Citation Nr: 1304577 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 06-18 542 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for a left foot disability. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from September 1988 to February 1993. This matter comes before the Board of Veterans' Appeals (Board) from a December 2006 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Philadelphia, Pennsylvania. In January 2009, the Veteran and a witness testified before a Decision Review Officer in Philadelphia, Pennsylvania. A transcript of that hearing is of record. In April 2010, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This matter was previously before the Board in August 2010 and April 2012 and was remanded for further development. It has now returned to the Board for further appellate consideration. As is discussed in further detail below, the Board finds that the RO substantially complied with the mandates of the remands and will proceed to adjudicate the appeal. See Dyment v. West, 13 Vet. App. 141 (1999) (noting that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The prior remands included the issue of entitlement to service connection for sleep apnea. In a November 2012 rating decision, the Appeals Management Center (AMC) granted entitlement to service connection for sleep apnea; thus, that issue is no longer for appellate consideration. FINDINGS OF FACT 1. The Veteran had a preexisting fractured left foot noted upon entrance into service. 2. The evidence of record is against a finding that the Veteran's preexisting left foot fracture disability was aggravated by active service. 3. The Veteran's and other lay statements are less than credible with regard to a left toe disability since service. 4. There has been no demonstration by competent medical, nor competent and credible lay, evidence of record, that the Veteran has a left foot disability, to include a toe disability, causally related to active service. 5. Clear and unmistakable evidence reflects that the Veteran had a fractured left foot disability which existed prior to service. 6. Clear and unmistakable evidence reflects that the Veteran's preexisting fractured left foot disability was not aggravated due to active service. CONCLUSIONS OF LAW 1. Pre-existing left fractured foot was not aggravated by active service, nor were residuals incurred in, or aggravated by service. 38 U.S.C.A. §§ 1111, 1110, 1153, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306 (2011). 2. Left foot disability was not incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1137, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has duties 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). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice was provided to the Veteran in October 2006. VA also has a duty to assist the Veteran in the development of the claims. The claims file contains VA and private medical records, and the statements of the Veteran and others in support of his claim. The Board has considered the statements and perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim for which VA has a duty to obtain. The Veteran was afforded VA examination in May 2012. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examination/opinion obtained in this case is adequate, as the opinion is predicated on an examination of the Veteran and a review of his claims file, to include his STRs. It considers the pertinent evidence of record, to include statements of the Veteran regarding his symptoms. Rationale was provided for the opinion proffered. The Board also notes that the record as a whole, as discussed below, supports the examiner's opinion. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claims. Essentially, all available evidence that could substantiate the claim has been obtained. Legal Criteria Service Connection Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology. See Barr v. Nicholson, 21 Vet.App. 303 (2007). Continuity of symptomatology can be demonstrated by showing (1) that a condition was "noted" during service; (2) evidence of continuous symptoms after service; and (3) medical, or in certain circumstances, lay evidence of a nexus between the current disability and the post service symptoms. Savage v. Gober, 10 Vet.App. 488 (1997). Under C.F.R. § 3.304 (b) the Veteran will be considered to have been in sound condition when examined, accepted and enrolled for 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 to service and was not aggravated by such service. Only such conditions as are record in examination reports are to be considered as noted. A pre-existing injury or disease will be considered to have been aggravated by active military, naval or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153, 38 C.F.R. § 3.306(a). Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying disability, as contrasted to the symptoms of that disability, has worsened. See Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). If a presumption of aggravation under section 1153 arises, due to an increase in a disability in service, the burden shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease." 38 U.S.C. § 1153; see also 38 C.F.R. § 3.306; Jensen v. Brown, 19 F.3d 1413 (Fed. Cir. 1994); Wagner v. Principi, 370 F. 3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence (obvious and manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence pertinent to the claim on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the U.S. Court of Appeals for the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Board has analyzed the Veteran's left foot both as having a preexisting disability, and in the alternative, being normal upon entrance. The Veteran avers that he had a left foot disability prior to service and that it was aggravated by service. He testified at the January 2009 DRO hearing that before the service, he broke his left foot and had it casted. He stated that after the cast was removed, it was better, but that while marching, standing, and slamming his feet in the service, it started to bother him. The Veteran's August 1988 report of medical history for entrance purposes reflects that he reported having had a broken bone prior to service. The physician's summary and elaboration reflects that the Veteran had fractured his left foot in 1982, with no sequelae. The August 1988 report of medical examination reflects that upon clinical evaluation it was noted that the Veteran had an abnormal left foot. The "notes" section reflects that the Veteran had a fractured left foot. Thus, the Veteran's prior fractured left foot was noted upon entrance and the presumption of soundness does not apply. 38 C.F.R. § 3.304. (The Board notes that in its prior remands, it noted that the report of medical examination for enlistment did not note any left foot disability; however, a review of the report reflects that it does note that the feet were abnormal due to a left foot fracture.) As noted above, a pre-existing injury or disease will be considered to have been aggravated by active service, where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.38 C.F.R. § 3.306. The February 1993 report of medical history for separation purposes reflects that the Veteran reported a prior history of broken bones. He also reported "foot trouble". The physician's summary and elaboration notes reflect that the Veteran had a history of a fracture of the left foot with chronic/recurrent pain since then. With regard to the "broken bones" and the "foot trouble," it was noted that the Veteran had a history of a left foot fracture which existed prior to enlistment and was not considered disabling. The Veteran's report of medical examination for separation purposes reflects normal feet upon clinical examination. Although the Veteran reported, at separation, that he had chronic or recurrent pain with regard to this left foot, it was noted that this had existed since the fracture. In addition, while the Veteran may have had pain during service, the evidence does not reflect that this pain was an increase in the underlying disability, as opposed to a temporary increase in occurrence of the symptoms. See Crowe v. Brown, 7 Vet. App. 238 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The clinical evidence of record does not reflect a permanent aggravation of his preexisting fracture due to service. Thus, service connection is not warranted for a left foot fracture, or residuals of such. In addition, although the Veteran reported that he had chronic pain in service, the credible evidence does not reflect chronic pain from service due to a left foot disability as opposed to a systemic disease. The claims file includes a statement by the Veteran's spouse that the Veteran was sick and lost weight in boot camp. She reported that his shoulders, knees, heels, wrists, elbows, back, hands, fingers, and different joints hurt in camp. August 1994 private medical records reflect that the Veteran first noted the onset of joint pain in July 1993 when he had pain in the right shoulder. It was noted that he was treated with anti-inflammatory medications and the pain resolved the next three or four days. The record further reflects that "[o]ver the next few months, he developed joint pains in the feet, ankles, knees and hands." He was working as a car salesman at that time and was finding it increasingly difficult to walk." It was noted that in August 1994, he had complaints of pain continuing in the joints, to include the feet. The record reflects complaints with regard to both feet. The Veteran was diagnosed with seropositive rheumatoid arthritis. A February 1995 private medical record reflects that the Veteran had complaints of "soreness in the toes in the left foot." It was noted that "[o]therwise, arthritis is doing reasonably well on the current regimen." A May 1995 private medical record reflects that the Veteran had complaints of "some generalized soreness and stiffness. Also, particularly complains of pain in the MTP joints of the left foot." An October 2005 statement from the Veteran's sister, R.G., reflects that the Veteran started having physical difficulties in boot camp. She reported that his "knees were giving him trouble." A May 2004 report from the University of Medicine and Dentistry of New Jersey School of Osteopathic Medicine reflects that the Veteran has seropositive rheumatoid arthritis. It was noted that he did not need a cane or a walker and there was no antalgic gait. An August 2009 VA rheumatology report reflects that the Veteran has non-deforming sero-positive rheumatoid arthritis. It was noted that he had "occasional rare discomfort lateral aspects of both feet that is quite transient. Had a special sling for second [left] hammertoe in past but found it unhelpful." A September 2009 VA rheumatology record reflects that the Veteran continued on medication for his rheumatoid arthritis. It was noted that his "most recent complaints have been of persistent tingling and numbness in the lateral aspects of both feet." A September 2010 VA examination report reflects that the Veteran had subjective complaints of left foot pain which he describes as moderate intermittent pain, which occurs three times weekly. Upon clinical examination, the Veteran's left foot had noted second toe deviation medially, approximately 20 degrees from midlines. Active and passive range of motion of all toes of both feet was normal, to include after repetitive motion. With active and passive range of motion with the use of goniometer bilaterally, dorsiflexion was 0 to 20 degrees, plantar flexion was 0 to 45 degrees, inversion was 0 to 35 degrees, eversion was 0 to 25 degrees. There was no evidence of pain of the feet bilaterally with range of motion. There was no edema, weakness, or instability of the feet. There was mild tenderness noted along the second metatarsal dorsal aspect of the left foot. There was no evidence of callous formation of the feet, and no evidence of unusual shoe pattern wear of the shoes to suggest abnormal weight bearing. He does not have flat feet. The Veteran was diagnosed with deviation of the left second toe. The examiner opined that the Veteran's current left foot disability is not caused by, or a result of, the Veteran's service. A May 2012 VA examination report reflects that the Veteran stated that prior to service, he had a broken left foot. He stated that "he had recurrence of intermittent pain on the left foot, in 2007 and saw a podiatrist. His 2nd toe was injected with steroid injection and wear shoe inserts with good resolution of pain." The Veteran further stated that he developed rheumatoid arthritis and altered balance and became dependent with cane. He stated that he has intermittent pain on the left foot when putting pressure and prolonged walking of more than block. It was noted that the Veteran had "no hammertoes. He has second toe mild hallux valgus." Upon clinical examination, there was slight discoloration below the 2nd toes MPJ with complaint of tenderness on palpation. The examiner opined that there is clear and unmistakable obvious evidence that the Veteran had a preexisting left foot disability and there is clear and unmistakable evidence that his preexisting left foot disorder was not aggravated by the service. The examiner noted that the Veteran's report of medical examination upon separation reflected normal feet. In addition, the examiner noted that there was no evidence that the Veteran sought treatment for the left foot in service. The examiner also noted that it was less likely as not that the Veteran's left foot disorder was caused by or aggravated by his military service. The Veteran testified at the April 2010 Board hearing, that he did not have an accident or particular incident in service with regard to this left foot. He stated that he was starting to get some pains maybe in boot camp with it, but that he had more problems with his knees in boot camp than anything. He stated that his service included running up and down ladders. He testified that it was not long after he got out of service that his wife started asking him what was wrong with his foot because she saw his "toe over." He stated that he did not see a doctor until a "couple years ago." He reported that he was told that the ball of his foot "got smashed" when he broke it and it's gradually I guess deteriorating or something like that." (See Board hearing transcript page 6.) He further stated that he thought it was like "a tendon or something like that." The Board notes that the clinical evidence of record, which is more competent with regard to a foot disability, is against any finding of a tendon or other injury. In sum, the Veteran had a broken left foot prior to service. The Veteran had subjective complaints of foot pain upon separation; however, upon clinical examination his left foot was noted to be normal. The report is negative for any deviation of the left second toe. As the Veteran had complaints of recurrent pain and a prior fracture left foot, the Board finds that if the Veteran had a second toe deviation or mild hallux valgus, it would have been noted upon clinical examination; it was not. There is no competent credible evidence or clinical evidence of record that the Veteran's underlying disability, as contrasted to the symptoms of that disability, worsened during service. See Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The Board also notes that the Veteran was seen on numerous occasions, post service, for pain of the joints. The records are negative for hallux valgus. As noted above, the Veteran's complaints of foot pain, have been routinely clinically found to be related to his rheumatoid arthritis. (The Veteran is service connected for rheumatoid arthritis.) In addition, the February and May 1995 private medical record reflects that the Veteran had complaints with regard to his toes in the left foot; however no deformity was noted. If the Veteran had a toe deformity at that time, the Board finds that it would have been reasonable for it to have been noted upon examination, and for it to have been reported in the clinical records, at that time; it was not. The earliest clinical evidence of a foot disability, other than the rheumatoid arthritis, is in approximately 2009, more than 16 years after separation from service. The lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service connection claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board has considered the statements of the Veteran and his family members and acknowledges that the Veteran is competent to report his pain; however, the Veteran and his relatives have not been shown to have the requisite training or credentials needed to render a competent opinion as to medical diagnosis or causation. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). As such, their lay opinions do not constitute competent medical evidence and lacks probative value. In this regard, the Board has considered that the statements reflect pain in service and since service. The Board also finds that there is no competent credible evidence of continuity of symptomatology since service with regard to a preexisting fractured left foot or with regard to a toe deformity. While the Board is competent to report pain, his complaints with regard to this left foot were clinically diagnosed as symptoms of his rheumatoid arthritis in 1994. It was not until more than a decade after separation from service, that the Veteran was diagnosed with an additional disability with regard to the toe. Although the Veteran contends that his wife noticed a toe deformity after service, his foot (to include toes) was normal upon clinical examination at separation. The Board finds that the clinical records, to include those contemporaneous to service, are more credible than the lay statements. See Cartright v. Derwinski, 2 Vet. App.24, 25 (1991) (finding that, while the Board may not ignore a Veteran's testimony simply because he or she is an interested party and stands to gain monetary benefits, personal interest may affect the credibility of the evidence); see also Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the testimony). There is no clinical evidence of record that the Veteran's toe disability is, in any way caused by active service, or that it was due to aggravation in active service of a preexisting left foot fracture. The Board has considered whether the Veteran's left foot disability was not preexisting for VA purposes because the report of medical examination upon entrance did not specifically note that the Veteran had residual symptoms of his left foot fracture. As noted above, under C.F.R. § 3.304 (b) the Veteran will be considered to have been in sound condition when examined, except as to defects, infirmities, or disorders noted at entrance into service. This presumption of soundness is rebutted when there is clear and unmistakable evidence which demonstrates that an injury or disease existed prior to service and when there is clear and unmistakable evidence that the injury was not aggravated by such service. The Board finds that there is clear and unmistakable evidence that the Veteran had a fractured left foot prior to entrance. The Veteran reported such upon entrance into service, it was noted on the clinical records, and the Veteran has testified as to such. The Board also finds that there is clear and unmistakable evidence that the Veteran's pre-existing left foot disability was not aggravated by service. The Veteran's 1993 separation examination report reflects normal feet upon clinical examination. The post-service clinical records do not reflect an aggravation. Finally, the May 2012 VA examiner also found clear and unmistakable evidence of a preexisting left foot fracture and clear and unmistakable evidence that it was not aggravated by service. Not only is there clear and unmistakable evidence that the Veteran's preexisting left foot disability was not aggravated by service, but the Board also notes that there are no clinical records which reflect that the Veteran has any other left foot disability causally related to active service, to include aggravation. Based on the evidence of record, the Board finds that service connection for a left foot disability is not warranted. The Board has considered the benefit of the doubt rule, but finds that it is, therefore, not applicable. See 38 U.S.C.A. § 5107(b); Gilbert . v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a left foot disability is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs