Citation Nr: 1306765 Decision Date: 02/27/13 Archive Date: 03/01/13 DOCKET NO. 99-04 996 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama THE ISSUE Entitlement to service connection for a right foot disability, to include as secondary to service-connected degenerative lumbar spine with herniated nucleus pulposus. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The Veteran served on active duty from November 1971 to November 1973 and from November 1990 to July 1991. The latter period of service includes service in the Persian Gulf from January 6, 1991 to June 15, 1991. The Veteran also had periods of active duty for training when he was in the Alabama National Guard. In June 2006, the Veteran testified at a hearing before a decision review officer (DRO) at the RO. A transcript of the hearing has been associated with the record. This matter was remanded to the RO on several occasions to include in June 2012. The requested action has been accomplished satisfactorily, and the Board concludes that it may proceed with a decision at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand 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 (Fed. Cir. 2002). FINDING OF FACT Weak foot is shown to be the proximate result of the Veteran's service-connected low back disability. CONCLUSION OF LAW Weak foot is secondary to a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by 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 and 3.326(a) (2012). In this case, the Board is granting in full the benefit sought on appeal. 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 will not be further discussed. Standard of Review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (reasonable doubt to be resolved in veteran's favor). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Law and Regulations 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. § 1110; 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. 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). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as arthritis, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). 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 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. Layno, 6 Vet. App. 465. The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Medical evidence that is speculative, general or inconclusive in nature cannot support a claim. Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). A physician's statement framed in terms such as "may" or "could" is not probative. Warren v. Brown, 6 Vet. App. 4, 6 (1993). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). The Board has reviewed all 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 the evidence submitted by a veteran or obtained on a veteran's behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Factual Background The service treatment records reflect complaints of right foot pain after an injury incurred playing basketball in June 1982. A right foot X-ray study conducted that month indicated no evidence of a bone injury. In all of the reports of medical history completed by the Veteran both before and after June 1982, to include as late as May 1996, he denied foot trouble. In the corresponding medical examination reports, to include in May 1996, the Veteran's feet were found to be normal. In October 2000, the Veteran had a small exostosis removed from the dorsum of his right foot. In March 2003, the Veteran again underwent an exostectomy of the dorsal aspect of the right foot. In the days and weeks following surgery, the Veteran complained of right foot pain. That month, he filed his claim of service connection for a right foot disability. In January 2004, the Veteran sought treatment for the right foot complaining of painful paresthesias. There was right great toe numbness, and right ankle limitation of motion. A probable injury to the nerve innervating the right great toe was assessed. In May 2006, the Veteran sought treatment for his feet complaining of burning pain for the past five years. Onychomycosis was assessed. At his June 2006 DRO hearing, the Veteran testified that he had right foot problems since the right foot injury in service. The Board notes that the hearing testimony reflects memory lapses and an inability to recall details regarding the claimed disability, etc. In July 2006, the Veteran sought treatment for right foot pain. The examiner observed right foot scar tissue. The diagnosis was of right foot nerve entrapment. In August 2006, the Veteran again presented with complaints of right foot pain. The diagnosis was of nerve entrapment, painful cicatrix, and onychomycosis. In November 2009, the Veteran underwent a VA medical examination. The Veteran reported some aching pain in the right foot ever since the in-service injury but indicated that he did not seek treatment. On objective examination, there was right foot tenderness with a scar. There was no abnormal shoe wear and no skin or vascular changes. There was no evidence of hallux valgus. The examiner diagnosed post-operative dysesthesia of the right foot and determined, based on a review of the record and examination of the Veteran, that the June 1982 right foot injury was acute and totally resolved and that almost two decades later, a small exostosis was removed from the dorsum of the right foot on two occasions. The examiner opined that there was not sufficient documentation to relate the June 1982 right foot injury to the present right foot complaints and that the present complaints were likely related to neuritis resulting from surgery or from the service-connected low back disability. However, the examiner emphasized that there was no way to relate the present disability to service. A December 2010 VA examination report reflects that an X-ray study showed mild degenerative osteophyte formation. The examiner diagnosed tarsometatarsal degenerative arthrosis of the right foot and opined that it was not likely due to the service-connected low back disability or to the single right foot injury noted in the service treatment records. The examiner did not offer a rationale for his opinion. In June 2012, the Veteran underwent another VA examination. At that time, a VA examiner opined that a right foot disability was not related to or aggravated by the service-connected low back disability. The examiner indicated that it was his opinion that the right foot disability was due to the normal progression the right foot condition. A second June 2012 VA medical examination report indicates a diagnosis of right foot osteoarthritis. Right metatarsalgia was also noted as was bilateral weak foot. The examiner opined that the weak foot was due to lumbar spinal stenosis and severe lumbar radiculopathy. Testing also revealed the possibility of right foot gout. The examiner indicated that she could not opine regarding the origins of the right foot disability because right foot and low back symptoms overlapped to a degree that interfered with an adequate foot evaluation. The lumbar radiculopathy was causing significant symptoms extending to the foot. Thus, an adequate right foot examination was not possible. The examiner also noted that the Veteran's possible right foot gout could account for his right foot symptomatology. Discussion As stated, the Veteran contends that he has a current right foot disability that is related to a right foot injury that took place in service in June 1982. At the outset, the Board concludes that direct service connection for a right foot disability is not warranted. 38 C.F.R. § 3.303. Service connection is granted for chronic disabilities, and the competent and probative medical evidence, which is contained in the November 2009 VA examination report, indicates that the in-service right foot injury resolved. The Veteran now contends that right foot symptoms have been continuous since the June 1982 injury. The Board does not find his assertions of continuity of symptomatology credible for a variety of reasons. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the duty to assess the credibility and weight to be given to the evidence). First, the Board emphasizes that the Veteran expressly denied foot trouble in all of the reports of medical history he completed after June 1982. The last such report is dated in 1996. Thus, for some 14 years after the in-service right foot injury, the Veteran denied foot trouble of any sort. In addition, no right foot disability was found during any in-service medical examination dated later June 1982 to include in 1996. Also weighing against a finding of a direct relationship to service to include continuity of symptomatology is the Veteran's June 2006 hearing testimony in which memory lapses were apparent. The Veteran's inability to recall details of his injury and subsequent events leads the Board to doubt his assertions regarding continuity of symptomatology. See Caluza, supra. Finally, the Board observes that the Veteran is not shown to be competent to opine regarding the origins of a present right foot disability. "Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, a right foot disability consisting of various diagnoses, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer)." Because the entirety of the credible, competent, and probative medical evidence indicates that a right foot disability is unrelated to service and because there is no competent and credible evidence to the contrary, to include credible evidence of continuity of symptomatology, service connection for the claimed right foot disability on a direct basis is denied. 38 C.F.R. § 3.303. The Board notes that to the extent that the Veteran suffers from an arthritic disability of the right foot, such disability did not manifest in the first post-service year. An arthritic disability of the right foot was not diagnosed until after the turn of the Millennium and, consequently, many years after service separation. Because an arthritic disability of the right foot did not manifest in the first post-service year, service connection for an arthritic right foot disability is not available on a presumptive basis. 38 C.F.R. §§ 3.307, 3.309(a). Next, the Board will examine whether service connection for a right foot disability is warranted on a secondary basis. 38 C.F.R. § 3.310. As the evidence reflects, various diagnoses have been associated with the Veteran's right foot. There is nerve impingement as well as other surgical residuals, degenerative osteophytes, onychomycosis, and possible gout. These have not been associated with service, and there is no competent and credible evidence that associates these right foot manifestations with the service-connected low back disability. Indeed, the Veteran's arguments, whether competent or not, rest upon the theory of direct service connection. In addition to the foregoing diagnoses, the Veteran has a diagnosis of bilateral weak foot, and a June 2012 VA examiner indicated that this was due to the Veteran's service-connected low back disability. The Board recognizes that the examiner also stated that it was not possible to distinguish between symptomatology associated with the low back and that attributable to the right foot. In such cases, reasonable doubt must be resolved in the appellant's favor. See, e.g., Mittleider v. West, 11 Vet. App. 181 (1998). In any event, the examiner's opinion is somewhat equivocal in that weak foot was attributed to the service-connected low back disability but later in the report, the examiner concluded that an association between a current right foot disability and the service-connected low back disability could not be rendered. Resolving reasonable doubt in the Veteran's favor, however, bilateral weak foot is the proximate result of the service-connected low back disability, and service connection for that disability is warranted on a secondary basis. 38 C.F.R. § 3.310; see also 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for weak foot is granted. ____________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs