Citation Nr: 1213435 Decision Date: 04/12/12 Archive Date: 04/26/12 DOCKET NO. 07-03 681 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for a right foot disorder. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD N. L. Northcutt, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1988 to January 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. By way of background, the Veteran initially sought service connection for a bilateral foot disorder, and in October 2010, the Board denied service connection for a left foot disorder and remanded the Veteran's right foot disorder service connection claim for further evidentiary development. After completion of the requested development, the Appeals Management Center (AMC) readjudicated the claim, as reflected by a July 2011 supplemental statement of the case. Because the benefit sought remains denied, the claim has been returned to the Board for further appellate review. In a September 2011 statement, the Veteran's representative raised the issue of service connection for "hyperthyroid peripheral neuropathy" and requested that the Board refer this claim to the RO for further development. As a recent VA examination relates the Veteran's current foot symptomatology to his hypothyroidism, the Board infers that the Veteran's representative intended to raise a claim for hypothyroid peripheral neuropathy. Accordingly, the issue of service connection for hypothyroid peripheral neuropathy is hereby REFERRED to the RO for further development. FINDINGS OF FACT 1. The Veteran's reported continuity of right foot symptomatology since his in-service right foot injury is not credible. 2. The only medical opinion of record addressing the etiology of the Veteran's currently-diagnosed right foot disorder fails to relate his current condition to service, and instead attributes this condition to the Veteran's nonservice-connected hypothyroidism. CONCLUSION OF LAW The criteria for service connection for a right foot disorder have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The VA has a duty to provide notification with to respect establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159(b). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Proper VCAA notice must inform the claimant of any information and 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 in accordance with 38 C.F.R. § 3.159(b)(1). Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004). This notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) the Veteran status; (2) the existence of a disability; (3) a connection between the Veteran's service and the disability; (4) the degree of disability; and (5) the effective date of the disability. VA's notice requirements were partially satisfied by a letter issued in November 2004, which explained the evidence the Veteran was responsible for obtaining, the evidence VA would obtain on his behalf, and the criteria for establishing service connection. This notice was sent to the Veteran prior to the initial adjudication of his claim. Additionally, an April 2006 letter advised the Veteran of the method by which VA determines disability ratings and effective dates, and the Veteran's claim was subsequently readjudicated, as reflected by an October 2006 statement of the case and supplemental statements of the case issued in March 2007 and July 2011. Accordingly, the Board finds that any errors regarding the content or the timing of the notice provided have been rendered harmless. Moreover, neither the Veteran nor his representative have alleged that the Veteran has been prejudiced by any related error. Regarding VA's duty to assist, the Veteran's service and VA treatment records are associated with his claims file, and the Veteran has not identified any relevant, available treatment records that have not been obtained. The Veteran was also provided with a relevant VA examination and related medical opinion in February 2011 to address the etiology of his right foot disorder. The Board finds that the VA examination and medical opinion are sufficient for adjudicatory purposes. The examination report reflects that the examiner performed a thorough physical examination of the Veteran and that the related medical opinion is predicated upon an accurate review of the Veteran's claims file and supported by a detailed rationale. Moreover, there has been no allegation that the VA examination and medical opinion are insufficient. The Veteran was also offered an opportunity to testify at a hearing before the Board, but he declined. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claim. As VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. Service Connection The Veteran contends that he developed his current right foot disorder as the result of a right foot injury that he incurred during service after completing a ten-mile march. In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with active service in the Armed Forces, or if preexisting such service, was aggravated therein. Establishing direct service connection generally requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). The Veteran's service treatment records reflect that the Veteran's mild, asymptomatic bilateral pes planus was noted on his enlistment physical examination report. March 1993 service treatment records reflect that after engaging in a ten-mile hike, the Veteran sought emergent care for a painful blister on the middle aspect of his right foot, as well as pain in his second right digit. The Veteran's skin was noted to be sloughed from his right heel, and the Veteran's right foot blister was debrided and dressed. The Veteran was subsequently referred for follow-up podiatric treatment for his healing right foot blister. One such treatment record noted the presence of bilateral pes planus, but the subsequent two podiatric assessments note no evidence of pes planus. The Veteran was afforded a separation medical examination in November 1993, at which time no abnormalities of the Veteran's feet were noted. Additionally, in his separation medical history report, the Veteran denied experiencing any foot trouble. The Veteran was discharged from service in January 1994, and he was afforded a VA general medical examination in April 1994, at which time no foot abnormalities were noted or reported by the Veteran. Based on a review of the Veteran's service treatment records, the examiner noted a diagnosis of asymptomatic pes planus, by records. The Veteran's first right foot complaint of record is reflected in a September 2005 VA treatment record, at which time the Veteran reported that he had experienced blisters of his right foot during service and bilateral foot pain for several years prior to the time of the treatment, but that his foot pain had increased in severity in the several weeks prior to treatment. The Veteran was assessed with bilateral foot and ankle pain at this time. The Veteran again reported experiencing bilateral foot pain in August 2006, at which time he characterized his foot pain as a burning sensation. A September 2006 VA podiatric consultation record reflects the Veteran's report of experiencing burning, cramping, shooting sensations of his feet and occasional foot blisters which began during his military service. During a physical examination of the Veteran's feet, he was noted to have no blistering or lesions and flexible flat feet. The treating podiatrist assessed the Veteran with a normal pedal evaluation and bilateral, flexible pes planus, and recommended that the Veteran undergo nerve conduction studies. A January 2007 VA treatment record reflects the Veteran's report of experiencing burning and tingling sensations on the bottoms of both feet for approximately seven to eight years prior to the time of this treatment (since approximately 1999 or 2000), and based on nerve conduction studies performed at this time, the Veteran was diagnosed with generalized acquired sensorimotor polyneuropathy. Based on the Veteran's in-service right foot treatment and current diagnosis of a right foot disorder, the Board remanded the Veteran's claim in October 2010 to afford the Veteran a VA examination. The Veteran underwent the requested examination in February 2011, at which time the Veteran reported developing a right heel blister during service and having experienced right foot pain continually since this time, but that he last experienced foot blisters "a long time ago." After chronicling the Veteran's relevant service and post-service treatment and conducting a thorough physical examination of the Veteran, the examiner diagnosed the Veteran with a normal right pedal examination with flexible pes planus; right pedal blistering post-1993 hike, resolved; and generalized acquired sensory motor polyneuropathy of the right lower extremity. With regard to the Veteran's in-service right foot blistering, the examiner found no current sequelae of this acute in-service episode, and noted that the Veteran had no recurrence of his pedal blistering in service, Furthermore, at the time of the examination, the Veteran reported that he had not experienced any foot blistering for many years. With regard to the Veteran's pes planus, noted on entrance to service, the examiner noted that the Veteran's pes planus was not permanently aggravated by service. In support of this medical opinion, the examiner stated that the Veteran's pes planus was not observed on several in-service podiatry treatment records, nor did the Veteran receive any in-service treatment for pes planus. With regard to the Veteran's currently-diagnosed generalized acquired sensory motor polyneuropathy, the Board found that this condition is also unrelated to service, as the Veteran was noted to have normal neurovascular structures during podiatric assessments during service. Moreover, the examiner stated that the Veteran's polyneuropathy appears to be related to his nonservice-connected hypothyroidism, as suggested by a VA neurologist in 2007. (The examiner further indicated that the Veteran's hypothyroidism was also unrelated to service, referencing the normal thyroid levels noted during relevant in-service testing and that the first abnormal thyroid levels were recorded in 2005.) After reviewing the evidence of record, the Board finds that service connection for a right foot disorder is not warranted. With regard to the Veteran's pes planus of his right foot, which existed prior to service as noted on his enlistment physical examination report, there is no medical evidence of record to suggest that it was permanently aggravated during service. As referenced above, the Veteran received treatment in March 1993 for his right foot blister, which included three consultations from the podiatry clinic. While the first podiatry treatment record notes a finding of pes planus, the second two treatment records note no biomechanical abnormalities of the Veteran's feet, including pes planus. Moreover, the Veteran's pes planus was not noted upon his separation from service. Additionally, the Veteran's April 1994 VA examination noted no findings of pes planus and based a diagnosis of pes planus solely on the Veteran's service treatment records reflecting his history of pes planus. Furthermore, a September 2006 VA treatment record and February 2011 VA examination report characterize the Veteran's pes planus as flexible, and the VA examiner specifically opined that the Veteran's preexisting pes planus had not been permanently aggravated by service. The Board finds that this medical opinion should be afforded great probative value, as it was predicated upon an accurate review of the record and is supported by a sufficient rationale. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (holding that among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion). Thus, as the evidence of record characterizes the Veteran's current pes planus as flexible and reflects that it was not permanently aggravated by service, the evidence fails to present a basis for awarding service connection on a theory of aggravation. With regard to the Veteran's currently-diagnosed right foot disorder, namely generalized acquired sensorimotor polyneuropathy, the Board notes that the 2011 VA examiner found the Veteran's in-service right foot treatment to be unrelated to his current bilateral polyneuropathy and cited in-service clinical findings in support of this opinion. Rather, the examiner related the Veteran's polyneuropathy to his nonservice-connected hypothyroidism, a condition the examiner stated had developed many years after service. The Board finds that this medical opinion is consistent with the chronology of the Veteran's right foot symptomatology. Specifically, the Veteran's currently-diagnosed generalized acquired sensorimotor polyneuropathy of the right foot was diagnosed in 2007, approximately 15 years after his discharge from service. Moreover, the first post-service right foot complaints of record are in 2005 (at which time the Veteran was also diagnosed with hypothyroidism) and the Veteran reporting in 2006 that his left foot pain began no earlier than 1999 or 2000 (and no foot abnormalities were noted during his 1994 VA examination). Accordingly, the evidence of record fails to suggest a link between the Veteran's currently-diagnosed right foot disorder and service. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd 230 F.3d 1330 (Fed. Cir. 2000) (holding that service connection may be rebutted by the absence of medical treatment for the claimed condition for many years after service). The Board specifically acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran's report that he has experienced right foot pain continually since his in-service right foot injury. At the outset, the Board acknowledges that the Veteran is competent to report the onset and continuity of his right foot symptomatology. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (a lay person is competent to report symptoms based on personal observation when no special knowledge or training is required). However, the Veteran's credibility as a reliable historian is belied by his denial of experiencing foot trouble on his service separation medical history report and his failure to report this symptomatology during his post-service VA examination conducted in April 1994. Furthermore, the Veteran's post-service treatment records fail to reflect his reports of experiencing right foot symptomatology continually since service, and instead reflect his report of experiencing foot pain since approximately 1999 (several years after service). See Cromer v. Nicholson, 19 Vet. App. 215 (2005) (finding a history, provided by a veteran, that had varied over time was not credible). Accordingly, the Board concludes that the Veteran's reported continuity of symptomatology is not credible. Moreover, while the Veteran may be competent to report his symptomatology, he is not competent, as a lay person, to relate his current right foot symptomatology to an in-service event or injury, and the medical opinion of record addressing the etiology of his foot disorder fails to provide such a link. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (holding that a lay person is not considered competent to testify regarding medically complex issues); c.f. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (distinguishing situations in which a layperson is competent to identify the medical condition). Thus, given the Board's finding that the Veteran's continuity of right foot symptomatology is not credible, coupled with the probative VA medical opinion failing to link his current right foot disorder to service, the Board finds that a basis for granting service connection for a right foot disorder has not been presented. Accordingly, the Veteran's appeal is denied. ORDER Service connection for a right foot disorder is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs