Citation Nr: 1300900 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 07-02 088 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for bilateral pes cavus with hammertoes. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Kessel, Counsel INTRODUCTION The Veteran had active military service from August 1971 to May 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In January 2010, the Board reopened a previously denied claim of service connection for a foot disability characterized as bilateral pes cavus with hammertoes and metatarsalgia. At that time, the Board also remanded the reopened claim to the agency of original jurisdiction (AOJ) for additional development. In May 2011, while the case was in remand status, the Appeals Management Center (AMC) granted service connection for a foot disability characterized as painful calluses and metatarsalgia. As the AMC continued to deny service connection for a separate and distinct foot disability characterized as bilateral pes cavus with hammertoes, the original claim was essentially bifurcated. Subsequently, in February 2012, the Board remanded the claim of service connection for bilateral pes cavus with hammertoes to the AOJ for additional development. FINDINGS OF FACT 1. The Veteran's bilateral pes cavus with hammertoes is a developmental defect. 2. The Veteran's bilateral pes cavus with hammertoes was not aggravated by his active military service or subject to a superimposed disease or injury during service. 3. The Veteran's bilateral pes cavus with hammertoes is not caused, or aggravated by, his service-connected painful calluses and metatarsalgia. CONCLUSION OF LAW The criteria for service connection for bilateral pes cavus with hammertoes have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.57 (2012); 38 C.F.R. § 3.310 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Board finds that all notification action needed to make a decision as to the claim on appeal has been accomplished. Through March 2004, September 2007, and February 2012 notice letters, the Veteran and his representative were notified of the information and evidence needed to substantiate his claim of service connection. Pursuant to the Board's February 2012 remand, the February 2012 letter told the Veteran how to substantiate the claim on a secondary basis. Additionally, the September 2007 and February 2012 letters provided the Veteran with the general criteria for assigning disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Although the complete notice was not provided until after the RO initially adjudicated the Veteran's claim, the claim was properly re-adjudicated in September 2012, which followed the adequate notice. See Prickett v. Nicholson, 20 Vet. App. 370, 376-77 (2006). The Board also finds that the March 2004, September 2007, and February 2012 notice letters satisfy the statutory and regulatory requirement that VA notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)). In those letters, the Veteran was notified that VA was responsible for obtaining relevant records from any Federal agency and that VA would make reasonable efforts to obtain relevant records not held by a Federal agency, such as from a state, private treatment provider, or an employer. Additionally, the notice letters asked the Veteran to submit medical evidence, opinions, statements, and treatment records regarding his claimed disability. Consequently, a remand of the service connection issue for further notification of how to substantiate the claim is not necessary. There is no indication that any additional action is needed to comply with the duty to assist in connection with the issue on appeal. The Veteran's service treatment records have been obtained and associated with the claims file, as have treatment records from the VA Medical Centers (VAMCs) in Chicago, Illinois (Hines facility) and Milwaukee, Wisconsin. Private treatment records from John H. Stroger, Jr. Hospital of Cook County have also been obtained. The record reflects that VA was informed in April 2008 that the Social Security Administration (SSA) found the Veteran to be disabled as of January 2004. Although records from SSA have not been obtained, the Board does not find that a remand to request the records is necessary. In Golz v. Shinseki, 590 F.3d 1317, 1320 (Fed. Cir. 2010), the United States Court of Appeals for the Federal Circuit (Federal Circuit) indicated that "the duty to assist is not boundless in scope" in addressing whether SSA records must be obtained. The Federal Circuit noted that VA has a duty to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim. Id.; see also 38 U.S.C.A. § 5103A(a)(1). However, VA is not required to assist a claimant in obtaining identified records if no reasonable possibility exists that such assistance would aid in substantiating the claim. Golz, 590 F.3d at 1320; see also 38 U.S.C.A. § 5103A(a)(2). The Federal Circuit emphasized that not all medical records or SSA disability records must be sought-only those that are relevant to the Veteran's claim. Golz, 590 F.3d at 1321. In the Veteran's case, as detailed in the analysis section, the salient issues pertaining to his claim are whether his bilateral pes cavus is a congenital disease or defect, whether the bilateral pes cavus was aggravated by service or was superimposed on another disability, and whether his bilateral pes cavus is caused by, or aggravated by, his service-connected painful calluses and metatarsalgia. The Board does not find that the Veteran's SSA records are relevant to his claim because there is no reasonable possibility the records would contain evidence pertinent to these complex medical questions. Significantly, the Veteran has not otherwise made a specific allegation that the SSA records would be relevant. Consequently, the Board does not find that a remand is necessary because no reasonable possibility exists that such assistance would aid in substantiating the claim. See Golz, 590 F.3d at 1320-21. Additionally, in March 2010, the Veteran was provided a VA examination in connection with his claim, the report of which is of record. This was done pursuant to the Board's January 2010 remand. A March 2012 addendum opinion from the examiner was obtained pursuant to the Board's February 2012 remand. The examination and opinion reports contain sufficient evidence by which to decide the claim, particularly concerning whether the Veteran's bilateral pes cavus is a congenital disease or defect, whether his bilateral pes cavus was aggravated by service or was superimposed on another disability, and whether his bilateral pes cavus is caused by, or aggravated by, his service-connected painful calluses and metatarsalgia. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination, it must provide an adequate one). Furthermore, the Veteran was afforded a hearing before the RO in October 2006 and before the Board in November 2009, the transcripts of which are also of record. Significantly, the Veteran has not otherwise alleged that there are any outstanding medical records probative of his claim on appeal that need to be obtained. Thus, VA has properly assisted the Veteran in obtaining any relevant evidence. II. Analysis Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). Under 38 C.F.R. § 3.310, service connection may also be granted for disability that is proximately due to or the result of a service-connected disease or injury, or for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Board notes that, during the pendency of the appeal, there was an amendment to the provisions of 38 C.F.R. § 3.310. See 71 Fed. Reg. 52744-47 (Sept. 7, 2006) (codified at 38 C.F.R. § 3.310 (2012)). The amendment sets a standard by which a claim based on aggravation of a nonservice-connected disability by a service-connected one is judged. Although VA has indicated that the purpose of the regulation was merely to apply the United States Court of Appeals for Veterans Claim's (Court) 1995 ruling in Allen, it was made clear in the comments to the regulation that the 2006 changes were intended to place a burden on the claimant to establish a pre-aggravation baseline level of disability for the non-service-connected disability before an award of service connection based on aggravation may be made. This had not been VA's practice, which strongly suggests that the revision amounts to a substantive change in the regulation. Given what appear to be substantive changes, and because the Veteran's claim was pending before the regulatory change was made, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the revision, which version favors the Veteran. See 38 C.F.R. § 3.310 (2006). The Veteran asserts that he has bilateral pes cavus with hammertoes that is the result of active military service. At his November 2009 Board hearing, he testified that he did not have a foot condition prior to service and that he began to experience foot problems during service. The Veteran specifically attributes the foot problems to his duties aboard an aircraft carrier where he had to stand and walk for long hours on hard surfaces in his capacity as a cook. He maintains that his current foot problems are related to those in-service experiences. Alternatively, the Veteran's representative asserts that the bilateral pes cavus with hammertoes may be caused or aggravated by his already service-connected painful calluses and metatarsalgia. Thus, the Veteran contends that service connection is warranted for bilateral pes cavus with hammertoes on both a direct and secondary basis. Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment; or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b). Thus, there is a rebuttable presumption of soundness unless a condition is noted at entry. VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003); see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). A review of the Veteran's service treatment records reveals that an entrance examination was conducted in August 1971. He reported a history of foot trouble, which was noted to have been tinea pedis. Other than a history of this skin condition, the Veteran's foot was found to be normal. No defect or diagnosis was listed on the entrance examination report and he was found to be qualified for U.S. Navy service. Because there was no defect, infirmity, or disorder noted at entrance, the presumption of soundness applies. Thus, the Veteran is presumed to have been in sound condition as to any foot disability. See 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). The remaining service treatment records document treatment for complaints of foot problems. A July 1972 clinical record indicates that the Veteran complained of severe pain in the feet due to standing for long hours at a time, and that over-the-counter pain relievers were not sufficient. An examination revealed heavily calloused and bunioned feet. The Veteran was restricted from standing or excessive walking for one day. An October 1972 orthopedic clinic record indicates the Veteran was seen for bilateral calluses on the feet that had been refractory to conservative treatment. The report notes that this problem had begun immediately after entering the Navy. The Veteran had a relative cavus foot, clawing of the lesser toes, and hallux valgus with medial rotation of the great toes. He was seen on several further occasions that month for foot pain. A more in-depth orthopedic evaluation in December 1972 revealed possible myelodysplasia, sacral, with secondary problems of bilateral pes cavus, severe foot calluses, intrinsic imbalance of both feet, onychogryphosis, and plantar warts. The Veteran was air evacuated from the ship on which he was stationed to Clark Naval Hospital in San Francisco for further evaluation. During the Veteran's March 1973 separation examination, he reported having had "foot trouble" during service. There was a notation on the examination report as to a December 1972 instance of treatment for the same condition. A March 1973 Medical Board report states that the Veteran had been air evacuated to a Naval Hospital because of inability to perform his duties on ship due to painful feet. He was subsequently sent to limited duty, but had continued to have significant problems with pain under the metatarsal heads and over the dorsum of the toes, as well as in the arch, despite attempts at corrective shoes and arch supports. X-rays revealed bipartite medial sesamoids of both feet with cavus feet, and a spina bifida of the lumbar spine. An April 1973 Physical Evaluation Board report indicates a diagnosis of pes cavus, bilateral with hammertoes and severe metatarsalgia, existing prior to service, and not aggravated therein. The Veteran underwent a medical separation from service. Post-service VA treatment records and examination reports show diagnoses of and treatment for painful calluses and metatarsalgia. A March 2010 VA examiner attributed the painful calluses and metatarsalgia to the Veteran's military service. As noted in the introduction, the Veteran has been awarded service connection for painful calluses and metatarsalgia. Thus, the question of whether service connection is warranted for this particular foot disability is not before the Board. The post-service treatment records and examination reports also show that the Veteran has bilateral pes cavus with hammertoes. The question remains whether service connection is warranted for the specific foot disability characterized as bilateral pes cavus with hammertoes. Pes cavus or talipes is a congenital deformity of the foot, which is twisted out of shape or position. Dorland's Illustrated Medical Dictionary at 1410, 1852 (30th ed. 2003). Talipes cavus specifically exists where there is an exaggerated height of the longitudinal arch of the foot; it may be congenital or secondary to contractures or disturbed balance of the muscles. Id. at 1852. The Veteran's representative noted an identical definition in a December 2011 brief. As pes cavus may be a congenital deformity, this raises the question of whether service connection is permissible for this claimed disability. The regulations note that congenital or developmental defects are not diseases or injuries within the meaning of applicable legislation pertaining to service connection. See 38 C.F.R. § 3.303(c). VA's General Counsel has held that service connection may be granted for diseases (but not defects) of congenital, developmental, or familial origin; as long as the evidence as a whole establishes that the conditions in question were incurred or aggravated during service within the meaning of VA laws and regulations. It has also expressly stated that the terms "disease" and "defects" must be interpreted as being mutually exclusive. The term "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. On the other hand, the term "defects" would be definable as structural or inherent abnormalities or conditions that are more or less stationary in nature. See VAOPGCPREC 82-90 (July 18, 1990). The regulations indicate that, in the absence of trauma or other definite evidence of aggravation, service connection is not in order for pes cavus which is a typically congenital or juvenile disease. See 38 C.F.R. § 4.57 (2012). Thus, service connection is not typically warranted for pes cavus. Nevertheless, the regulations allow for service connection for pes cavus where there is trauma that caused it or definite evidence of aggravation. Significantly, VA's Schedule for Rating Disabilities includes a diagnostic code for evaluating "acquired" pes cavus or claw foot, which suggests that service connection is permissible for pes cavus that is of the non-congenital or juvenile variety. See 38 C.F.R. § 4.71a (Diagnostic Code 5278) (2012). While the post-service treatment records and examination reports consistently reflect a diagnosis of bilateral pes cavus with hammertoes, the evidence does not address the specific medical questions raised by the case other than a March 2010 VA examination report and a March 2012 addendum opinion by the same examiner. These reports represent the most probative evidence concerning the nature and origin of the Veteran's bilateral pes cavus with hammertoes. In March 2010, the VA examiner reviewed the claims file and noted an accurate medical history, including the Veteran's documented in-service and post-service treatment for foot problems. After conducting a physical examination and taking x-rays, the examiner provided two diagnoses pertaining to the feet-(1) pes cavus with hammertoes and (2) painful calluses and metatarsalgia. As to the painful calluses and metatarsalgia, the examiner gave the opinion that the foot disability as likely as not had its onset while in the service because there is no evidence that the problems existed prior to entering service. In contrast, the examiner stated that he agreed with the service Medical Board that the Veteran's pes cavus with hammertoes is a developmental condition. The examiner also stated that the Veteran's service did not cause or permanently aggravate the pes cavus. As opposed to the painful calluses and metatarsalgia, the examiner noted that the Veteran did not receive treatment for pes cavus with hammertoes during service or since leaving service. In summary, the examiner stated that he agreed with the Medical Board that the pes cavus with hammertoes is a developmental condition. Pursuant to the Board's February 2012 remand, the claims file was forwarded to the March 2010 VA examiner for addendum opinion to further address the nature and origin of the Veteran's bilateral pes cavus with hammertoes. The examiner again reviewed the claims file and provided an opinion that the Veteran's bilateral pes cavus with hammertoes is less likely as not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the Veteran's bilateral pes cavus with hammertoes should be classified as a development defect. The examiner noted that pes cavus can develop secondary to a neurological condition, such as hereditary motor and type 1 sensory neuropathy. According to the examiner, in those cases, pes cavus would be considered a disease since it developed as a result of a medical illness. However, in the Veteran's case, he does not have a neurological condition; therefore, the examiner stated that this case should be considered a developmental defect. The examiner also stated that there is no evidence that the pes cavus was aggravated by the military. The examiner noted that the current examination showed mild pes cavus and that the majority of the medical literature does not support a progression of pes cavus with activity, such as prolonged marching or standing. The examiner noted that this was different than the painful calluses, which likely resulted from the increased activity in the military. As to the relationship between the Veteran's two foot disabilities, the examiner gave the opinion that it is less likely than not that the painful calluses and metatarsalgia caused or permanently aggravated the pes cavus. According to the examiner, it is more likely than not that the pes cavus came first and caused or directly contributed to the painful calluses and metatarsalgia. The examiner also explained that the pes cavus is a developmental defect which has remained relatively stable over time and there is no evidence of progression of the pes cavus. The examiner stated that with aging there can be a gradual collapse of the arch, but this has not happened to any great extent in the Veteran because he still has pes cavus. In consideration of the evidence of record, and primarily based on the VA examiner's March 2010 and March 2012 reports, the Board finds that the Veteran's bilateral pes cavus with hammertoes is a developmental defect. The examiner's opinion is persuasive as it finds support in the record and he explained that the Veteran's pes cavus is the type that is developmental and not the type that is a disease with a different cause such as a neurological condition. The pes cavus has also been relatively stable over the years, which is consistent with a defect rather than a disease. See VAOPGCPREC 82-90. Because the Veteran's bilateral pes cavus with hammertoes is a developmental defect, it is generally not the type of condition for which service connection is warranted. See 38 C.F.R. § 3.303(c). Additionally, the Board finds that the Veteran's bilateral pes cavus with hammertoes was not aggravated by his active military service or subject to a superimposed disease or injury during service. The VA examiner explained that the Veteran did not actually receive treatment for the pes cavus, but rather for the already service-connected painful calluses. The examiner also explained that there is no evidence of a progression in the pes cavus. Without sufficient evidence that the Veteran's bilateral pes cavus with hammertoes was aggravated during service, service connection is also not warranted on this basis. Notably, the regulations indicate that service connection is not typically warranted for pes cavus absent trauma or definite evidence of aggravation, which is not shown in this case. See 38 C.F.R. § 4.57. Moreover, the examiner noted that the bilateral pes cavus with hammertoes preexisted the painful calluses and metatarsalgia, and he indicated that the pes cavus caused or contributed to the painful calluses rather than the other way around. Thus, it is not suggested that the Veteran's bilateral pes cavus with hammertoes was subject to a superimposed disease or injury during service. Furthermore, in light of the evidence, the Board finds that the Veteran's bilateral pes cavus with hammertoes is not caused, or aggravated by, his service-connected painful calluses and metatarsalgia. As detailed previously, the examiner indicated that the pes cavus caused or contributed to the painful calluses. Also, according to the examiner, there is no permanent aggravation by the painful calluses because the pes cavus is a developmental defect that has remained relatively stable over time and there is no evidence of progression. Given this finding, the Board concludes that service connection is not warranted for bilateral pes cavus with hammertoes on a secondary basis. See 38 C.F.R. § 3.310 (2006). The Board has considered contentions of the Veteran and his representative on the matter. However, there is no indication that they possess the requisite expertise to provide a probative opinion on the various complex medical questions raised in this case, such as whether the Veteran's pes cavus is a developmental defect or disease. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The VA examiner considered the theories and they were not endorsed. The March 2010 and March 2012 reports constitute the most probative and persuasive evidence for deciding the claim and the Veteran has not identified any medical opinion evidence that is in contrast to the VA examiner's opinions. For the foregoing reasons, the Board finds that the claim of service connection for bilateral pes cavus with hammertoes must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim of service connection, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). ORDER Service connection for bilateral pes cavus with hammertoes is denied. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs