Citation Nr: 1302184	
Decision Date: 01/18/13    Archive Date: 01/23/13

DOCKET NO.  08-06 507	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


THE ISSUE

Entitlement to service connection for bilateral hammer toes.  


ATTORNEY FOR THE BOARD

M. Mac, Counsel



INTRODUCTION

The Veteran served on active duty from April 1969 to November 1970. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied the benefit sought on appeal.  The Veteran appealed that decision to the Board, and the case was referred to the Board for appellate review. 

A review of the Virtual VA paperless claims processing system shows additional documents which are either duplicative of the evidence of record or are not pertinent to the present appeal.  

In June 2009, September 2010, and January 2012 the Board remanded the issue for further development.  As the requested development has been completed, further action to ensure compliance with the remand directive is not required.  Stegall v. West, 11 Vet. App. 268 (1998).


FINDING OF FACT

Bilateral hammer toes are attributable to service


CONCLUSION OF LAW

Bilateral hammer toes were incurred in service. 38 U.S.C.A. §§ 1110 , 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012).



REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

As provided for by the VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  In this case, the Board is granting in full the benefit sought on appeal.  Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed.

Legal Criteria

Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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).

Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service.  This may be accomplished by affirmatively showing inception or aggravation during service.  38 C.F.R. § 3.303(a).  

For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  

Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  38 C.F.R. § 3.303(b). 

Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service.  38 C.F.R. § 3.303(d). 

Evidence

The Veteran contends that during service he spent 14 months in the jungles of Vietnam where he sometimes kept his shoes on for 2 weeks without taking them off.  He stated that he was treated for feet problems during service even though this is not documented in his service treatment records.   His DD 214 Form shows that he was a combat engineer and served in Vietnam.

Service treatment records show that on entrance examination in October 1968, the examiner stated that the Veteran had overlapping of the second toes bilaterally, which was not considered a disabling condition.  There were no other recorded complaints of foot problems in service.  On separation examination in November 1970, the examiner evaluated the Veteran's feet as normal.  

After service, VA progress in December 2005 show the Veteran had bunions and hammer toes.  In March 2007, the Veteran complained of hammer toes for 15 years.  In April 2007 a VA podiatry consult shows the Veteran had hallux valgus and rigid hammer toes, from toe 2 to 5, bilaterally.  In July 2006 the records show that the Veteran complained of pain in his feet for 30 years.  

On VA examination in June 2010, the Veteran reported that he was a combat engineer during service in Vietnam, his feet were wet all the time and sometimes he could not take his boots off for two weeks.  The diagnoses were right and left hallux valgus deformity, with debility; right and left hammertoe deformity, with debility; right and left calcaneal heel spurs.  The examiner noted that the Veteran's preinduction examination showed that he had overlapping of the second toes of both feet, which is known to be a benign congenital abnormality.  The examiner further stated that as there were no other abnormalities of the feet documented during service, the Veteran did not have hallux valgus formation or hammertoe deformities at that time.  The examiner was of the opinion "that it is at least as likely as not (50 percent probability) that his difficulties with his feet could have been aggravated by his active service, i.e. wearing of footwear for prolonged periods of time."  

In October 2010, the Veteran was afforded another VA examination conducted by a different examiner.  On this examination, the Veteran reported that the boots he wore in service bothered his feet and he has had pain, weakness, and stiffness in his feet ever since that time.  The examiner referred to x-rays in April 2007 which show hallux valgus, hammer toes, and small calcaneal spurs.  The diagnoses were bilateral hallux valgus deformity, bilateral hammer toe deformity, and bilateral calcaneal spurs.  The examiner was of the opinion that it is at least as likely as not the toe crossing deformity was caused and aggravated by the Veteran's military service.  

In March 2012, the Veteran was afforded a VA examination with a third examiner.  This examiner was of the opinion that it is less likely than not that a foot disability other than the toe crossing deformity was caused by any incident or event that occurred during service.  

Analysis

A Veteran will be considered to have been in sound condition when examined, accepted, and enrolled for active service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service.  Only such conditions as are recorded in examination reports are to be considered as noted.  38 U.S.C.A. § 1111 ; 38 C.F.R. § 3.304(b).  As bilateral hammer toes were not noted on the entrance examination into service, the Veteran is entitled to the presumption of soundness. 

As a general matter, lay witnesses are competent to testify as to their observations as well as opine on questions of diagnosis and etiology in some circumstances.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (lay witnesses are competent to testify as to their observations, but this testimony must be weighed against the other evidence of record).  See also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau; lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology).  Here, although the Veteran's service treatment records do not document bilateral hammer toes, if the Board deems lay evidence credible, the lack of contemporaneous medical evidence should not be an absolute bar to his ability to prove his claim.  Buchanan, 451 F.3d at 1337  . 

In this case, the Board finds the Veteran's statements as to treatment for feet problems in service to be credible as they are consistent with the circumstances of his service in Vietnam as a combat engineer.  See 38 U.S.C.A. § 1154(a).  Therefore, the only remaining issue is whether the currently diagnosed bilateral hammer toes are related to service.  

The March 2012 VA examiner did not provide a rationale for his opinion that it is less likely than not that a foot disability, other than the toe crossing deformity, was caused by any incident or event that occurred during service.  It is also unclear whether he considered the Veteran's report that he was treated for foot problems during service but the treatment was not documented in the service records.  Hence, the Board finds that the March 2012 VA examiner's opinion has little probative value. 

On the other hand, the June 2010 VA examiner's conclusion that the Veteran's difficulties with his feet could be related to his active service was based on the rationale that the Veteran wore footwear for a prolonged period of time.  
Hence, the Board finds that the June 2010 VA examiner's opinion is highly probative. 

The Board also points out that VA is not free to ignore a medical opinion (see Owens v. Brown, 7 Vet. App. 429, 433 (1995)), or to reject a medical opinion based on its own medical judgment (see Obert v. Brown, Vet. App. 30 (1993) and Colvin v. Derwinski, 1 Vet. App. 171 (1991)).  In this case, the June 2010 VA examiner's opinion is not contradicted by the other competent and probative evidence of record and VA adjudicators are not permitted to substitute their own judgment on a medical matter.  For these reasons, the Board finds that the weight of the evidence supports the conclusion that the Veteran's bilateral hammer toes are related to service and that service connection must be granted. 


ORDER

Entitlement to service connection for bilateral hammer toes is granted. 




____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs