Citation Nr: 1229670 Decision Date: 08/28/12 Archive Date: 09/05/12 DOCKET NO. 04-37 221 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee THE ISSUE Entitlement to service connection for bilateral foot disorders (other than service-connected post-operative hammertoe of the left and right 5th toes). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The Veteran served on active duty from October 1977 to October 1980 and from April 1984 to April 1991. This appeal initially came to the Board of Veterans' Appeals (Board) from a February 2003 rating decision. In September 2005, the Board remanded the present matter for due process considerations and to schedule a videoconference hearing before a Veterans Law Judge at the RO. The videoconference hearing was held by the undersigned Veterans Law Judge in November 2005. In July 2006, the Board remanded the claim to address due process considerations, to provide adequate notice pursuant to the VCAA duties to notify and assist, and to schedule a VA medical examination and opinion regarding the etiology of the Veteran's current foot conditions. In a decision dated March 2008, the Board denied the Veteran's claim of entitlement to service connection for a bilateral foot disorder. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In October 2009, the Court vacated the Board decision and remanded this claim to the Board pursuant to the terms of a Joint Motion for Remand (JMR). In March 2010, the Board requested an expert medical opinion from the Veterans Health Administration (VHA). The opinion was received in August 2010. Following the receipt of the expert medical opinion, the Board remanded the Veteran's claim in December 2010 to advise the Veteran that she could have her doctor submit an additional report which more clearly explained his opinion. Upon review of the claims file, the Board is satisfied that the development directed by the December 2010 remand has been completed, and there is accordingly no prejudice for the Board to proceed. See Stegall v. West, 11 Vet. App. 268 (1998). In a statement dated in May 2012, the Veteran wrote that she was requesting a video conference hearing. She added that per the Court order for remand her claim was not being adjudicated in accordance with the Court's remand instructions. However, she has not articulated how VA has failed, or is failing, to comply with the Court order (and it is noted that the JMR to which she is presumably referring simply directed that the case be returned to the Board for the Board to provide additional reasons and bases, which the Board now intends to do, having first obtained an expert medical opinion). As such, while the Veteran has requested a second hearing, she has provided no reason why a second hearing should be scheduled. She already testified at a hearing before the Board, as is her statutorily prescribed right; and, she has not identified, nor is the Board aware of, any authority that would mandate that she be provided with a second hearing, as the VLJ who conducted her hearing continues to be employed by the Board, and there has been no suggestion of any impropriety with either the conduct of or the recording of the Veteran's hearing. Indeed, while the Veteran contends that her claim is being adjudicated incorrectly, she has not provided any such explanation, despite having her case pending for many years. Her contentions are well known at the present time, and will be addressed herein, such that the Board is satisfied that an additional hearing would only serve to further delay resolution of the Veteran's claim. The Board finds no adequate basis for a second hearing has been provided and, therefore, the Board will now address fully the Veteran's claim. The request for a second hearing is denied. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also her file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. The evidence establishes that the Veteran's pes cavus is a congenital foot defect. 2. The Veteran's congenital pes cavus was not permanently aggravated by her time in military service, to include as a result of the use of ill-fitting combat boots. 3. With the exception of bilateral hammertoes, no chronic foot disability was superimposed on the pre-existing congenital pes cavus. CONCLUSION OF LAW Criteria for service connection for a bilateral foot disorder, other than hammertoes, have not been met. 38 U.S.C.A. 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Service Connection 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 service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Continuity of symptomatology may be established if (1) the condition was "noted" during service; (2) there is evidence of post-service continuity of the same symptomatology; and (3) there is medical, or in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Savage v. Gober, 10 Vet. App. 488 (1997). However, continuity of symptomatology may be established only where the condition was noted during service (or in the presumptive period) and was not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Nevertheless, as long as the condition is noted at the time a veteran was in service such noting need not be reflected in any written documentation, either contemporaneous to service or otherwise. Savage v. Gober, 10 Vet. App. 488, 496 (1997). Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. Id. The Veteran claims that her current bilateral foot disability was caused by ill-fitting combat boots during service and by military activities. In September 2011, she wrote a detailed statement asserting that she had multiple foot problems (aside from her service connected hammertoes of the bilateral 5th toes, which is not in dispute) which she believed were the result of her time in military service. She asserted that at the very least that her bilateral foot condition should be considered secondary to her bilateral knee condition. She added that she was unable to properly treat her feet because her bilateral knee condition precluded the wearing of a cast for ten weeks. In October 2010, the Veteran explained that she was presumed in sound condition upon entry into the U.S. Marine Corps, and that during her approximately ten years of military service she was denied appropriate healthcare, such as the ability to obtain/wear orthotics. She maintains that the requirement to wear combat boots without the use of any modifications led to the development of pes cavus (acquired), pain, blistering, bleeding, calcaneal bone spurs, hammer toes, bursitis, bursitis of the Achilles tendon bilaterally. She asserted that Diagnostic Codes 5003, 5019, 5275, 5277, 5278, 5279, 5282, 5284, 5311 and 5312 were applicable to her claim. In September 1991, the Veteran first filed a claim for service connection for knee and back disabilities, but no made no mention of her feet at that time. Her first foot claim was not received until September 2002, when the Veteran reported that she was seeking service connection for her feet, explaining that she had undergone surgery on both feet in February 1993. Service treatment records show that the Veteran specifically denied having ever experienced any foot trouble on medical history surveys completed in March 1984 and March 1986; and her feet were found to be normal on an enlistment physical in March 1984 and on reenlistment physicals in March 1986 and January 1987. She was treated for number of foot related complaints while in service; including treatment for blisters as a result of marching in September 1985, October 1985, August 1986, and April 1987. As a result of these symptoms, she was put on light duty on several occasions. In August 1988, she was diagnosed with acute, nonspecific bursitis of the feet, she reported believing that she had fracture several toes in her right foot several months earlier. In January 1990, the Veteran reported right calf spasms, adding that walking, running, standing, and boots all caused increased pain. In April 1990, the Veteran complained about knee pain with running in combat boots. In October 1990, the Veteran was seen by a Medical Board for an evaluation of her diagnosed bilateral symptomatic pes cavus (as well as several knee problems). It was noted that as a result of knee pain, she had been on light duty since February 1990. On examination the Veteran was noted to have rigid pes cavus bilaterally, which she asserted had been stable throughout her adult life. The Medical Board concluded that the Veteran was incapable of her full duties (again because of foot and knee problems). Following service, the Veteran was evaluated by vocational rehabilitation in April 1991, but while her knees were noted to present a problem, there was no mention of her feet, providing evidence against this claim. In December 1992, it was noted that the Veteran had pain in both little toes due to bone spurs and a swollen bursa. In February 1993, her feet were operated on, but x-rays of the Veteran's feet in February 1993 were interpreted as normal. In April 1993, it was noted that the Veteran's 5th toes looked very good and the medical professional concluded that the Veteran was recovered enough to perform work fulltime. In a request for records in November 2002, the Veteran asserted that her service treatment records showed that she had foot problems from badly fitting combat boots. She stated that she had to run on a daily basis while in service and participate in marches. She also indicated that she was supposed to have her combat boots fitted with orthotics, but that her command would not allow her to seek treatment for her chronic foot pain. The Veteran was initially denied service connection for a bilateral foot condition in a February 2003 rating decision, which noted the blisters in service, but found that no chronic foot disability had begun during service, and while she had a arthroplasty of both little toes in 1993, this occurred more than a year and a half after separation. The Veteran disagreed with this assessment, arguing in her notice of disagreement that she could never be properly fitted for combat boots and as a result she asserted that she has bone spurs on both heels and in the small toes of both feet. She argued that the bone spurs were the result of improperly fitted combat boots. In March 2004, the Veteran was seen by M.H., DPM, at VA podiatry. It was noted that she walked with obvious pain with complaints of posterior an plantar heel pain bilaterally. The Veteran asserted that her pain had its onset in 1978 while in military service. She was thought to have cavus foot bilaterally with contracted lesser digits. The Veteran had pain with palpation to medial plantar fascia, medial calcaneal nerve, and central plantar heel, and with medial/lateral compression. M.H. diagnosed heel spur by x-ray with heel neuritis and probably sub-clinical stress fractures. The Veteran was casted for biomechanical orthotics. M.H. saw the Veteran again in April 2004 at which time she was still limping. The Veteran was using New Balance shoes with orthotics. M.H. assessed the Veteran with possible stress fractures in her heels bilaterally. Later in April 2004, M.H. wrote a letter indicating that having examined the Veteran and reviewed her history, he was of the opinion that her pedal pain and pathology in all probability had been caused by the combination of her military footgear and the activities she was instructed to do while on active duty. However, he provided no rationale for his conclusion, limiting the probative value of the opinion. X-rays in June 2004 revealed calcaneal spurs bilaterally. The Veteran was noted to be ambulating with a slow gait. In July 2004, the Veteran testified at a RO hearing. She stated that she was first treated for her feet in January 1978 when she had blisters on her heals secondary to wearing her combat boots. Her representative asked her what the foot condition was that she was claiming, to which the Veteran responded that she had a number of issues with her feet, including unhealed stress fractures in both heels as well as bone spurs and heel calcifications. She stated that following service she was first seen by VA in February 1992, and then operated on for the hammer toes. She stated that following the surgery her feet continued to bother her somewhat. She reported taking ten weeks off from work. She stated that she currently used orthotics. Following the hearing, service connection was granted for hammertoes of both feet; but service connection for a bilateral foot condition, other than hammertoes, continued to be denied. The Veteran responded in her substantive appeal that the fact that ill-fitting boots caused hammertoes also supported the conclusion that her current supinated foot structure, retrocalcaneal bursitis, retrocalcaneal erostosis and Haglund's deformity, were also caused by the footwear she was provided on active duty. The Veteran was provided with a Board hearing in November 2005, where she testified that she was last treated for her feet in 2004 at which time it was recommended that she wear casts on both feet for 10 weeks to straighten out her stress fractures and improve her gait. Importantly, the Veteran asserted at hearing that she first experiencing foot problems in 1978 when her combat boots were causing blisters. However, it must be noted that the Veteran specifically denied have ever experienced any foot trouble on medical history surveys completed in March 1984 and March 1986; and the Veteran's feet were found to be normal on an enlistment physical in March 1984 and on reenlistment physicals in March 1986 and January 1987. Such facts only undermine her testimony. The Veteran also testified that she was advised to use Ace bandages to help protect her feet. She asserted that she was given limited duty, but that it was greatly discouraged by the "higher ups", adding that her command had denied her request to get orthotics made. She suggested that her bilateral foot condition had caused knee and back problems. Following the Board hearing, the Veteran was provided with a VA examination in November 2006 at which she once again conferred her belief that her foot problems were the result of ill-fitting combat boots in service. The examiner found objective evidence of painful motion and swelling. X-rays showed no evidence of acute fracture or subluxation. Small inferior calcaneal spurs were seen bilaterally. The examiner stated that the hammertoes were a congenital condition, but found that the condition was aggravated by the Veteran's service. The examiner diagnosed the Veteran with Haglund's deformity, plantar fasciitis, varicosities, clawtoes, anterior cavus, hypermobile first and fifth rays. The examiner noted that no bone deformities were noted in March 1984, but hammertoes were seen in 1986 and foot pain and calluses were documented in 1988. The examiner opined that it was less likely than not that the Veteran's foot pain, caused by the use of ill-fitting boots, was aggravated by the two month duration of pain and concern for calluses in 1988 or by the nail problem in 1989. The examiner also addressed the opinion from M.H. noting that the Veteran clearly had multiple foot pathologies (as noted during the physical examination). However, the examiner noted that the Veteran had been treated in service for calluses and blisters, hammertoes and digit pain (which required surgery), and subungual hematoma; all of which the examiner acknowledges were caused by ill-fitting boots during service. However, the examiner noted that at the time of the examination, the Veteran presented with orthotics and did not have any calluses/blisters, any edema, or any subungual hematomas; and the examiner thus concluded that the Veteran was not suffering any long term disabilities from her feet as a result of the boots in service. The examiner acknowledged that the Veteran had received treatments while in the military which could have been caused by her boots, but she simply did not believe that the Veteran's current pain was a direct use of the military boots or activities. The Veteran's representative argued that there was no intercurrent causes that would have damaged the Veteran's feet post military service. The Board denied the Veteran's claim in March 2008. The Veteran appealed the decision and the claim was remanded to the Board pursuant to a JMR, which in essence directed the Board to more thoroughly weigh and discuss the medical evidence of record. In response, the Board referred the claim to a podiatrist and asked him to address the Veteran's contentions, diagnose any bilateral foot disorder(s) present, and then for each diagnosed foot disorder, to 1) provide an opinion as to whether it is at least as likely as not (a 50 percent probability) that such disorder was related to any of the Veteran's periods of active duty service from October 1977 to October 1980, and from April 1984 to April 1991; and 2) provide an opinion as to whether it is at least as likely as not that any diagnosed foot disorder was caused by or permanently worsened by the Veteran's service-connected bilateral hammertoe condition. In August 2010, the Veteran's claims file was reviewed by a doctor who noted the Veteran's complaints of foot pain since 1978 and her use of combat boots during service. With regard to hammertoes and digital pain, the doctor stated that the condition could be attributed to ill-fitting boots, and had already been addressed by surgery in 1993. The doctor noted that the Veteran no longer experienced calluses or blisters, adding that he did not agree that the Veteran was suffering from any long term disabilities as a result of ill-fitting boots. Rather, he felt that these were likely acute problems while she was in military service, as no residual problems were noted in 2004. With regard to subungual hematoma, the doctor stated that such a condition was not shown to have any long term effects on the Veteran's complaints. He added that from a review of the records it was clear that the Veteran's current foot problems were more likely due to her congenital foot structure, explaining that the Veteran was born with high arched feet (pes cavus), which led to contracted toes and hammertoes. The doctor also found that the 2004 examination showed limb-length discrepancy, a supinated foot structure, and retrocalcaneal bursitis and retrocalcaneal exostosis/Haglund's deformity. The doctor opined that if any of those diagnoses were attributable to ill-fitting boots, there would not be a lapse of many years (nine specifically) before manifestations would occur. He added that hammertoes did not contribute to the Veteran's current concerns, and, if anything, the hammertoes were the result of the pes cavus and not the ill-fitting boots. In December 2010, the Board remanded the Veteran's claim in order to provide her with an opportunity to have Dr. M.H. clarify his contentions, but it does not appear that any additional medical opinion was submitted. Private treatment records from Dr. K.M. in April 2011 show that the Veteran was being treated for chronic bilateral foot pain. She reported that her left foot pain was at the heel which she stated had been causing problems for many months. She also complained of bilateral forefoot pain. The Veteran reported having undergone physical therapy and asserted that her abnormal gait might have been aggravating her foot problems. It was noted that she had received injections for plantar fasciitis in 2007-08 and that she was seen for bursitis injections in her Achilles in approximately 2008-09. The doctor recommended ice and new orthotics. In February 2011, the Veteran's daughter wrote a statement, indicating that she recalled witnessing her mother tape her feet, wear band aids and extra socks while in the military. However, there is no dispute that the Veteran experienced foot problems while in the military as she frequently complained about symptoms such as blisters. However, the issue is whether the Veteran has a current, chronic foot disability, other than hammertoes that was caused or aggravated by service. As a result, this statement is of limited probative value. In September 2011, the Veteran wrote that she was being treated by a private podiatrist for the foot conditions that had been diagnosed by VA. She added that she had multiple service connected orthopedic conditions which prevented her from pursuing the ordinary activities of an adult her age. In February 2012, the Veteran asserted that her pes cavus was acquired during service, but she has not supplied any medical evidence to support such a conclusion. She maintains that it is severe and the result of trauma to both feet that was incurred during active duty. The Veteran has also alleged that the presumption of soundness should apply to her claim and mandate a grant of service connection. As explained, service connection normally 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 disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). As has been discussed, no foot disability was noted on the Veteran's enlistment physical and it is documented that she experienced some foot problems while on active duty. However, the Veteran's claim is different from the standard service connection claim in that her pes cavus is shown by the evidence to be a congenital condition. It is acknowledged that the Veteran's enlistment physical did not diagnose pes cavus, nor did reenlistment physicals. In fact, no reference to pes cavus was made until the Veteran was examined by the Medical Board just prior to her medical discharge from service. In the Medical Board's report, it was noted that she had been diagnosed with bilateral symptomatic pes cavus that was rigid bilaterally, and the Veteran stated that it had been stable throughout her adult life. Such a statement, that her foot had been stable for her adult life, supports the conclusion that the high arches were, in fact, a congenital condition, as a congenital condition would have been present from birth. It is worth noting that the Veteran did not report that her foot structure had changed during service. The conclusion that the Veteran's pes cavus was a congenital condition is further substantiated by the VA doctor in 2010 who stated that the Veteran was likely born with high arched feet (pes cavus ). Later in the opinion, the doctor referred to the Veteran's pes cavus as a "congenital foot structure." As such, the VA doctor clearly indicated that the Veteran's pes cavus was congenital in nature. No other medical opinions have addressed whether the Veteran's foot condition was congenital. The Board acknowledges the Veteran's assertions made in the context of the current compensation claim that her foot condition began in service. The Veteran is considered competent to relate foot-related symptoms (or, in this case, to deny any symptoms prior to service). See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection). Thus, the Veteran is considered competent to report blisters and foot pain (and indeed such complaints are documented in the service treatment records). Additionally, the Veteran is considered competent to report that her foot structure had been stable throughout her adult life. The Veteran did submit an article describing pes cavus and noting that it could be either hereditary or acquired; and the Court has held that a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999); see also Sacks v. West, 11 Vet. App. 314 (1998) and Wallin v. West, 11 Vet. App. 509 (1998). However, in the present case, no medical opinion has been submitted even suggesting that the Veteran's pes cavus was acquired, and as described above, the highly probative and credible opinion which was recently obtained explained that the Veteran's pes cavus was likely congenital. The Veteran has argued that her pes cavus was acquired, but she has not explained why. Moreover, any current assertion that her foot condition changed during service would be refuted by her statements to the Medical Board that her foot structure had remained stable throughout her adult life. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by a veteran). Therefore, as described, the evidence convincingly supports the conclusion that the Veteran's pes cavus was a congenital condition. Unfortunately, congenital or developmental defects are not considered to be diseases or injuries within the meaning of the applicable legislation and are not subject to service connection. 38 C.F.R. §§ 3.303(c), 4.9. See Winn v. Brown, 8 Vet. App. 510, 516 (1996), appeal dismissed, 110 F.3d 56 (Fed. Cir. 1997), and cases cited therein. Service connection is only possible if there is evidence of additional disability due to aggravation during service of the congenital defect by superimposed disease or injury. See VAOPGCPREC 82-90; Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); VAOPGCPREC 67-90; and VAOPGCPREC 11-99. A distinction is also drawn as to whether a congenital condition is a disease or defect. For purposes of determining whether a disorder is a congenital defect or a familiar disease, VA interprets the term "disease" in 38 U.S.C. §§ 310, 331, and the term "defects" in 38 C.F.R. § 3.303(c), as being mutually exclusive. "Disease" is broadly defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. See VAOPGCPREC 82-90 (citing DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 385 (26th Ed. 1974)). The term "defect," viewed in the context of 38 C.F.R. § 3.303(c), is defined as a structural or inherent abnormality or conditions which are more or less stationary in nature. As noted in VAOPGCPREC 82-90, a Federal court, in drawing a distinction between "disease" and "defect," indicated that disease referred to a condition considered capable of improving or deteriorating, whereas defect referred to a condition not considered capable of improving or deteriorating. See Durham v. United States, 214 F.2d 862, 875 (D.C. Cir. 1954); see also United States v. Shorter, 343 A.2d 569, 572 (D.C.1975). Here, it would appear that the foot deformity (pes cavus or high arch) should be considered to be a defect, as it is structural in nature. The Veteran has argued that the presumption of soundness should apply to her claim since no foot disability was noted on her enlistment physical. However, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has held that the presumption of soundness found in 38 U.S.C.A. § 1111 does not apply to disorders, such as congenital defects, which are expressly excluded from qualification for service connection by 38 C.F.R. § 3.03(c). See Morris v. Shinseki, 678 F.3d 1346 (Fed. Cir. 2012). Had the presumption of soundness applied, the Board would have had to shown by clear and unmistakable (obvious or manifest) both that an injury or disease existed prior to service and that it was not aggravated by such service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). However, because the presumption of soundness is inapplicable, the burden is shifted to the Veteran to establish that her pre-existing congenital defect was aggravated by her time on active duty. This has not been done. In fact, there is significant evidence against this finding, including some of the Veteran's own statements made in service. Service connection may be granted for aggravation of a pre-existing injury suffered or disease contracted in line of duty, meaning that a pre-existing injury or disease increased in disability during service unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153. However, aggravation of a pre-existing injury or disease will not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306. Moreover, temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted with symptoms, has worsened. Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Accordingly, "a lasting worsening of the condition" - that is, a worsening which existed not only during service and/or at the time of separation but also continued thereafter - is required. See Routen v. Brown, 10 Vet. App. 183, 189 n. 2 (1997); see also Verdon v. Brown, 8 Vet. App. 529, 538 (1996). Thus, the Board must determine first whether the Veteran's pre-existing congenital foot defect permanently increased in severity and, if so, whether the worsening was beyond the natural progression of the disease. After a review of all the evidence of record, lay and medical, the Board ultimately finds that the weight of the evidence shows that aside from bilateral hammertoes, no disease or injury was superimposed upon the Veteran's preexisting congenital foot defect (pes cavus) during active service, which is required to establish service connection for preexisting congenital defect. See VAOPGCPREC 82-90. Although the service treatment records show that the preexisting foot defect became temporarily more symptomatic during service, the weight of the evidence shows no permanent worsening of the preexisting congenital foot defect. That is not to say that an additional disability was not superimposed on the Veteran's congenital pes cavus; one was, as her bilateral hammertoes have been service connected. Such aggravation was acknowledged by the VA doctor in his August 2010 opinion letter in which he stated that, if anything, the Veteran's congenital foot structure contributed to the hammertoes, noting that the Veteran was likely born with pes cavus which led to contracted toes and hammered toes (bone spurs and bursitis). The Board acknowledges that other foot conditions were treated in service, but concludes that they were not permanently aggravated by the service. For example, the doctor noted that the Veteran experienced calluses and blisters in service, but found that she no longer experienced such symptoms, and he thus concluded that while such symptoms may have been caused by ill-fitting boots in service, such symptoms constituted an acute problem which resolved when the Veteran stopped wearing the boots. Likewise, the doctor noted the subungual hematoma that had been treated in service, but again found that such a condition did not have any current impact. It is true that the VA examiner in November 2006 stated that the Veteran's service treatment records showed 1) calluses and blisters; 2) hammertoes and digit pain; and 3) subungual hematoma as a single occurrence; and opined that it was entirely reasonable to assume that those three conditions were aggravated or caused by her military foot gear and activities. Indeed, if the opinion stopped there, an argument for aggravation could be made. However, the examiner continued, stating that she did not believe that the Veteran had any long term disabilities of her feet from the ill-fitting boots. The examiner added that it was clear that the Veteran received foot treatment in service, but did not believe that her present foot pain was the result of the use of combat boots and military activities. As such, this opinion also fails to support the conclusion that a condition other than hammertoes was aggravated by the Veteran's military service. The Board acknowledges the fact that a VA doctor stated in April 2004 that the Veteran's pedal pain and pathology in all probability was caused by the combination of her military footgear and military activities. However, this is the only medical opinion which even remotely supports her claim; and, as has been explained, this opinion is conclusory in nature, it does not address whether the Veteran's pes cavus was a congenital condition, and it does not specifically identify what conditions are meant by "pedal pain and pathology". It is simply unclear when the doctor refers to "pedal pain" whether he means the hammertoes, the pes cavus, or some other condition. To this end, it is noted that the hammertoes have been service connected already, and a temporary flare-up of foot pain would not necessarily require service connection for a congenital condition such as the Veteran's pes cavus. As such, this opinion is simply considered to be insufficient to establish that a congenital foot condition was aggravated by the Veteran's military service and entitled to low probative weight. Nevertheless, VA has endeavored to obtain multiple subsequent medical opinions regarding the Veteran's feet. These opinions have been supported by more complete reasoning, and the opinions address whether the Veteran's pes cavus was a congenital condition; a determination which is central to the resolution of this claim. Moreover, the 2010 opinion was well articulated and defended, and it was grounded in the evidence of record. As such, the Board concludes that the most recent opinion is the most probative and therefore it is afforded the greatest amount of weight. In summary, having reviewed the entirety of the lay and medical evidence, the Board is satisfied that while the Veteran experienced various foot symptoms in service as a result of her congenital pes cavus, the pes cavus itself was not permanently aggravated by the Veteran's military service, and aside from her service connected bilateral hammertoes, no other disabling foot condition was shown to have been superimposed on the pes cavus. Therefore, the criteria for service connection have not been met, and the Veteran's claim is denied. II. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in July 2006, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. The letter also informed the Veteran how disability ratings and effective dates were established. The Board finds that any defect concerning the timing of the notice requirement was harmless error. Although the notice provided to the Veteran was not given prior to the first adjudication of the claim, the Veteran has been provided with every opportunity to submit evidence and argument in support of his claim and ample time to respond to VA notices. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Additionally, the Veteran's claim was readjudicated following completion of the notice requirements. In any event, the Veteran has neither alleged, nor demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Thus, adjudication of his claim at this time is warranted. As to VA's duty to assist, 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). The RO has obtained relevant VA treatment records and private records as identified and authorized by the Veteran. The Veteran was provided an opportunity to set forth her contentions during a formal RO hearing in July 2004 and a videoconference hearing before the undersigned Veterans Law Judge in November 2005. The Veteran was afforded a VA medical examination in November 2006, and a medical opinion was obtained in August 2010. It is noted that in October 2010, the Veteran wrote a statement citing 38 C.F.R. § 3.328 and arguing that the medical opinion that was obtained was a violation in that it was conducted by a doctor employed by VA. However, the Board points out that the statute that she referenced states that an independent medical opinion may in certain instances be solicited, but there is no prohibition on a VA medical professional providing the opinion as here. Moreover, there is no indication that the Veteran's claim is unusually complex or unique such that the medical expertise of the selected doctor would be inadequate to evaluate the medical merits of her claim. Additionally, there has been no showing that VA is in any way biased against the Veteran such that she could not receive fair treatment from VA. In this regard, it is important for the Veteran to understand that VA medical providers are never influenced by the VA to provide negative opinions (this would be a fundamental violation of our service to Veterans) and are, in fact, encouraged to give Veterans the benefit of any doubt in their reports. Therefore, VA was under no obligation to order an independent medical opinion. Significantly, neither the veteran nor her 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. Hence, no further notice or assistance to the veteran is required to fulfill VA's duty to assist the veteran 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). As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER Service connection for chronic bilateral foot conditions, other than bilateral hammertoes, is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs