Citation Nr: 1234971 Decision Date: 10/09/12 Archive Date: 10/17/12 DOCKET NO. 05-36 573 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a right foot disability. 2. Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The Veteran served on active duty from March 2001 to March 2004. These matters come to the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claims for service connection for bilateral foot and low back disabilities. This case was previously before the Board in July 2009 and May 2011, and was remanded on each occasion for additional development of the record. The issue of service connection for a left foot disability was denied, and the issue of service connection for a neck disability was remanded, in the Board's previous determinations. Based on the additional evidence received, the RO granted service connection for a chronic neck disability in an August 2012 rating action. This decision, accordingly, is limited to the issues set forth on the preceding page. The issue of service connection for a low back disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT There has been no demonstration by competent medical, or competent and credible lay, evidence of record that the Veteran has a right foot disability that is etiologically related to military service. CONCLUSION OF LAW A right foot disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303(b) (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act The Veterans Claims Assistance Act (VCAA) redefined VA's duty to assist the appellant 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). Duty to Notify The notice requirements of the VCAA require VA to notify a Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 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, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In any event, where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). By letters dated June 2004, issued prior to the rating decision on appeal, and November 2006, the RO provided notice to the Veteran regarding what information and evidence were needed to substantiate his 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. Letters dated March and November 2006 advised the Veteran of how the VA assigns a disability rating and an effective date, and the type of evidence which impacts such. Although VCAA notice was not completed prior to the initial adjudication of the claim, the Veteran has not been prejudiced thereby. In this regard, the Board notes that the claim was readjudicated following completion of the VCAA notice. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004). Duty to Assist The record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant. Specifically, the information and evidence that have been associated with the claims file include the service treatment records, VA medical records, and the reports of VA examinations. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. McLendon v. Nicholson, 20 Vet. App. 79 (2006). If VA provides a claimant with an examination in accordance with the duty to assist, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). A VA examination was conducted, and an opinion regarding the etiology of the Veteran's right foot disability has been obtained. The VA opinion was rendered by a medical professional who reviewed the claims folder, clinically evaluated the Veteran, and provided a factual foundation for the conclusions that were reached. Therefore, the Board finds that the opinion is adequate. See Nieves-Rodriguez, 22 Vet. App. at 304. As discussed above, the appellant was notified and made aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran has been an active participant in the claims process by submitting evidence and providing argument. Thus, he has been 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 affected the essential fairness of the adjudication or to cause injury to the claimant. Therefore, any such error is harmless and does not prohibit consideration of these matters. See Conway, supra; Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all the evidence in the appellant's claims file. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. 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 connection may be established for a disability resulting from disease or injury incurred in or aggravated by active 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). In order to prevail on the issue of service connection on a direct-incurrence basis 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). A report of medical history dated February 2001 shows the Veteran denied a history of foot trouble. A clinical evaluation of the feet on the enlistment examination in February 2001 was abnormal. Asymptomatic pes planus was noted. The Veteran reported right foot pain of two weeks duration in May 2001. It was indicated he had pain in the right big toe. Tenderness in the heel was noted. The assessment was to rule out stress fracture of the right heel. He was seen for right heel pain later that month. It was stated that a follow-up X-ray was negative. A possible mild contusion versus mild Achilles tendonitis was noted. The Veteran again denied foot trouble on a report of medical history in December 2002. An examination of the feet was normal. It was indicated the Veteran had a normal arch. On VA examination in July 2004, the Veteran asserted he injured his right foot in basic training. He claimed he landed hard on his foot when coming off a rope and fractured his right foot. He maintained that after the fracture healed, he would experience pain whenever he ran. An examination of the feet showed full range of motion, and there was no swelling or pain to palpation. X-rays of the feet revealed no osseous abnormality or bony fracture, and the joint spaces were well maintained. The diagnosis was history of fracture to the right foot. The Veteran was again afforded a general medical examination by the VA in September 2004. He related a history of a right foot injury when he jumped off a roof and landed on one foot. He said he had swelling of the right foot. He stated he was not sure if he fractured the foot or not. The Veteran asserted his right foot swelled on occasion. The diagnosis was history of trauma to the foot, with no evidence of fracture or dislocation by X-rays. The Veteran complained of right foot pain in November 2004. The assessment was right foot pain-arthralgia. X-rays of the right foot later in November 2004 reveal hallux valgus deformity of the great toe with degenerative changes at the first metatarsophalangeal joint. There was no evidence of any fracture or dislocation and the soft tissue appeared to be normal. VA outpatient treatment records disclose the Veteran was seen in August 2008 and reported an injury to the right great toe. The diagnosis was nail injury. On VA examination in October 2009, the examiner noted he reviewed the claims folder. The Veteran complained of right foot pain. He provided a history of an injury to the right foot in service when he fell off a rope. He said he was treated at that time with wrapping and medication, with a fair response and no side effects. X-rays of the right foot revealed minimal degenerative changes at the first metatarsophalangeal joint. No acute fracture or dislocation was seen. The examiner stated the X-rays of the right foot were normal. The diagnosis was normal right foot with history of previous injury. The examiner commented that any current right foot disability was not caused by active service. The examiner provided the rationale that there was no residual injury to the right foot. It was also noted that clinically, there was no symptomatology and X-rays were normal. The examiner was requested to provide a clarifying opinion. In January 2010, the examiner stated that whatever has been reported concerning the X-rays of the right foot was the opinion of the reviewing physician. He indicated he reviewed the X-rays and the findings he reported were his interpretation of the X-rays. He stated the opinion he expressed in October 2009 remained the same. The Veteran was again examined by the VA in June 2011. The examiner noted he reviewed the claims folder and medical records. The Veteran asserted that he noticed foot pain in basic training. He claimed that after climbing a rope, he jumped off and landed wrong on the right foot, injuring it. He was told he had a fracture and was treated conservatively. Once it healed, he continued to have pain and difficulty in marching. He reported he still had pain after service. An examination demonstrated painful motion and tenderness, but there was no instability, swelling or weakness. X-rays of the right foot revealed mild degenerative changes and pes planus. The diagnosis was right foot strain. In July 2011, a VA physician noted he reviewed the service treatment records that were provided. The examiner acknowledged the service treatment records showed evidence of a right foot condition. He observed the right foot was evaluated in 2001, and it was determined to be either a contusion or tendonitis. While there was initial concern of a stress fracture, X-rays were negative. He pointed out that during a physical examination in 2002, there were no complaints or objective findings of a right foot condition. Thus, the examiner opined the Veteran's current right foot condition is less than likely as not related to service. The record reflects the Veteran had asymptomatic pes planus when he entered service. The service treatment records show no other indication of pes planus and, in fact, he was noted to have a normal arch in December 2002. The Board acknowledges the Veteran's assertions that he has a right foot disability that is related to service. However, as a lay person, he is not competent to diagnose a foot disability, or render an opinion as to its cause or etiology, as that requires medical expertise which he is not shown to possess. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed.Cir.2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). The Veteran is competent to testify as to the fact he has experienced trouble with his right foot since service. However, where the determinative issue involves a question of medical diagnosis or causation, only individuals possessing specialized medical training and knowledge are competent to render such an opinion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The evidence does not reflect that the Veteran currently possesses a recognized degree of medical knowledge that would render his opinions on medical diagnosis or causation competent. The Board points out the Veteran claims he injured his right foot during service when he fell off a rope. While it is true the Veteran received treatment for right foot complaints in service, the record does not show he reported any such injury. The only medical opinions of record concluded that any right foot disability the Veteran has is not related to service. The Board finds these conclusions to be of greater probative value than the Veteran's allegations regarding the etiology of any right foot disability. In this regard, the Board points out that the VA physician noted in his July 2011 opinion that while the Veteran had been treated for complaints referable to the right foot in 2001, there were no pertinent complaints or findings on physical examination in 2002. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for a right foot disability is denied. REMAND The Veteran also asserts service connection is warranted for a low back disability. The service treatment records reflect the Veteran was seen on a number of occasions for complaints of low back pain. In July 2003, he reported the initial insult to his low back occurred while practicing buddy carry in the sand. The impression was sacroiliitis. Following the initial VA examination in July 2004, the pertinent diagnosis was musculoskeletal pain of the low back. On VA examination in October 2009, the Veteran complained of low back pain. He claimed he developed low back pain in service, and stated he had to carry heavy loads. X-rays of the lumbosacral spine revealed minimal retrolisthesis of L5 with encroachment of the neural foramina. The examiner stated the X-rays were normal. The diagnosis was chronic lumbar strain. The examiner concluded that any current low back disability was not caused by service. He added the Veteran's low back complaints were mainly subjective and no significant residuals were found on examination. In its May 2011 remand, the Board directed a clinician to review the X-rays of the lumbar spine and state whether the Veteran had a current low back disability. If so, the clinician was to provide an opinion concerning its etiology. On VA examination of the spine in June 2011, the Veteran reported an in-service injury to his upper back. He denied any low back pain or problems. It does not appear there was a comprehensive examination of the lumbar spine. There was no diagnosis concerning the low back. A VA physician reviewed service treatment records in July 2011 and stated there was evidence of a low back condition. The physician did not provide any opinion concerning the existence or etiology of any current low back disorder. The Board is obligated by law to ensure that the RO complies with its directives, as well as those of the United States Court of Appeals for Veterans Claims (Court). The Court has stated that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request he provide the names, addresses and dates of treatment (VA and non-VA) from whom he has received treatment for low back complaints since his discharge from service. After securing the necessary authorizations for release of this information, the RO should seek to obtain copies of all treatment records referred to by the Veteran, not already of record. 2. Thereafter, schedule a VA orthopedic examination to determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran has a current low back disability that is related to the symptoms he experienced in service. The rationale for any opinion should be set forth. The claims folder should be made available to the examiner in conjunction with the examination. 3. Following completion of the above, the RO should review the evidence and determine whether the Veteran's claim may be granted. If not, he and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs