Citation Nr: 1306419 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 07-10 099A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE 1. Entitlement to service connection for bilateral hallux valgus. 2. Entitlement to service connection for a bilateral foot disorder, characterized as pes planus and plantar fasciitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran, Dr. D.M. ATTORNEY FOR THE BOARD B. Thomas Knope, Counsel INTRODUCTION The Veteran served on active duty from February 1987 to December 1990. This matter is on appeal from a January 2006 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. Pursuant to a July 2010 Board decision, this claim was reopened and remanded for further development. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The claim was again remanded in September 2011 and is now ready for disposition. FINDINGS OF FACT 1. Hallux valgus was noted upon entry into active duty service, but did not increase in severity during such service. 2. A bilateral foot disorder, characterized as pes planus and plantar fasciitis, is attributable to active duty service. CONCLUSIONS OF LAW 1. Hallux valgus preexisted service and was not aggravated by such service. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2012). 2. The requirements for service connection for a foot disorder, characterized as bilateral pes planus and plantar fasciitis have been met. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 As provided for by the Veterans Claims Assistance Act of 2000 (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 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant and her representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Here, neither the Veteran nor her representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. Indeed, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in October 2005 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed her of what evidence was required to substantiate the claims and of her and VA's respective duties for obtaining evidence. With respect to the Dingess requirements, the Veteran was not provided with notice of the type of evidence necessary to establish a disability rating or effective date for the disability on appeal. However, to the extent that the claim is being denied, there is no prejudice in issuing a final decision because the preponderance of the evidence is against the claim for service connection. Any questions as to the appropriate disability rating or effective date to be assigned are moot. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of her case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). First, the RO has obtained the Veteran's service treatment records and VA outpatient treatment records. The Veteran has also submitted treatment records from a private facility Additionally, VA examinations with respect to the issue on appeal were also obtained in August 2010 and October 2011. 38 C.F.R. § 3.159(c) (4). To that end, when VA undertakes to provide a VA examination or, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted below, the Board finds that the VA examinations obtained in this case is more than adequate, they are predicated on a full understanding of the Veteran's medical history, and provide a sufficient evidentiary basis for the claim to be adjudicated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). Next, the Veteran was also afforded a hearing before the undersigned hearing officer in April 2010. This hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), which consist of (1) fully explaining the issue and (2) suggesting the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Notably, the Veteran was specifically asked about the foot symptoms she experienced in service and how this disorder affects her daily living. Finally, it is noted that this appeal was remanded by the Board in July 2010 and again in September 2011. In the July 2010 remand, the Board instructed the RO to identify any private treatment the Veteran has received and, if any, acquire the records associated with such treatment. The RO was also instructed to afford the Veteran a VA examination. In September 2011 the Board determined that the previous VA examination was inadequate, and a new examination was required. The Board is now satisfied there was substantial compliance with these Remands. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Specifically, as noted above, the RO acquired private treatment records, and the Veteran was afforded VA examinations in August 2010 and October 2011, which the Board collectively finds adequate for adjudication. Following these actions, the issue was readjudicated, and a supplemental statement of the case was sent to the Veteran most recently in June May 2012. Accordingly, the Board finds that the December 2011 Remand directives were substantially complied with to the extent that the claim is being adjudicated, and there is no Stegall violation in this case. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). With regard to the pes planus aspect of this claim, the Board is granting service connection for this disorder. 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 need not be further considered. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Generally, the evidence must 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, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Moreover, under 38 C.F.R. § 3.303(b), the second and third elements of Shedden and Caluza may be established through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007). 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) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). Finally, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, "[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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). In this case, the Veteran is seeking entitlement to service connection for a foot disorder, which has been diagnosed on different occasions as hallux valgus, plantar fasciitis and pes planus (flat feet). These disorders have been addressed somewhat interchangeably by the RO, and have typically been adjudicated as a single disorder. See, by analogy, Clemons v. Shinseki, 23 Vet. App. 1 (2009) (for the proposition that a claim for service connection is based around claimed symptoms rather than specific diagnoses. While it is true that VA regulations specifically prohibit assigning a disability evaluation of the same disability under various diagnoses, a practice known as "pyramiding," 38 C.F.R. § 4.14 (2012), the limitations brought about by hallux valgus are different than the limitations cause by pes planus. In fact, they are rated by separate diagnostic codes. See 38 C.F.R. § 4.71a DC 5276, 5280 and 5281 (2012). Therefore, they should be considered separately, where applicable. However, as there is no specific diagnostic code for plantar fasciitis, the Board determines that its symptoms are best considered in conjunction with her pes planus claim. Hallux Valgus Regarding the Veteran's hallux valgus, this disorder was observed at the time she enlisted into active duty in February 1986, specifically described as "minor" and "asymptomatic." Generally, a veteran is 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 demonstrated that an injury or disease existed prior thereto. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). Here, as the Veteran's pes planus was observed at the time she entered active duty, this presumption does not apply. 38 U.S.C.A. § 1111. Rather, there must be evidence that her pre-existing hallux valgus was aggravated in service beyond natural progression. 38 U.S.C.A. § 1153. It should be emphasized that evidence of aggravation must constitute "a lasting worsening of the condition." In other words, there must be a worsening that not only existed at the time of separation, but one that still exists currently. Routen v. Brown, 10 Vet. App. 183, 189 (1997); Verdon v. Brown, 8 Vet. App. 529, 538 (1996). Conversely, temporary or intermittent flare-ups of a pre-existing injury or disease are insufficient to be considered "aggravation in service" unless the underlying condition, as contrasted with symptoms, has worsened. Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). If such an increase in severity is shown, it is presumed to have been aggravated absent clear and unmistakable evidence that the increase in disability is due to the natural progression of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). In this case, although hallux valgus was observed upon the Veteran's entry into active duty service, the evidence does not indicate that this condition worsened during her active duty service. Specifically, the service treatment records indicate that she complained of left leg, foot and toe pain in June 1987 that was relieved with rest. Upon examination, her gait was observed to be moderately antalgic, and there was also increased pain in the toe. However, the diagnosis at that time was limited to a deltoid ligament sprain or local tendonitis. Hallux valgus was not indicated as a possible contributor to her foot pain. At the time of her separation physical examination in December 1990, the Veteran complained of a history of "foot trouble." However, there was no indication of hallux valgus upon examination, nor was there any suggestion that her previously identified hallux valgus had worsened in severity. Additionally, none of the post-service treatment records suggest that the Veteran's hallux valgus worsened in severity. In fact, physical evaluations in August and September 2005 did not diagnose hallux valgus in the left foot at all. In addition to these outpatient evaluations, the Veteran has undergone VA examinations in August 2010 and October 2011 directed specifically toward this issue. At the VA examination in August 2010, she complained of foot pain, with the left foot being more painful than the right. She stated that she began to experience left foot pain while on active duty, characterized by swelling and the need for crutches. Significantly, she had no complaints about her bunions and that they did not affect her military training. Upon examination, including X-rays of the feet, the VA examiner diagnosed mild hallux valgus on the right foot and a normal left foot. At her second VA examination in October 2011, the VA examiner did not diagnose hallux valgus. Nevertheless, the examiner disputed that the hallux valgus observed at the time Veteran entered active duty service would not have been aggravated by active duty, as it is a developmental disorder. Overall, while the evidence reflects that hallux valgus was observed when she entered active duty service, there is no competent evidence to indicate that this disorder worsened in severity during such service, or even since she left active duty. In fact, at the VA examination in August 2010, she specifically denied that her hallux valgus was causing her current symptoms. Therefore, service connection is not warranted for this disorder. In arriving at this conclusion, the Board has also considered the statements made by the Veteran that her hallux valgus was aggravated during active duty. 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 v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). In this case, however, the Veteran is not competent to provide testimony regarding whether her hallux valgus was aggravated by active duty. See Jandreau, 492 F.3d at 1377, n.4. Because the progression of such disorders may not be assessed by unique and readily identifiable features, it does not involve a simple identification that a layperson is competent to make. Therefore, the unsubstantiated statements that her hallux valgus was aggravated by active duty are found to lack competency. Pes Planus and Plantar Fasciitis With regard to the Veteran's pes planus with symptoms of plantar fasciitis, the Board determines that service connection should be granted. It should be again emphasized that, while hallux valgus was observed when she entered active duty, there is no notation of pes planus. In the absence of clear and unmistakable evidence to the contrary, the Board must presume that this disorder was not present when she entered active duty. Next, the service treatment records do not reflect a diagnosis of either of these disorders. However, as was noted above, the Veteran did seek treatment in June 1987 for pain in her left leg and foot that was exacerbated by walking and was alleviated by rest. Upon examination, some edema and moderate tenderness was observed along the medial aspect of the foot. The Board recognizes that pes planus was not specifically diagnosed at the time of her separation physical examination in December 1990. However, she did complain of "foot trouble" on that occasion. Moreover, and significantly, when she underwent a VA examination in April 1992, she was diagnosed with bilateral pes planus. Given the fact that the Veteran was diagnosed by a VA examiner with pes planus so soon after leaving active duty, in conjunction with the fact that she did complain of foot pain in service, there is no basis to doubt the credibility of her statements that her currently diagnosed pes planus is at least in part attributable to her active duty service. In so concluding, the Board acknowledges that the evidence of record includes an October 2011 opinion by a VA examiner, who stated that it was less likely than not that the Veteran's pes planus was related to her active duty service. However, the rationale for this opinion was limited to the single comment that "[p]es planus is structural change." It is unclear what the VA examiner means by this, and the Board is unable to speculate on the examiner's intent. Moreover, there is no indication that the examiner noticed or discussed the April 1992 diagnosis of pes planus. Therefore, this examination is of very limited probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In light of the above discussion, the Board concludes that service connection for pes planus is warranted and the claim is granted to this extent. Moreover, the Board concludes that her plantar fasciitis is best considered part of her pes planus disorder. However, service connection is not warranted for hallux valgus, and this aspect of the appeal is denied. ORDER Service connection for hallux valgus is denied. Service connection for a bilateral foot disorder, characterized as pes planus and plantar fasciitis, is granted. ____________________________________________ MATTHEW D. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs