Citation Nr: 1302143 Decision Date: 01/18/13 Archive Date: 01/23/13 DOCKET NO. 10-05 506 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a bilateral foot disorder, including equinus, hammertoes, degenerative joint disease and/or flat feet. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD T. Y. Hawkins, Counsel INTRODUCTION The Veteran served on active duty from March 1953 to March 1955. This matter comes before the Board of Veterans' Appeals ("Board") on appeal from an April 2009 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Cleveland, Ohio, which denied the Veteran's claim of entitlement to service connection. In November 2011, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge sitting at the St. Petersburg, Florida, RO. A transcript of the hearing has been associated with the Veteran's claims folder. The Board has previously considered this claim. In April 2012, the Board remanded the claim for additional development, specifically, to allow the Veteran to undergo a new VA examination. This took place in May 2012, and in a November 2012 Supplemental Statement of the Case ("SSOC"), the VA Appeals Management Center continued the denial of the claim. The claims folder has been returned to the Board for further appellate proceedings. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The probative and competent evidence of record establishes that the Veteran's current bilateral foot disorders are not causally related to a disease, injury or event in service, are not the result of aggravation of a congenital defect by a superimposed disease or injury during service, and did not manifest within one year of separation from service. CONCLUSION OF LAW The Veteran's current bilateral foot disorders, including equinus, hammertoes, degenerative joint disease and/or flat feet, were neither incurred in, nor aggravated by active service and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 ("VCAA") With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). A.) Duty to Notify Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) ("Pelegrini II"), the United States Court of Appeals for Veterans Claims ("Court") held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. Element (4), the requirement of requesting that the claimant provide any evidence in his or her possession that pertains to the claim, was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini, effective May 30, 2008). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability and effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). In this case, VA essentially satisfied the notification requirements of the VCAA by means of a letter dated March 2009, which informed the Veteran of the types of evidence needed in order to substantiate his service connection claim, the division of responsibility between himself and VA for obtaining the required evidence, and requested that the Veteran provide any information or evidence in his possession that pertained to such claim. 38 U.S.C.A. §5103(a); 38 C.F.R. § 3.159(b). The letter also satisfied Dingess/Hartman by informing the Veteran of how VA determines the disability rating and effective date elements of a claim. B.) Duty to Assist The Board concludes that VA's duty to assist has been satisfied. The claims file contains the Veteran's available post-service VA and private treatment records and a VA examination report dated May 2012. Additionally, the claims file contains the Veteran's personal statements in support of his claim. The Veteran has not referenced any outstanding, available records that he wanted VA to obtain or that he felt were relevant to the claim that have not already been obtained and associated with the record. Although the Veteran identified treatment providers for his foot disorders following service separation at his Board hearing, he failed to respond to an April 2012 letter asking that he provide greater detail so that any outstanding records could be obtained. The duty to assist is not a one way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). If the Veteran wishes to receive help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining relevant evidence. Review of the VA examination report demonstrates that the examiner reviewed the pertinent evidence of record, elicited from the Veteran his history of foot disorder symptomatology and treatment, performed a comprehensive examination, and provided the examination results, along with clear and concise reasons and bases for his conclusion that the Veteran's foot disorders are not the result of active duty service. For these reasons, the Board concludes that the examination report is adequate upon which to base a decision in this matter. The Board also concludes that reasonable efforts to develop evidence for the record have been made. In this regard, the Board notes that the Veteran's active duty service personnel and treatment reports are not of record. Under such circumstances, the Court has held that VA has a heightened obligation to explain its findings and conclusions and to carefully consider the benefit-of-the-doubt rule, which states that when there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, the Court has also held that there is no presumption, either in favor of the claimant or against VA, arising from missing records. Cromer v. Nicholson, 19 Vet. App. 215 (2005) (the Court declined to apply an "adverse presumption" where records have been lost or destroyed while in Government control, which would have required VA to disprove a claimant's allegation of injury or disease in service in these particular cases). There is also a heightened duty to search for medical information from alternative sources in order to reconstruct the service treatment records. Jolley v. Derwinski, 1 Vet. App. 37, 39-40 (1990); Cuevas, supra. In addition, the Board is under a duty to advise the claimant to submit other forms of evidence, such as lay testimony. Dixon v. Derwinski, 3 Vet. App. 261, 263 (1992); Garlejo v. Derwinski, 2 Vet. App. 619, 620 (1992). The Court has held in all cases, however, that a non-combat veteran's lay statements must be weighed against other evidence, including the absence of military records supporting his or her assertions. Bardwell v. Shinseki, 24 Vet. App. 36 (2010). Here, the Veteran was advised of the absence of his service treatment records as early as July 2004. In that letter, he was informed of alternate evidence, other than service treatment records, that he could submit to substantiate the claim. See Washington v. Nicholson, 19 Vet. App. 362, 370 (2005). In May 2004, the RO made a request to the National Personnel Records Center ("NPRC") in St. Louis, Missouri, for the Veteran's service records. However, in June 2004, the NPRC responded that that it was unable to locate any records and that such records had most likely been destroyed in a fire at the St. Louis facility in 1973. In August 2004, the Veteran was contacted by phone and was informed of the efforts made to obtain his service records. A concurrent memorandum associated with the claims folder documented the aforementioned search and concluded that all obtainable evidence identified by the Veteran relative to his claim had been obtained and associated with the claims file, all procedures to obtain records had been correctly followed and exhausted, and that any further attempts would be futile. Accordingly, the Board concludes that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of his claim. See 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, supra. In short, the Board has carefully considered the provisions of the VCAA in light of the record on appeal, and for the reasons expressed above, finds that the development of the claim has been consistent with the provisions of the VCAA. The appellant has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to the VCAA notice. The purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his appealed claim. Accordingly, the Board will proceed to a decision on the merits. II. Analysis The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). Under 38 U.S.C.A. § 1154(a), VA is also required to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. In Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit ("Federal Circuit") held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3), lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." (footnote omitted). However, the Court has held that "[t]he type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed." Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In order to establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) the in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"- the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Alternatively, under 38 C.F.R. § 3.303(b), service connection may be awarded for a "chronic" condition when (1) a chronic disease manifests itself and is identified as such in service, or within the presumptive period under 38 C.F.R. § 3.307, and the veteran presently has the same condition; or (2) a disease manifests itself during service, or during the presumptive period, but is not identified until later, and there is a showing of continuity of related symptomatology after discharge, and medical evidence relates that symptomatology to the Veteran's present condition. Savage v. Gober, 10 Vet. App. 488, 495-98 (1997); 38 C.F.R. § 3.303(d). Service connection may be established for a disability resulting from personal injury suffered, or disease contracted, in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2012). Additionally, service connection for certain chronic diseases, such as arthritis, may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one (1) year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2012). Service connection may not be granted for congenital or developmental defects. 38 C.F.R. §§ 3.303(c) and 4.9. See also Winn v. Brown, 8 Vet. App. 510, 516 (1996) (stating that congenital or developmental defects are not diseases or injuries within the meaning of VA law and regulation). However, VA's General Counsel has held that a congenital defect can be subject to a superimposed disease or injury, and if that superimposed disease or injury occurs during military service, service-connection may be warranted for the resultant disability. VAOPGCPREC 82-90 (July 18, 1990). A congenital disease is capable of improving or deteriorating whereas a congenital defect is "more or less statutory in nature." VAOPGCPREC 82-90 (July 18, 1990). Direct service connection may be established for a disease of congenital origin. For instance, a congenital disease can be incurred or aggravated in service in that it first manifests during service or preexisted service but progresses at an abnormally high rate during service. VAOPGCPREC 67-90 (July 18, 1990). The Veteran contends that he entered service without any foot problems. He asserts (to include at his Board hearing) his current bilateral foot disorders are the result of jumping from trucks and half-tracks while on active duty service during the Korean War. However, as noted above, his service treatment records were destroyed by fire and are unavailable. There are also no post-service treatment records in the years immediately following the Veteran's active duty service. Nonetheless, the Board has considered the Veteran's assertion that he has suffered from foot problems ever since service. As noted above, the Court has held that in all cases, a non-combat veteran's statements must be weighed against other evidence, including the absence of military records supporting his or her assertions. See Bardwell v. Shinseki, supra. These provisions, however, do not relieve the requirement that there be some evidence of a nexus to service. For service connection to be established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. See Savage v. Gober, supra. Accordingly, the pertinent inquiry here is whether the Veteran has experienced a continuity of symptomatology since service. See 38 C.F.R. § 3.303(b) and (d). Despite the Veteran's assertions, VA Medical Center ("VAMC") treatment records show that he did not begin receiving treatment for his foot disorders until May 2004, when he was seen by a VA podiatrist with complaints of bilateral foot pain (earlier VA treatment reports show no complaints of foot problems). The examination revealed a finding of foot imbalance with excessive weight-bearing on the metatarsal-phalangeal area, and the Veteran was prescribed orthotics with additional padding in the metatarsal area. There is no evidence of additional treatment for a foot disorder until nearly five years later, in February 2009, at which time, an x-ray performed at the VAMC for complaints of foot pain revealed marked osteoarthritis, first metatarsophalangeal joint, and a calcaneal spur of the right foot. In March 2009, the Veteran was again seen at the VAMC for bilateral foot pain in the metatarsophalangeal joint. It was at this time that he first reported that the pain had been present since military service. The diagnoses included bilateral functional equinus, hammer toes, bilateral pes planus cavus and tenderness noted at the metatarsal heads bilaterally secondary to metatarsophalangeal contracture/compensation. Radiology reports also revealed generalized osteopenia bilaterally, first metacarpophalangeal joint sclerosis. In May 2012, the Veteran returned to the VAMC with complaints of leg left and foot pain and swelling in the ankles. The prior diagnosis of degenerative joint disease of the bilateral feet, first metacarpophalangeal joint, was continued. There are no other treatment reports of record for the Veteran's foot disorders. In May 2012, the Veteran was afforded a VA compensation and pension foot examination, at which time, he reported that he had injured both feet during service while jumping off tanks and half-tracks. He added that x-rays of his feet during service had been negative for fractures and that he was given a prescription for pain. Although he stated that he received private medical treatment for the feet following service, all efforts on the part of VA to obtain such treatment records have been unsuccessful. Upon examination, the Veteran was diagnosed with hammer toes of the second through fifth toes, bilaterally, and pes cavus with dorsiflexion and varus deformity, resulting in some limitation of dorsiflexion at the left ankle. X-rays revealed findings of diffuse, demineralized bones and well-corticated ossicles along both ankle joints, which was noted as being most consistent with an old trauma, as well as significant first metatarsophalangeal osteoarthritis. There were also mild degenerative changes seen bilaterally involving both ankles, as well as a right plantar calcaneal spur. A February 2012 MRI of the right ankle revealed attenuation anterior tibiofibular and calcaneofibular ligaments likely related to a remote injury, including a remote ununited distal fibula fracture. Based on his review of the complete medical evidence of record, an interview with the Veteran and a review of diagnostic test results, the VA examiner concluded that the Veteran's bilateral foot disorders were less likely than not incurred in, or caused by the claimed in-service injury. In this regard, he noted that there were no treatment records showing a foot injury during service, and available records showed that the Veteran was not treated for a foot disorder until approximately 2003. He further found that any condition the Veteran may have had during service in the mid-1950's is very remote and cannot be established as connected to his current condition. Moreover, he added that there was no reason or evidence to show that the Veteran's bilateral foot condition is the result of a congenital defect of either foot, to include equinus. Finally, he noted that, in the absence of congenital, neurological or traumatic causes of pes cavus, the remaining conditions are classified as idiopathic, as their etiology is not known. Based on a review of the pertinent evidence of record, including the Veteran's personal statements, the Board concludes that the competent and probative evidence is against the Veteran's claim of entitlement to service connection for a bilateral foot disorder, including equinus, hammertoes, degenerative joint disease and/or flat feet. In this regard, the Board again notes that a competent VA examiner, after having examined the Veteran and reviewed the pertinent evidence of record, concluded that it was less likely than not that his current foot disorders are the result of active duty service. Notably, the examiner considered the Veteran's self-reported history of having injured his feet in service as well as the treatment he received therein. Moreover, as discussed above, there is no probative evidence showing that the Veteran was treated for a foot disorder until nearly 50 years after active service. In this regard, the Court has held that a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service, which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Here, the amount of time that passed following service without any documented complaint or diagnosis of a foot disorder is evidence that weighs against the Veteran's claim on a direct basis. Moreover, as there is no probative evidence showing that the Veteran developed arthritis of the feet within one year of separation from service, service connection on a presumptive basis is also unwarranted. In addition to the medical evidence, the Board has also considered the Veteran's personal statements in support of his claim. The Court has repeatedly held that a veteran is competent to describe symptoms of which he or she has first-hand knowledge. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). As foot pain is something the Veteran, as a layperson, is competent to report, his assertions concerning chronic pain since service are entitled to some probative weight. However, although the Veteran is competent to report his symptoms, he is not necessarily competent to attribute those symptoms to a specific underlying disease or injury during service. See McManaway v. West, 13 Vet. App. 60, 66 (1999) (holding that, where there is assertion of continuity of symptomatology since service, medical evidence is required to establish "a nexus between the continuous symptomatology and the current claimed condition"), vacated on other grounds sub nom. McManaway v. Principi, 14 Vet. App. 275 (2001); Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488 (1997). Moreover, in Clyburn v. West, 12 Vet. App. 296, 301 (1999), the Court held that continued complaints of pain after service do not suffice to establish a medical nexus where the issue at hand is of etiology, and requires a medical opinion. In this case, the fact remains that the only competent medical opinion of record fails to relate any current foot disorders to service. The Board finds the opinion of the VA examiner to be the most probative evidence of record as to the relationship between the Veteran's current disabilities and service, and ultimately outweigh the Veteran's reports of a continuity of symptomatology since service. Accordingly, the Board concludes that the preponderance of the evidence does not support the Veteran's claim of entitlement to service connection for a bilateral foot disorder, including equinus, hammertoes, degenerative joint disease and/or flat feet. In arriving at the decision to deny the claims, the Board has considered the applicability of the "benefit-of-the-doubt" rule enunciated in 38 U.S.C.A. § 5107(b). However, as there is not an approximate balance of evidence, that rule is not applicable in this case. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990) ; Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). ORDER Service connection for a bilateral foot disorder, including equinus, hammertoes, degenerative joint disease and/or flat feet, is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs