Citation Nr: 1305359 Decision Date: 02/13/13 Archive Date: 02/21/13 DOCKET NO. 10-16 435 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a bilateral foot disability. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J.M. Seay, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1977 to October 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran's case was remanded by the Board in December 2011 and November 2012 and has been returned to the Board for review. FINDINGS OF FACT 1. Bilateral pes planus and bunion (hallux valgus) of the right great toe were noted on the entrance examination report and, therefore, existed prior to the Veteran's period of active service. 2. The most probative evidence does not reflect that the Veteran's preexisting bilateral pes planus and hallux valgus of the right great toe increased in severity as a result of active service. 3. The most competent and probative evidence of record does not establish a relationship between the Veteran's bilateral foot disability (other than bilateral pes planus and hallux valgus of the right great toe) and his military service or any incident therein. CONCLUSION OF LAW The criteria for service connection for a bilateral foot disability have not been met. 38 U.S.C.A. §§ 1112, 1113, 1153, 1131, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). The April 2009 letter satisfied the duty to notify provisions and notified the Veteran of regulations pertinent to the establishment of an effective date and disability rating. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As to the duty to assist, the Board finds that VA has secured all available and identified evidence including the Veteran's service treatment records, VA treatment records, and Social Security Administration (SSA) records. The Veteran was provided VA examinations in April 2011, December 2011, and November 2012. The April 2011 VA examiner opined that it was less likely than not that the Veteran's foot condition was related to foot treatment in the service as there was no evidence of foot treatment in service on examination of the claims file. The Board remanded the Veteran's claim in December 2011 as the Veteran was assessed with mild pes planus with hallux valgus of the right great toe on his entrance examination report; prior to active service. Therefore, the remand directed that an examiner provide an opinion as to whether the Veteran's bilateral disability worsened in service and, if so, is there evidence that the worsening was clearly and unmistakably due to the natural progression of the disease. The Veteran was provided a VA examination in December 2011 and the examiner stated that the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its normal progression. The rationale was that there were no service treatment records indicating a chronic aggravation of his foot condition. The examiner explained that the Veteran had a very mild bilateral hallux valgus deformity today and it appeared that he had a very mild case of hallux valgus documented in his service treatment records, indicating no progression. In November 2012, the Board remanded the Veteran's claim because the December 2011 examiner did not discuss the preexisting pes planus in the rationale for the expressed opinion. Therefore, a more thorough opinion was required with respect to the pes planus. In accordance with the November 2012 remand, the Veteran was provided a VA examination in November 2012. The examiner reviewed the claims file and noted that there was one notation of mild pes planus on the entrance examination. The examiner explained that without a more detailed description of his flat feet on his entrance physical and without any other medical documentation noted in the Veteran's service treatment records concerning his flat feet, it would be mere speculation to state that his flat feet worsened during his military service. The examiner then opined that it was less likely as not that his flat feet worsened due to his military service. The Board notes that the second opinion is somewhat incongruent with the examiner's opinion that it would be mere speculation to state whether the flat feet worsened during active service. Thus, the Board will use the first opinion in the adjudication of the Veteran's claim. Regardless, the Board finds that the opinion is adequate. The examiner could not provide an opinion as to whether the Veteran's disability worsened, but explained the reasons for this conclusion including the absence of documentation in the service treatment records. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010) (noting that a speculative medical opinion is not per se inadequate, but the examiner must provide a basis for that determination and the phrase "without resort to speculation" should reflect the limitations of the medical community at large and not those of a particular examiner/reviewer). The Board finds that the examination and opinion are adequate and in substantial compliance with the Board's remand directions. See 38 U.S.C.A. § 5103A(b); 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). There is no indication in the record that any additional evidence, relevant to the issue adjudicated in this decision, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). In adjudicating the claim below, the Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service except as to defects, infirmities, or disorders noted at the time of examination, acceptance, enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304. A preexisting injury or disease will be considered to have been aggravated where there is an increase in severity during service unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 C.F.R. § 3.306(a) (2012). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preserves disability underwent and increase in severity during service. 38 C.F.R. § 3.306(b) (2012). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306(b) (2012). The claimant has a burden to prove an in-service increase in severity only when the disability is shown to pre-exist service by virtue of being found on the entrance examination under 38 U.S.C. § 1153. Wagner v. Principi, 370 F3d. 1089, 1096 (Fed. Cir. 2004). The Court has recently clarified that an important distinction between section 1111's aggravation prong of the presumption of soundness and section 1153's presumption of aggravation is the burden of proof. Under section 1111, the burden is on the Government to show by clear and unmistakable evidence that there was no increase in disability in service or, that any increase was due to the natural progress of the disease. Wagner, 370 F.3d at 1096. Under section 1153, however, the Appellant bears the burden of showing that his preexisting condition worsened in service. Id. Once the veteran establishes worsening, the burden shifts to the Secretary to show by clear and unmistakable evidence that the worsening of the condition was due to the natural progress of the disease. Horn v. Shinseki , 25 Vet. App. 231, 235 (2012). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998). First, the Board will address the Veteran's bilateral pes planus with hallux valgus of the right great toe. The April 1977 entrance report of medical examination shows that the Veteran was diagnosed with mild pes planus with bunion (hallux valgus) of the right great toe. As the Veteran's pes planus with hallux valgus of the right great toe was noted on the entrance examination, the presumption of soundness does not attach. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304. Accordingly, the remaining question is whether the Veteran's preexisting bilateral pes planus with hallux valgus of the right great toe increased in severity as a result of active service. After review of the evidence prior to, during, and after service, the Board finds that it did not and aggravation may not be conceded. In order to support a finding of aggravation, the evidence must establish that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a). Aside from the April 1977 entrance examination report revealing a diagnosis of mild bilateral pes planus with hallux valgus of the right great toe, the remaining service treatment records do not reflect treatment for bilateral pes planus with hallux valgus of the right great toe or pain in the feet. The March 1978 report of medical examination, completed almost one year after entrance into active service, shows that the Veteran's feet were clinically evaluated as normal and the report does not reveal any complaints or notations related to the feet. The service treatment records reflect that the Veteran had a blister, athlete's foot, and was put on a 72 hour profile for an ankle sprain with negative X-rays. The September 1983 separation report of medical examination shows that the Veteran's feet were clinically evaluated as normal. The September 1983 report of medical history reveals that the Veteran denied experiencing foot trouble. Although the Veteran has reported that he experienced pain during service and periodic pain after service, there is no objective evidence of treatment for the feet until the 2000s, decades after the Veteran's separation from active service. The passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding, in an aggravation context, that the Board may consider a prolonged period without medical complaint when deciding a claim). The Veteran is competent to report that he experienced pain in his feet during his service and periodically since service because this symptom is observable by a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2007). However, the Board finds that the Veteran's statements regarding his in-service symptoms are less than credible. Aside from the diagnosis in the entrance examination report, the service treatment records do not reveal treatment for bilateral pes planus or hallux valgus/bunions. The Veteran received medical treatment for many other ailments to include knee pain, back pain, and hand pain, but the records do not reflect complaints related to pes planus, hallux valgus, or pain in his feet. The Board does not find it reasonable that the Veteran would seek treatment for pain in other extremities, but not mention or seek treatment for pain in his feet. The March 1978 report of medical examination, completed approximately one year after entrance into active service, shows that the Veteran's feet were clinically evaluated as normal. The September 1983 separation report of medical examination also shows that the Veteran's feet were clinically evaluated as normal. The September 1983 report of medical history reveals that the Veteran denied experiencing foot trouble. Thus, the Veteran's reports of his in-service symptoms are not particularly credible because his statements are inconsistent with his prior statements (denying foot trouble at separation from active service) and the absence of treatment or complaints in the service treatment records. However, even if the Veteran experienced pain during service, a preexisting disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a). As the competency of the Veteran's lay testimony is founded on his ability to observe his symptomatology, his lay testimony cannot be competent to opine on a matter where the occurrence of symptoms alone is insufficient evidence. Therefore, his statements are not competent with respect to whether his underlying disability increased in severity as a result of his active service. Aside from the Veteran's contentions, the medical evidence does not establish that the preexisting bilateral pes planus and hallux valgus of the right great toe increased in severity as a result of his military service. The November 2012 VA examiner noted that there was evidence of pes planus upon entrance to active service, but that there was not a detailed description on entrance and without any other medical documentation, it would be speculation to state that his flat feet worsened during active service. A finding of service connection may not be based on a resort to speculation or even remote possibility. See 38 C.F.R. § 3.102 (2012). The December 2011 VA examiner addressed the preexisting hallux valgus. The examiner opined that the claimed condition was not aggravated beyond its normal progression. In the rationale, the examiner explained that there were no service treatment records indicating a chronic aggravation of his foot condition bilaterally. He currently had a very mild bilateral hallux valgus deformity and he had a very mild case of hallux valgus demonstrated in the service records, indicating no progression. In light of the above, the evidence of record does not support that the Veteran's preexisting pes planus with right hallux valgus increased in severity as a result of active service. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b) (2012); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). The service treatment records are absent for any treatment or complaints regarding the preexisting disability, the examinations conducted in service showed that the Veteran's feet were clinically evaluated as normal, and the Veteran denied experiencing foot trouble on the separation report of medical history. Further, although the Veteran reported periodic pain since service, there is no objective treatment for the disability until decades after separation from active service, which is another factor that weighs against an increase in severity of the preexisting bilateral pes planus and hallux valgus of the right great toe. Further, there is no competent or credible evidence indicating that the Veteran's underlying disability increased in severity during active service. With respect to a bilateral foot disability, other than bilateral pes planus and hallux valgus of the right great toe, service connection is not warranted. The current medical evidence shows that the Veteran has been diagnosed with hallux valgus of the left foot. The January 2009 x-ray shows an impression of mild hallux valgus and no significant arthritic changes in either foot. The bunion deformities were radiographically mild. Hallux valgus of the left foot was not noted on entrance to active service and the presumption of soundness attaches. Thus, the Board must address direct service connection for a bilateral foot disability, other than bilateral pes planus and hallux valgus of the right great toe. The service treatment records show that the Veteran had a blister that was treated and drained and he had athlete's foot. The records do not reveal notations related to bunions or foot pain. The March 1978 report of medical examination shows that the Veteran's feet were clinically evaluated as normal and the report does not reveal any complaints or notations related to the feet. The September 1983 separation report of medical examination shows that the Veteran's feet were clinically evaluated as normal. The September 1983 report of medical history shows that the Veteran denied experiencing foot trouble. The Veteran was provided a VA examination in April 2011. The examiner noted that the Veteran reported that he developed pain in his feet while in service and that he saw physicians and initially did not receive any treatment. He stated he was given profile for one year and told to wear sneakers. He continued with pain the rest of the time that he was in service and after discharge, he continued to have periodic pain. The examiner noted that there was no evidence of foot treatment in service on examination of the claims file. Therefore, it was less likely than not that his foot condition was related to foot treatment in the service. The Board finds that the examiner's opinion is probative as the examiner reviewed the claims file, noted the Veteran's statements and reported history, cited to evidence in the record, and provided an opinion with supporting rationale. The Board acknowledges the Veteran's assertions that he had pain during active service, was put on a one year profile for his feet and told to wear sneakers, and that he had periodic pain ever since service. The Veteran is competent to report symptoms of pain. However, the Board finds that the Veteran's statements related to continuity of symptomatology since service are not credible. Again, the service treatment records do not reveal that the Veteran was put on profile for his feet and while the Veteran complained of many other ailments to include pain in his knee, hand, and back, the Veteran did not mention any problems with his painful feet. The Board does not find it reasonable that the Veteran would complain of other problems but not report pain in his feet. Further, the separation report of medical history shows that the Veteran denied experiencing foot trouble. This calls the credibility of the Veteran's lay statements as to continuity into question. Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006). His in-service history of symptoms at the time of service separation is more contemporaneous to service, so is of more probative value than the more recent assertions made many years after service separation. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding a Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements asserting different etiology); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board decision giving higher probative value to a contemporaneous letter the veteran wrote during treatment than to his subsequent assertion years later). The Board has weighed the Veteran's statements, including those regarding continuity of symptomatology, and finds his current recollections and statements made in connection with a claim for VA compensation benefits to be of lesser probative value than his previous more contemporaneous in-service statements to include the findings at service separation. Therefore, the Veteran is found to be not credible regarding the onset and continuity of his symptoms. For these reasons, the Board finds that the weight of the lay and medical evidence is against a finding of continuity of symptoms since service separation. The Board acknowledges the Veteran's opinion that his bilateral foot disability is caused or aggravated by active service. While there is no bright line exclusionary rule that a lay person cannot provide opinion evidence as to a nexus between an in-service event and a current condition, not all medical questions lend themselves to lay opinion evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As to a nexus opinion relating any current bilateral foot disability to active service, the Board finds that the etiology of a bilateral foot disability is a complex medical question and the Veteran is not competent to provide an opinion as to its etiology. In any event, the Board finds that the VA examiner's opinion is more probative than the Veteran's statements. The Veteran has essentially stated that he had pain in active service and, therefore, his disability was caused by service. However, the service treatment records are completely absent for any complaints or notations of foot pain and the Veteran denied experiencing foot trouble at separation. As noted above, the Veteran's statements have not been found to be credible with respect to the onset and continuity of his symptoms. In contrast, the VA examiner took into account the Veteran's statements and reported history, examined the Veteran, reviewed the claims file, and did not relate the Veteran's bilateral foot disability to active service. Based on the above, the Board finds that the Veteran's bilateral foot disability, other than bilateral pes planus and hallux valgus of the right great toe, did not have its onset during service and is not causally or etiologically related to service. There is also no evidence of arthritis within the first post-service year and, therefore, service connection under the presumptive provisions of 38 C.F.R. § 3.309 is not warranted. See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.307 (2012). As such, the preponderance of the evidence is against the claim. There is no doubt to be resolved, and service connection is not warranted. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a bilateral foot disability is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs