Citation Nr: 1303440 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 10-02 208 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for a bilateral foot disability, claimed as pes cavus and/or Charcot Marie Tooth syndrome. REPRESENTATION Appellant represented by: Jan Dils, Attorney at Law WITNESSES AT HEARING ON APPEAL The Veteran and his sister-in-law ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran served on active duty from March 1970 to January 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Veteran testified at an April 2012 hearing by the undersigned held sitting at the RO. A transcript of that hearing is associated with the claims file. The Veteran's appeal was remanded by the Board in June 2012 so that the October 2010 VA examiner could state whether the evidence clearly and unmistakably established that the Veteran's diagnosed bilateral foot disability preexisted service, and if so, whether it clearly and unmistakably was not aggravated by service. Such opinions were obtained in August 2012 and October 2012. Accordingly, the Board finds that there has been substantial compliance with the directives of the June 2012 Remand, such that an additional remand to comply with such directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). FINDINGS OF FACT 1. The Veteran was found to be sound upon entry into service, with no pre-service diagnosis of bilateral pes cavus. 2. During service, the Veteran was diagnosed as having bilateral pes cavus. 3. The Veteran's bilateral pes cavus had its onset during service and is etiologically related to service. CONCLUSION OF LAW The criteria for service connection for a bilateral foot disability have been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 4.125 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this decision, the Board grants service connection for a bilateral foot disability, which constitutes a complete grant of the Veteran's claim. Therefore, in view of the fact that the full benefit sought by the Veteran is being granted by this decision, there is no need to undertake any review of compliance with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations. See generally 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board is to consider all lay and medical evidence as it pertains to the issues. 38 U.S.C.A. § 7104(a) ("decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record"); 38 U.S.C.A. § 5107(b) (VA "shall consider all information and lay and medical evidence of record in a case"); 38 C.F.R. § 3.303(a) (service connection claims "must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence"). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Congenital or developmental defects are not "diseases or injuries" within the meaning of applicable statutes and regulations. 38 C.F.R. § 3.303(c). However, where during service a congenital or developmental defect is subject to a superimposed injury or disease, service connection may be warranted. VAOPGCPREC 82-90 (July 18, 1990), published at 56 Fed. Reg. 45,711 (1990) (a reissue of General Counsel opinion 01- 85 (March 5, 1985). The VA General Counsel's opinion indicated that there is a distinction under the law between a congenital or developmental "disease" and a congenital "defect" for service connection purposes in that congenital diseases may be recognized as service connected if the evidence as a whole shows aggravation in service within the meaning of VA regulations. A congenital or developmental "defect," on the other hand, because of 38 C.F.R. § 3.303(c), may not be service-connected although service connection may be granted for additional disability due to disease or injury superimposed upon such defect during service. VAOPGCPREC 82-90. VA law provides that a Veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C.A. § 1132. The presumption of soundness attaches only where there has been an induction examination during which the disability about which the Veteran later complains was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulations provide expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. 38 C.F.R. § 3.304(b) requires that VA, rather than the claimant, bear the burden of proving that the disability at issue preexisted entry into service, and that the disability was not aggravated by service, before the presumption of soundness on entrance into active service may be rebutted. See also Cotant v. Principi, 17 Vet. App. 116 (2003). The presumption of soundness upon entry into service may not be rebutted without contemporaneous clinical evidence or recorded history in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Any such determination must consider "how strong the other rebutting evidence might be." Harris v. West, 203 F.3d 1347, 1351 (Fed. Cir. 2000). Here, the March 1970 entrance examination did not note pes cavus or any other disability of the feet. To the contrary, the examiner indicated that the Veteran's feet and lower extremities were within normal limits. As such, the presumption of soundness applies. The Board finds that the record does not contain clear and convincing evidence that the Veteran was diagnosed with a bilateral foot disability prior to his entrance into service. On his March 1970 enlistment report of medical history, the Veteran indicated that he never had foot trouble. A review of the service treatment records reveals that it was not until July 1970, several months into the Veteran's period of active service, that any foot symptomatology was noted. Specifically, a July 1970 individual sick slip indicated that the Veteran was experiencing trouble with his feet which was noted to be in the line of duty. He was diagnosed as having bilateral pes cavus (very high arched feet) and placed on a permanent physical profile which prohibited any stooping, running, jumping, prolonged standing, and marching. The Veteran continued to complain of foot problems, and was scheduled for an appointment with the podiatry clinic in February 1971, at which time he was diagnosed as having severe, supple pes cavus. A February 1971 radiology report confirmed the diagnosis of bilateral pes cavus. However, the January 1972 separation examination again indicated that the Veteran's feet and lower extremities were within normal limits. It was not until after the Veteran's separation from service that he noted his foot symptomatology preexisted service. Specifically, an October 1977 VA treatment note indicated that the Veteran was being treated for high arches which began as a child, at which time he was diagnosed as having possible Charcot-Marie-Tooth disease, a genetic, inherited disorder of the peripheral nervous system. However, a December 1977 VA hospital summary noted that the Veteran's symptoms were markedly atypical for Charcot-Marie-Tooth disease due to the lack of sensory findings, hyperactive reflexes, and involvement of the thigh musculature. The Veteran was diagnosed as having a familial progressive spastic paraparesis, although this diagnosis was also uncertain. A February 1978 VA treatment note indicated that his diagnosis was unclear at that time. Social Security Administration (SSA) records indicated that the Veteran has been disabled since March 1986, due to a primary diagnosis of major depression and a secondary diagnosis of familial progressive spastic paraparesis, among other disorders. In correspondence dated in March 2008, the Veteran indicated that the first symptoms of his current foot disorder manifested while in the service. In correspondence dated in May 2009, a private physician indicated that it was clear that the Veteran was treated on multiple occasions for bilateral pes cavus while in service. Although the examiner conceded that Charcot-Marie-Tooth disease is believed to be a genetic disorder and may have preexisted the Veteran's period of military service, he opined that it was clear that the Veteran's active military service exacerbated the disease, which began to manifest itself in a severe fashion while on active duty status. The examiner concluded that it was more likely than not that the Veteran's foot disorder was caused by and/or brought about while he served on active duty. The Veteran was afforded a VA foot examination in October 2010, at which time he was diagnosed as having bilateral pes cavus with familial spastic paraparesis. However, the examiner opined that this disorder was not permanently aggravated by the Veteran's military service because his pes cavus and familial paraparesis were clearly genetic conditions that the Veteran would have developed with or without military service. To support this position, the examiner noted that the Veteran was seen for foot problems in 1970 and 1971, but that no problems were reported at the time of the Veteran's 1972 separation examination. Furthermore, the examiner emphasized that the Veteran did not seek post-service treatment for foot symptomatology until 1977, and that he worked as a civilian laborer following service. In its June 2012 Remand, the Board found that it was not clear whether the October 2010 VA examiner considered the requirement that the Veteran's foot disability both clearly and unmistakably preexisted service, and that it clearly and unmistakably was not aggravated by service. As such, the Board requested that the examiner clarify the opinion, and instructed the examiner that to find that the disability in question clearly and unmistakably preexisted service and was not aggravated by service, the evidence be obvious, manifest, and undebatable in establishing that it preexisted service and that it was not aggravated by service. In August 2012, the VA examiner clarified the October 2010 opinion. The examiner indicated that the Veteran had been confirmed by several specialists as having familial spastic paraparesis, which is a genetic condition. No problems were noted at the time of the Veteran's separation in 1972, and the Veteran subsequently reported that he had experienced progressive foot symptoms since childhood. As such, the examiner considered this obvious evidence that the disorder preexisted military service, and stated that his conclusion was undebatable. Furthermore, the examiner noted that the Veteran was placed on profile in July 1970, which restricted him from performing activities that would aggravate his preexisting foot condition. The examiner concluded that it was obvious that there was no in-service aggravation of the foot condition because the Veteran was placed on profile and had no complaints in 1971 or 1972, and that the evaluation and documentation of the foot disorder following separation from service in 1977, after civilian work as a laborer, is undebatable. The examiner indicated that there was no evidence that the military aggravated the Veteran's foot condition. The RO requested that the VA examiner further clarify his opinion, noting that it could not consider the fact that the Veteran's familial spastic parapaesis is a genetic disease to conclude that the disability existed prior to service. In an October 2012 addendum opinion, the examiner responded that pes cavus was not a condition that could develop to a "very high" or "severe" level in the short period from March 1970 to July 1970, and that for the Veteran's arches to have been described as "very high" in July 1970, it clearly had to have existed for several years. The examiner concluded that the presence of severe pes cavus in July 1970 is obvious and unmistakable evidence that the Veteran's pes cavus was present prior to his March 1970 enlistment into service. Based on the evidence above, the Board nonetheless finds that the record does not contain clear and convincing evidence of a diagnosis of pes cavus prior to service. Although the Veteran stated in October 1977 that he began experiencing foot symptomatology as a child, he later contradicted this statement in March 2008 when he indicated that he experienced one of the first symptoms of his current foot disorder while in service. Moreover, although subsequent VA treatment records indicate that the Veteran's condition preexisted service, these findings are based solely on the Veteran's statements made years following service separation. The Board recognizes that the October 2010 VA examiner opined that the Veteran's foot disorder was genetic in nature and therefore preexisted service; however, these medical opinions, rendered many years following the Veteran's period of service, do not constitute the contemporaneous clinical evidence or recorded history necessary to rebut the presumption of soundness. Miller v. West, 11 Vet. App. 345, 348 (1998). Therefore, the Board finds that the presumption of soundness is not rebutted and the Veteran did not have pes cavus upon entry into service. The Board notes that the first documented diagnosis of pes cavus was in July 1970, during active service. As the Veteran was diagnosed with pes cavus during active service and did not have a preexisting disability, the Board finds that service connection for pes cavus is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102., 3.303(b) (2012). Furthermore, even if the Board found that there was clear and convincing evidence that the Veteran's foot disability was a congenital or developmental defect that preexisted service, it has not been shown by clear and unmistakable evidence that the foot disability was not aggravated by service. As noted, the Veteran indicated at his March 1970 entrance into service that he never experienced any foot trouble, which was confirmed by the contemporaneous, objective examination report which indicated his lower extremities and feet were within normal limits. Moreover, the Veteran began basic training in March 1970, and went for several months without foot complaints. It was not until July 1970 that the Veteran complained of foot problems. By September 1970, his pes cavus was noted to be severe in nature. The Board recognizes that the August 2012 VA foot examination report noted that the Veteran was placed on profile in July 1970, which restricted him from performing activities that would aggravate his preexisting foot condition, and concluded that it was obvious that there was no in-service aggravation of the foot condition because the Veteran had no subsequent complaints in 1971 or 1972. However, the Board emphasizes that this is an inaccurate recitation of the evidence, as a review of the service treatment records clearly shows that the Veteran continued to be treated for his foot disability in September 1970 and February 1971, months after he was placed on permanent profile. ORDER Entitlement to service connection for a foot disability is granted. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs