Citation Nr: 1210941 Decision Date: 03/26/12 Archive Date: 04/05/12 DOCKET NO. 07-22 559 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for bunions of the bilateral feet. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD L. Kirscher Strauss, Associate Counsel INTRODUCTION The Veteran served on active duty from October 2000 to February 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2007, the Veteran withdrew her request for a Travel Board hearing. See 38 C.F.R. § 20.704(e) (2011). In December 2009 and April 2011, the Board remanded the current issue for further evidentiary development. The requested development has been completed, and the case is before the Board for review. FINDINGS OF FACT The evidence does not show current bunions of the bilateral feet. CONCLUSION OF LAW The criteria for establishing service connection for bunions of the bilateral feet have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence she is responsible for providing. 38 C.F.R. § 3.159(b) (2011). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this case, in a November 2006 letter issued prior to the decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate her claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. This letter also advised her of how disability evaluations and effective dates are assigned, and the type of evidence that impacts those determinations. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include service treatment records, service personnel records, VA and private treatment records, VA examination reports, and statements from the Veteran. The Veteran was notified and aware of the evidence needed to substantiate her claim, the avenues through which she might obtain such evidence, and the allocation of responsibilities between herself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument. Thus, she was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis 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). To prevail on the issue of service connection there must be medical 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); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet App. 341, 346 (1999). The Board has reviewed all of 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 her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. 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 treatment records are for silent for complaints, findings, or reference to any foot problems with two exceptions. In a service treatment record dated in November 2000, the Veteran complained of painful blisters on her bilateral big toes. Objective findings included dried blisters bilateral hallux. The assessment was bilateral dried friction blisters. In a separation report of medical history dated in February 2006, the Veteran indicated that she had foot trouble described as bunions on both pinky toes since she had been in military service with pain when she puts on civilian shoes. In May 2006 the Veteran claimed that she had a bilateral bunion disability that began in February 2006. Post-service private treatment records dated in October 2006 and February 2007 as well as VA treatment records dated from January 2008 to January 2010 did not document any complaints or findings regarding any foot problems. In a fee-basis general medical examination report dated in May 2007, the Veteran stated that she had bilateral bunions for five years and constant pain. The examiner noted there was no evidence of abnormal weight bearing of the feet. Examination of the feet revealed no pes planus, pes cavus, hammer toes, hallux rigidus, or Morton's metatarsalgia. Hallux valgus of both feet was noted, with the degree of angulation being slight. Examination of all other joints was within normal limits. An x-ray study was not performed because the Veteran was pregnant. The diagnosis was bilateral hallux valgus. In a February 2010 VA feet examination report, the Veteran stated that she developed areas of pain on the sides of her feet in 2003 during military service and thought she had corns on her little toes. She stated she was evaluated by a clinician and diagnosed with bunions. She reported that she continued to have pain, particularly due to her military boots rubbing against her feet. An x-ray study of the bilateral feet was reported as normal. Following a review of the claims file and physical examination, the diagnosis was no findings on day of exam per x-ray of right or left foot bunion. In April 2011 the Board remanded the claim to return the claims file to the February 2010 VA examiner to request adequate rationale for all opinions expressed as to whether it is at least as likely as not that any current bunions arose during service or were otherwise related to service. The remand instructed that an examination of the Veteran should be scheduled if the examiner determined that an examination was necessary to provide the requested opinion with rational. The Board finds that the remand instructions have been fulfilled. In a May 2011 addendum, the VA examiner who performed the February 2010 examination indicated that she reviewed the claims file again and outlined pertinent service records. She reiterated that the Veteran's claimed bunions of the bilateral feet were non-existent on the day of examination and were therefore less likely as not caused by or a result of active military service or an incident of military service. The examiner reasoned that the Veteran had blisters on both fifth toes in 2000 with no further documentation of treatment or intervention for bunions until she documented bilateral bunions of her fifth toes on her discharge physical in February 2006. The examiner cited an excerpt from the American College of Foot and Ankle Surgeons website information on bunions, which explained that bunions are readily apparent - the prominence is visible at the base of the big toe or side of the foot. However, to fully evaluate the condition, the foot and ankle surgeon may take x-rays to determine the degree of the deformity and assess the changes that have occurred. Because bunions are progressive, they don't go away, and will usually get worse over time. But not all cases are alike - some bunions progress more rapidly than others. The examiner also noted that while the Veteran had been getting care and treatment at the Hampton VAMC since January 2008, there had been no documentation in her records of a problem of bunions to her feet. The examiner reiterated that x-ray findings from the 2010 examination did not show any pathology of her foot or bunion on bilateral x-ray of the foot. The Board has carefully considered the medical and lay evidence of record, but finds that service connection for bunions of the bilateral feet is not warranted. Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. § 1110 (West 2002). Accordingly, where, as here, there is no competent medical evidence establishing that the Veteran has current bunions of the bilateral feet, the disability for which service connection is sought is not established, and thus, there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In this case, the first essential criterion for a grant of service connection - evidence of a current disability manifested by bunions- has not been met. In connection with the claim, the Board has considered the assertions that the Veteran advanced on appeal. The Board notes that she is competent to describe her foot pain and any deformity of the feet. See Barr v. Nicholson, 21 Vet. App. 303 (2007). However, competent medical evidence, including x-ray study of the feet, does not reflect a current bunion disability during the course of the claim. The Board assigns more weight to the objective medical evidence which fails to reflect the presence of bunions than to the Veteran's assertions that she has bunions. The Board acknowledges that during the course of the claim the Veteran was diagnosed with hallux valgus. While blisters of the big toes were treated during service, hallux valgus was not noted during service. On her separation examination, where the first mention of bunions was made, the Veteran reported that the bunions involved her pinky toes, not the big toes (hallux). She reiterated that the bunions were on the pinky toes at her March 2010 VA examination. Accordingly, as hallux valgus was not noted in service, and her only description of the location of the claimed bunions mentions her pinky toes, the hallux valgus noted on the 2007 VA examination is not relevant to her claim for service connection for bilateral bunions. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (A claim for service connection should not be limited to consideration of a specific diagnosis where the pleadings and evidence suggest a claim of broader scope.). In this regard, the evidence and pleadings do not suggest that she was seeking service connection for hallux valgus of the big toes; rather, she is seeking service connection for bunions (which she also described as corns) involving her pinky toes. She did not suggest that she had bunions on her big toes, nor is there any evidence of record suggesting the presence of bunions on her big toes. Accordingly, the Board finds the Veteran's claim is limited to bunions, and the presence of hallux valgus, first noted more than a year after discharge from service, does not serve to establish a current bunion disability for purposes of deciding this claim. See McClain v. Nicholson, 21 Vet. App. 319, 323 (2007) (Board finding that veteran had disability "at some point during the processing of his claim," satisfied service-connection requirement for manifestation of current disability). For the foregoing reasons, the claim for service connection for bunions of the bilateral feet must be denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, in the absence of competent and persuasive evidence to support the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for bunions of the bilateral feet is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs