Citation Nr: 1305099 Decision Date: 02/12/13 Archive Date: 02/21/13 DOCKET NO. 10-21 641 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for bone spurs with arthritis of the right great toe. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD A. Novak, Associate Counsel INTRODUCTION The Veteran had active military service from August 1973 to March 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2008, March 2009, and August 2009 rating decisions of the Department of Veterans' Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran had a hearing before a Decision Review Officer at the Waco RO in February 2011. Following the continued denial of her claim after this hearing, she sought and received a videoconference hearing in November 2012 before the undersigned judge. At the hearing, the Veteran and her spouse testified. The record closed at the hearing and the case is now ready for decision. FINDING OF FACT The Veteran's foot pain, now manifested as an acquired bone spur of her right great toe, had its onset in service and continued following his service discharge. CONCLUSION OF LAW The Veteran's acquired bone spur of the right great toe was incurred in military service. 38 U.S.C.A. §§ 1110 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the 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 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). Because the Board is granting service connection for bone spurs with arthritis of the right great toe, representing a full grant of the benefit sought on appeal, any failure with respect to the duty to notify or assist is nonprejudicial. Thus, no further discussion of VA's duties to notify and assist is necessary. II. Applicable Law Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection can be demonstrated for a disease diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994) (holding that proof of direct service connection may entail proof that exposure during service caused the malady that appeared many years later); Cosman v. Principi, 3 Vet. App. 503, 505 (1992) (holding that service connection can still be established even when a Veteran did not have a particular condition diagnosed during service or for many years thereafter). In order to establish service connection, the evidence must generally show (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). Alternatively, under 38 C.F.R. § 3.303(b), the second and, in some cases, the third elements can be established through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) evidence of a nexus between the present disability and the post-service symptomatology. Barr, 21 Vet. App. at 307. Symptoms, and not treatment, are the essence of any evidence of continuity of symptomatology. Savage, 10 Vet. App. at 496. Service connection is also permissible on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a)-(b) (2012). See also Allen v. Brown, 7 Vet App. 439, 448 (1995). Section 1154(a) requires VA to give "due consideration" to "all pertinent medical and lay evidence" when evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Generally, the Board should determine whether the Veteran's particular disability is the type of disability for which lay evidence is competent, and, if so, weigh that evidence against the other evidence of record in making its determinations. Kahana v. Shinseki, 24 Vet. App. 428, 433 n.4 (2011). The United States Court of Appeals for the Federal Circuit has 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." Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Lastly, a layperson may also be competent to testify to the manifestations of a chronic condition during service or a presumptive period or to continuity of symptomatology. Hickson, 12 Vet. App. at 253. Once evidence is determined to be competent, the Board must determine whether the evidence is credible. In assessing the credibility of the evidence, the Board may properly consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran, as well as, if applicable, the demeanor of the witness if oral testimony is given. Caluza, 7 Vet. App. at 511. The Board may also consider the effect of self-interest. Pond v. West, 12 Vet. App. 341, 345 (1999). The Board is responsible for evaluating the evidence of record and assigning due probative weight. Madden v. Grober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); see also Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005); Owens v. Brown, 7 Vet. App. 429, 433 (1995). Upon weighing the evidence, if there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to a veteran. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). III. Factual Background The Veteran claims that a bone spur with arthritis of her right great toe should be service-connected. She is currently in receipt of a 20 percent disability rating for a bone spur with arthritis of her left great toe. She claims that her right foot disability arose during her twenty-four years of active military service as a result of running, marching, wearing boots, and other stresses on her feet. She argues that her left foot required immediate attention after service, and she delayed treatment of her right foot as a result. The Veteran's service treatment records (STRs) show that she first complained about pain in the left great toe in May 1986. The physician noted that the pain "seems to be associated primarily with jogging," and her symptoms had been intermittent since the previous August. The diagnosis given for the left toe was "early mild degenerative changes involving the first metatarsophalangeal joint." She had arthroplastic surgery on her left great toe in November 1993 while stationed at Eglin Air Force Base, Florida. No references to her right great toe were made to examiners when the Veteran was treated for her left toe. While the STRs do not show the same level of treatment for her right great toe as her left great toe, she had a history of other foot problems during service, including treatment for plantar warts of her right foot in October 1985, December 1985, and again in January 1986. She received a podiatry consultation following her January 1997 retirement examination from service, where, in a document dated in March 1997, the podiatrist indicated that she had a hallux limitation and degenerative joint disease of her left great toe, and plantar warts on her right heel, as well as a well-healed surgical wound from the November 1993 surgery. The podiatrist indicated that her toe condition could necessitate additional surgery in the future, and he prescribed treatment for her plantar wart. In December 1997, her history of toe and foot problems notwithstanding, she was cleared to perform her duties as a Postal Service mail carrier. In a podiatry consultation dated in May 1999, following her retirement from active service, she again reported pain in her left great toe joint, but right great toe complaints were not noted. Her left side toe joint was found to be more limited than the right-side joint. In August 2005, a podiatrist record indicates that she had hallux limitus of both feet and crepitus of both great toes. At the time, her right great toe joint was more symptomatic than the left joint. The podiatrist indicated that she had a history of bilateral bunions and these were recurring. In a radiology report dated in March 2006, she was reported to have a bone spur of about 1.5 centimeters in her right great toe, with marked narrowing of the metatarsophalangeal joint space. The radiologist noted that these changes were consistent with osteoarthritis. A mirror opposite X-ray of the left toe showed a bone spur of about 1.2 centimeters with otherwise the same diagnosis: marked narrowing of the metatarsophalangeal joint space and "extensive" osteoarthritic changes. She had her first surgery on her right great toe in August 2006 and repeat surgery on her left toe in December 2006, according to surgical records and her work release form. She had a second surgery on her right great toe in November 2009. In May 2011, the Veteran submitted by facsimile a single page of a treatment record that appears to date from about 2010, given her age as listed on the document. According to this record, both of the Veteran's toe conditions were aggravated by military duties and the resulting arthritis was more likely than not caused by running, prolonged marching, and other in-service events. "Also as a result of surgery on the left foot," the Veteran may have developed a "secondary condition of the right foot." The Veteran had her first of three VA compensation examinations in October 2007. The first examination was for an increased rating of her left toe joint and did not involve a review of the STRs or of the post-service medical treatment records. She was initially service-connected for the left toe joint as of April 1997 after the podiatry consultation and her retirement from service. She had a second VA compensation examination in January 2009, this time for her right foot. Her STRs were not requested or reviewed, although her VA records were. According to the Veteran's statements, her feet began to bother her while on active duty about 1996 or 1997; because of the surgery on her left toe, her left side was worse than the right and had become extremely painful and deformed. She had a bunionectomy in June 2006 at William Beaumont Hospital. Her surgeries resulted in significant improvement, but she continued to have pain with prolonged standing and some deformity of the foot since the operations. She used custom-made inserts in her shoes, which were prescribed by her podiatrist, which benefitted her when she stood eight hours per day at her job. On examination, the physician noted a mild bunion deformity of her right great toe and a mild amount of tenderness of the joint. The metatarsophalangeal joint had 5 degrees of flexion and extended to 0 degrees, while the proximal interphalangeal joint of her great toe showed 0 to 15 degrees of flexion. The examination did not include a medical opinion. Her third VA compensation examination was in May 2011, and contains an addendum opinion from June 2011. In the May 2011 opinion, the podiatrist indicated that the Veteran did not have a right foot condition in service. She currently had right foot degenerative joint disease with spurring, which first appeared in 2006. The examiner concluded that her right toe condition is not caused by or a result of running in military boots or any other military cause. She did not have documented right great toe problems on her discharge examination from service, and her subsequent medical history shoes that these began sometime between 2005 and 2006. Her podiatrist gave the opinion that the foot problems were related to running in military boots but did not document going through her claims file. In June 2011, the VA examiner provided an addendum opinion to address whether the right great toe and foot condition could be secondary to the left toe and foot condition. According to the examiner, the Veteran's right foot bunions were degenerative changes that had occurred since discharge and were not related to her left foot condition and surgery. The examiner concluded that her "right foot condition [was] caused by age related changes to her foot rather than mechanical changes to her left foot surgery in the past." In addition to the three VA examinations, the record contains two opinions by private physicians. The first is an opinion by her treating foot surgeon, Dr. C.B., dated in May 2010. According to Dr. C.B., the Veteran suffered from a bone spur with arthritis of the great toe on the right foot, which was "due to her military training and service" and led to her November 2009 surgery to replace the metatarsophalangeal joint. The second private opinion was provided by Dr. A.P. in March 2011. Dr. A.P. indicated that he performed an in-person examination of the Veteran and "reviewed the treatment records and medical records." He opined "that the deformity and discomfort she is having on her right foot is related to the condition on her left foot," and that his review of the records showed bilateral painful inflammation since she was on active duty. In addition, "the cause of the deformity of one foot is similar to the cause of the deformity on the other foot," and the two could certainly be related. "The spurs and hallux limitus [at the first] metatarsophalangeal joint very likely are related to her service activity." He also indicated that the condition was longstanding, resulting in surgery in August 2006 and an identical surgery on the other foot later that year. "Therefore the condition has certainly been present for many years, including when she was on active duty." In the November 2012 hearing in the present case, the Veteran testified that her feet began giving her chronic problems in 1995 or 1996, but she just engaged in self-care and took over-the-counter medications. The left foot was worse than the right. She first saw a podiatrist when she was on terminal leave in March 1997. While she mentioned both toe conditions to him, the treatment focused on her worse left toe condition. He suggested continued self-care for the right foot. She had to stop jogging for exercise when the pain became too bad about 2005 or 2006, and she finally decided to have surgery. However, the bone spurs and arthritis recurred, and she had a second surgery in December 2009. She continued to feel pain and cramps in her toe when the weather was bad. She believed that she had the same condition on both of her feet, which began about the same time only more severely on the left side. She wore combat boots on both of her feet during her time in the military. Her husband also testified at the November 2012 hearing. He indicated that she complained about her left foot first, which is the one for which she had the initial surgery. Following the surgery, she complained more about the opposite foot, which started to bother her in her last year of service. She continually complained about the right foot condition after service until she could not tolerate it anymore, and as a consequence she finally elected to have the surgery. IV. Analysis As noted above, in order to establish service connection, the evidence must generally show (1) the existence of a present disability; (2) 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. Here, the evidence clearly shows the existence of a present disability in the form of a bone spur with arthritis of the right great toe. This condition was diagnosed in the medical opinions of the Veteran's treating podiatrist and treating foot surgeon, and was demonstrated on VA examination of May 2011. In addition, the second criterion of service connection, namely an in-service incurrence or aggravation of a disease or injury, is likewise shown in this present case. The Veteran testified that she wore boots on both of her feet and that her toe problems began on both feet about the same time, but with the left side initially worse. Consequently, she received treatment for it first, while she was still in service. She further testified that her right great toe condition slowly worsened from her ordinary daily activities until she decided to have surgery on it-the same surgery as she previously underwent on her left foot-in order to relieve the pain. Her husband's testimony supported the Veteran's assertions. The Veteran's statements are credible as they relate to an observable symptom, namely the onset of pain in her toes, and the mechanism of the injury as resultant from prolonged running and marching in boots has already been recognized as the cause of the bone spur with arthritis in the left great toe. Her treatment records around the time of her first right great toe surgery refer to her condition as bilateral and note that she has the same bone spur on both toes, although the radiology reports indicate that the arthritis was more advanced on her left toe. While the STRs do not document an orthopedic or joint-related toe injury of the right side during service, the Veteran is competent to relate the pain and problems she had with her foot in service. She has also indicated that the pain in her right foot was very much like the pain in her left, and provided a reasonable explanation for her lack of treatment to her right great toe. The Board finds that the Veteran need not meet the third element of direct service connection, that of a nexus between her in-service injury and the acquired bone spur of the right foot, because based upon her statements, this disability has been continuous since service. As noted above, under 38 C.F.R. § 3.303(b), the second and, in some cases, the third elements can be established through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) evidence of a nexus between the present disability and the post-service symptomatology. Barr, 21 Vet. App. at 307. Symptoms, and not treatment, are the essence of any evidence of continuity of symptomatology. Savage, 10 Vet. App. at 496. Here, the Veteran and her husband have reported that her pain began in service. The post service treatment records show that she has experienced continued symptoms and has had surgery on the right great toe. Finally, her private doctors have connected her current disability to her service. The private medical opinions outweigh the VA examiner's opinion because the private doctors relied, in part, on the Veteran's description of when and how the right great toe pain started. The VA examiner based her opinion on the lack of documentation in service showing complaints or symptoms related to the right great toe. The Veteran's credible lay testimony, her well-documented history of her service-connected bone spur with arthritis of the left toe, and her post-service history of treatment of the right great toe make it more likely than not that the bone spur with arthritis of her right great toe arose as a result of wearing boots while running and marching during military service, just as it did in the left toe. For these reasons, this claim for service connection is granted. ORDER Service connection for bone spurs with arthritis of the right great toe is granted. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs