems that the Veteran had fractured feet when he was in the service during the Korean War. As far as this physician knew, the Veteran had not told any untruths with regard to his past medical history so he had no reason to doubt that he had fractured his feet during service. In July 2003, the Veteran was afforded a VA examination. The claims file was reviewed. The Veteran reported that he had a long history of painful feet which he related to trauma during service. However, the examiner reviewed the service medical records and noted that there was no documentation of any foot problems or of any treatment to the feet. The negative October 1999 x-ray of the feet was noted. Physical examination revealed multiple heel scars which were residuals of the bony spur excisions. The current assessment was chronic bilateral foot pain, undiagnosed. The examiner noted that the Veteran had previously had negative x-rays of the feet, a whole body scan which showed age-related degenerative joint disease (in other body areas), and negative rheumatology clinic findings. A consultation from the podiatry clinic was requested. In September 2003, the Veteran was seen by VA in the podiatry department. He complained of foot pain, and reported that he broken both his feet 54 years ago while in the service, and his feet had hurt since that time. Multiple right hammertoe deformities were present. In addition, the Veteran had splaying of the forefoot. X-rays revealed no acute fracture, subluxation, dislocation, or osseous erosion. The Veteran had right hammertoe deformities and splaying of the forefoot metatarsals. The impression was metatarsalgia secondary to 1st ray hypermobility bilaterally. The Veteran was given over-the-counter (OTC) inserts. In October 2004, the Veteran and his wife testified at a Travel Board hearing. At that time, the Veteran stated that during service, in 1949 or 1950, he was aboard the USS Chicot AK-170 when he slipped and his feet went under a part of the ship. His feet were fractured and he had to be carried by three other service members. He indicated that he did not seek treatment immediately after service and was also refused treatment by VA as his feet were not service-connected. His spouse indicated that when she met the Veteran, his shoes were untied and he told her that he could not tie his shoes because he hurt his feet in the Navy. The veteran submitted another lay statement from a service comrade in which it was indicated that while a bad storm was occurring on board ship in service, this person and the Veteran were tarping a cargo hole. The Veteran was pulling the tarp when he slipped and his feet went under the angles. This caused injury. Thereafter, additional VA treatment records were obtained. In January 2006, the Veteran complained that his feet were "rotten away." The next month, the Veteran was seen in the podiatry clinic. It was noted that he was having pain in the balls and heels of his feet. He had a 1st met-cuneiform exostectomy on both feet and a Morton's neuroma neurectomy performed to the 3rd interspace, previously. The Veteran reported that the pain had existed for 30 years which was relieved by the neuroma excision for about 2 years, but then the pain returned. He tried using orthotics, but they did not work and made his feet worse. Physical examination was performed. The current diagnoses were neuroma of the 2nd interspace bilaterally with recurrent stump neuroma of the 3rd interspace of the right foot with bilateral metatarsalgia; plantar fasciitis, bilaterally; and onychomycosis of the toenails. The Veteran was given steroid injections for pain as well as OTC inserts with metatarsal pads. In April 2006, the Veteran again complained of feet pain. He indicated that the pain was located in the balls and heels of his feet. He reported that the steroid injections had not helped. He also indicated that he threw the OTC inserts away because they worsened the pain. Physical examination was performed. The diagnoses were: generalized pain which was likely neuropathic in nature, although idiopathic; plantar fasciitis, bilaterally; and onychomycosis. Several weeks later, it was again noted that the Veteran reported having burning pain in his feet which sounded neurological. The Veteran was subsequently diagnosed as having diabetes mellitus. In October 2006, the Veteran underwent an electromyography (EMG). It was noted that the Veteran was a farmer with a history of multiple medical problems. The Veteran reported that he had experienced feet pain and sensory loss for 50 years, perhaps worse after trauma, although the examiner did not note the nature of any trauma. Nerve conduction studies were abnormal. There was mild distal sensorimotor polyneuropathy such as might be seen with diabetes, vitamin deficiencies, thyroid disease, or other metabolic or autoimmune insults. It was noted that a B-12 vitamin deficiency should be considered. There was little evidence of previous or ongoing right lumbar radiculopathy. The Veteran was subsequently evaluated for gait disturbance and peripheral neuropathy. It was noted that the EMG did not show peripheral neuropathy; however, the Veteran had been recently diagnosed as having diabetes. Also in October 2006, it was again noted that the Veteran had feet pain which had been present for 57 years. The Veteran related that he had herniated his back in 1967. Vascular, neurological, skin, and musculoskeletal testing was performed. The examiner opined that the pain in the Veteran's feet was neurogenic in nature and was coming from his back. His calluses were due to decreased fat padding in his feet and the skin problems were related to farming in soil with heavy metals. He was started on a multivitamin. The Veteran underwent another VA examination in June 2010. The claims file was reviewed by the examiner, who noted the absence of any foot complaints or treatment in the Veteran's service treatment records. His first report of foot pain was in 1980, with no apparent complaints of symptoms at that time. The examiner also noted subsequent x-rays and other treatment records. The Veteran reported that he was placing a tarp over a cargo hole. His foot got trapped underneath the angle iron, causing injury. His shipmates had to drag him back to his bunk. He was only treated with ice packs. The Veteran and his wife also gave a history of surgeries to remove spurs. The Veteran had experienced pain since 1949, rated as 7/10 in severity, and was aggravated by standing on rocks or uneven ground. On examination, there was tenderness on manipulation of both arches, especially on the plantar surface underneath the first metatarsophalangeal joint. Arches and Achilles tendons were maintained and without weightbearing. There were some calluses indicative of abnormal weightbearing. The examiner diagnosed mild bilateral plantar fasciitis, as well as hammertoe deformities most resolved status post surgeries. The examiner opined that it was less likely than not that the Veteran's bilateral feet disorders were related to any event from military service. He based this opinion on the fact that there were no documented complaints or treatment in service or for over 20 years after. Although the Veteran reported a history of foot injuries in service to other medical providers, he also reported negative findings on various system reviews since his discharge. The Veteran underwent a private medical evaluation in March 2011. The physician indicated he reviewed the relevant VA records and obtained a history from the Veteran. The Veteran reported a history of foot injuries in service consistent with those described to the June 2010 VA examiner. Since that time, the Veteran had pain, swelling, and discomfort in both feet, as well as difficulty with walking. These symptoms slowly worsened over the years. He underwent surgery on his right foot to remove bony spurs. This surgery helped for a short period of time, but his symptoms eventually started to worsen again. Given that the Veteran had no foot problems prior to service, but had serious and chronic problems following his crush injuries to both feet during service, the examining physician opined that it was highly likely that the Veteran's currently diagnosed bilateral foot disorder had its origins in service and/or was caused by the crush injuries sustained during service. C. Applicable Law and Analysis In order to establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2010). 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) (2010). In addition, certain chronic diseases, including arthritis, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.307, 3.309 (2010). For a showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. If the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2010). Service connection requires competent evidence showing: (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, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Based on the evidence of record, and resolving all doubts in favor of the Veteran, the Board finds that service connection for a bilateral foot disorder is warranted. The Veteran contends that he sustained injuries to his feet during service when they were caught under an angle iron. Lay statements from service comrades generally support the Veteran's claim. The Veteran asserts that his current disabilities are related to these service injuries. 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 believes that if Bethea applies to Court decisions, it surely applies to those of a superior tribunal, the Federal Circuit. Here, the Board does not find that the Veteran is competent to render diagnoses of in-service fractures of the feet. While the Veteran and his service comrades are certainly competent to report observable events and symptoms, they have not been shown to be competent to identify specific disorders based solely on observation. Further, while the Veteran has asserted that bilateral foot disorders are the result of injuries sustained during service, he has not demonstrated the medical knowledge required to establish an etiological nexus between his skin disorders and in-service chemical exposure. 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 offered 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 these claimed disorders and the Veteran's period of service. However, the Veteran and his comrades are competent to report the incident in question, and the Veteran is also competent to report the symptoms he personally experienced afterwards. These observations were made first-hand and do not require specialized knowledge. Moreover, the Board finds the Veteran to be credible in his assertions regarding his injury, as they are consistent with the circumstances of the Veteran's service and supported by similar statements from his service comrades. The Board notes the existence of several opinions that comment on the etiology of the Veteran's bilateral foot disorders. According to the Court, "the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches." Guerrieri v. Brown, 4 Vet. App. 467, 470 (1993). The credibility and weight to be attached to these opinions is within the province of the Board. Id. In July 2000, K.W.H. noted that the Veteran's feet were not seen before the time of service so there was no way to tell for sure if his service injury was the cause of the current foot pain, but it was very possible that this could have caused it. However, service connection may not be based on speculation or remote possibility. See 38 C.F.R. § 3.102; Obert v. Brown, 5 Vet. App. at 30, 33 (1993) (a medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a plausible claim); see also Davis v. West, 13 Vet. App. 178, 185 (1999); Bostain v. West, 11 Vet. App. 124, 127-28 (1998). The June 2010 VA examiner reviewed the claims file and obtained a history from the Veteran, and subsequently opined that the Veteran's bilateral foot disorders were less likely than not related to service. He noted that there was no objective evidence or documentation of a bilateral foot injury during service, and appeared to dismiss the Veteran's subjective reports as well as the personal observations of the Veteran's service comrades regarding the incident. However, as noted above, the Veteran is both competent and credible in his assertions regarding foot injuries in service. Therefore, the VA examiner's opinion, which does not acknowledge any trauma in service, holds little probative value. The March 2011 private physician opined that it was highly likely that the Veteran's currently diagnosed bilateral foot disorder had its origins in service and/or was caused by the crush injuries sustained during service. This opinion was based on a review of the relevant records and a credible history obtained from the Veteran. Although the physician does not diagnose a specific bilateral foot disorder, the Board nonetheless finds this opinion to be the most probative on the issue of etiology. The Board has carefully weighed the evidence, particularly the medical opinions of record. In light of the provisions of 38 U.S.C.A. § 5107(b) regarding benefit of the doubt, the Board finds that the evidence is at least in equipoise as to whether the Veteran has residuals of bilateral foot injuries related to service. Therefore, service connection for residuals of bilateral foot injuries is warranted. ORDER Service connection for residuals of bilateral foot injuries is granted. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs