Citation Nr: 1301481 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 08-17 855 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUE Entitlement to service connection for a bilateral foot disability. REPRESENTATION Veteran represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD N. L. Northcutt, Counsel INTRODUCTION The Veteran had active service from September 1960 to December 1964. This matter comes before the Board of Veterans' Appeals (Board) from an October 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2010 and March 2012, the Board remanded this claim for further evidentiary development, which has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. The evidence demonstrates that the Veteran's bilateral pes planus clearly and unmistakably existed prior to the Veteran's period of military service. 2. The evidence demonstrates that his bilateral pes planus clearly and unmistakably was not permanently aggravated beyond its natural progression during service. 3. A probative VA medical opinion fails to relate the Veteran's current bilateral foot osteoarthritis to service. CONCLUSION OF LAW The criteria for service connection for a bilateral foot disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. March 2005 and August 2006 letters satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b) (1). The August 2006 letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The claim was subsequently readjudicated, most recently in an October 2012 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 S.Ct. 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.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran's service treatment records and VA medical treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). VA examinations were conducted and related opinions were obtained in May 2011 and May 2012. The May 2012 VA examination and medical opinion were obtained pursuant to the Board's remand directives after the Board determined that the May 2011 medical opinion was inadequate. The Veteran has not argued, and the record does not reflect, that the May 2012 opinion is inadequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Service Connection The Veteran contends that his current bilateral foot disabilities are attributable to service. 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). A veteran is presumed in sound condition except for defects noted when examined and accepted for service. 38 U.S.C.A. § 1132. Clear and unmistakable evidence that the disability existed prior to service and was not aggravated by service will rebut the presumption of soundness. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.304(b); VAOPGCPREC 3-2003. It is emphasized that the burden of proof is upon VA to rebut the presumption by producing that clear and unmistakable evidence. See Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). Clear and unmistakable evidence is a more formidable evidentiary burden than the "preponderance of the evidence" standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than clear and unmistakable evidence). Once a determination is made that a disability clearly and unmistakably exited prior to service, VA has a duty to demonstrate, by clear and unmistakable evidence, that the pre-existing disability did not increase in severity during service, or that any increase was due to the natural progression of the disease or injury. 38 U.S.C.A. § 1153; Wagner v. Principi, 370 F.3d 1089, 1096 (2004); see also Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). The Veteran's feet were clinically assessed as normal during the August 1960 enlistment examination performed prior to the Veteran's entrance to service on September 15, 1960. On September 26, 1960, the Veteran reported for recruit training and was diagnosed with pes planus, second degree. In November 1964, the Veteran fractured the fifth phalanx of his left foot. In December 1964, the Veteran underwent a separation medical examination, and no foot abnormalities were assessed. In a letter received by VA in July 2005, the Veteran's primary care physician states that the Veteran initially sought treatment for long-standing foot pain in May 1999. In May 2011, the Veteran underwent a VA foot examination, at which time the Veteran reported long-standing foot pain, but was unable to provide a date of onset. The examiner diagnosed the Veteran with bilateral pes planus and osteoarthritis of both feet. The Board determined that the medical opinion regarding the etiology of these foot disorders and their relationship to service was insufficient. See Remand Portion of March 2012 Board Decision. Accordingly, a new VA examination was obtained. The Veteran underwent this VA examination in May 2012. The examiner diagnosed the Veteran with bilateral pes planus and osteoarthritis of both feet. With regard to the Veteran's bilateral pes planus, the examiner opined that this foot disorder clearly and unmistakably preexisted service, as it was diagnosed shortly after his entrance to service when reporting for recruit training. The examiner opined that the Veteran's preexisting asymptomatic pes planus was not permanently aggravated by service, as there is no evidence of the Veteran's experiencing symptomatic pes planus during service. The examiner stated that the Veteran's in-service foot injury involved a different portion of his foot and was unrelated to pes planus. The examiner also found that the Veteran's first treatment for symptomatic pes planus in 1999, over 30 years after service, indicated that the Veteran's current symptomatic pes planus is related to the natural progression of his condition and not a permanent aggravation of the condition during service. The examiner concluded that the Veteran's currently-diagnosed pes planus, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression during service. With regard to the Veteran's osteoarthritis of both feet, the examiner opined that this foot disorder was less likely than related to service. The examiner stated that there was no evidence that the Veteran developed foot osteoarthritis during service. The Veteran's current form of arthritis is unrelated to his in-service foot fracture, as recent diagnostic studies failed to reveal any residuals from his in-service foot fracture, and his current osteoarthritis does not involve the portion of his foot that he fractured during service. Rather, the examiner opined that the Veteran's current osteoarthritis is most likely related to natural wear and tear commensurate with his age and his first treatment for bilateral foot pain many years after service. The May 2011 VA opinion has been deemed insufficient; thus, it is accorded no probative value. The opinions rendered by the May 2012 VA examiner are sufficient. The opinions are unequivocally stated and based on an accurate review of the record. They are consistent with the Veteran's reports of longstanding foot pain, with no specified date of onset. The opinions are also supported by detailed and reasoned rationales. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (holding that to have probative value, the opinion provider must be fully informed of the pertinent factual premises, provide a fully articulated opinion, and provide a supportive reasoned analysis). These opinions are accorded great probative value. The Veteran has made no reports regarding his in-service foot symptoms or specified the onset of his current foot symptoms, other than to broadly characterize them as long-standing. His statements therefore cannot serve to establish an in-service incurrence of a foot disability or continuity of symptomatology since service; thus, they are accorded no probative value. Regarding the Veteran's pes planus, the probative May 2012 VA opinion finds that the Veteran's pes planus clearly and unmistakably existed prior to service, which finding is consistent with the Veteran's diagnosis of pes planus approximately 10 days after his entry to service, prior to commencing his recruit training. VA has established that bilateral pes planus, while not diagnosed during the Veteran's pre-service enlistment examination, nevertheless clearly and unmistakably existed prior to service. There is no evidence to the contrary. The probative May 2012 VA opinion states that the bilateral pes planus was clearly and unmistakably not aggravated beyond its natural progression during service, which is consistent with the lack of any medical or lay evidence reflecting an increase in the Veteran's pes planus symptoms during service. There is no evidence to the contrary. VA has established that the Veteran's bilateral pes planus clearly and unmistakably preexisted service and clearly and unmistakably was not aggravated beyond its natural progression during service. Accordingly, service connection for bilateral pes planus is not warranted. The probative May 2012 VA opinion states that the Veteran's bilateral foot osteoarthritis is less likely than not related to service, as it is unrelated to his in-service foot fracture and is consistent with wear and tear commensurate with the Veteran's age. There is no probative lay or medical evidence to the contrary. The preponderance of the evidence is against establishing service connection for bilateral foot osteoarthritis; there is no doubt to be resolved, and service connection for bilateral foot osteoarthritis is not warranted. ORDER Service connection for a bilateral foot disability is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs