Citation Nr: 1306869 Decision Date: 02/28/13 Archive Date: 03/01/13 DOCKET NO. 10-41 285 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for a left foot disorder, to include as secondary to service-connected chondromalacia left knee chondromalacia. 2. Entitlement to service connection for a right heel disorder, to include as secondary to service-connected left knee chondromalacia. 3. Entitlement to an increased disability rating for service-connected right wrist tendonitis, current assigned a noncompensable evaluation from December 29, 2006, and a 10 percent disability evaluation from February 27, 2009. INTRODUCTION The Veteran had active service from June 1997 to August 1998 and from May 2004 to December 2006. This matter comes before the Board of Veteran's Appeals (Board) on appeal from February 2008 and September 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In the February 2008 rating decision, the RO granted service connection for right wrist tendonitis and assigned a noncompensable evaluation effective from December 29, 2006. In the September 2009 rating decision, the RO denied service connection for a left disorder and a right foot disorder. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The issue of an increased disability rating for service-connected right wrist tendonitis is addressed in the REMAND section below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. FINDINGS OF FACT 1. The Veteran does not have a current left foot disorder that manifested in service or that is otherwise related to his military service, to include his service-connected left knee chondromalacia. 2. The Veteran does not have a current right heel disorder that manifested in service or that is otherwise related to his military service, to include his service-connected left knee chondromalacia. CONCLUSIONS OF LAW 1. A left foot disorder was not incurred in active service and is not proximately due to, the result of, or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). 2. A right heel disorder was not incurred in active service and is not proximately due to, the result of, or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and, (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, the RO sent the Veteran a notice letter in July 2009 prior to the initial adjudication of his claims for service connection for a left foot disorder and a right heel disorder in a September 2009 rating decision. The letter informed him of the evidence necessary to substantiate his claims for service connection and advised him of the division of responsibilities in obtaining such evidence. The letter also explained how disability ratings and effective dates are determined. Therefore, the Board finds that the Veteran was provided adequate notice in connection with the claims being decided herein. VA has also assisted the appellant in obtaining evidence, afforded the appellant physical examinations, and obtained adequate medical opinions as to the etiology of the claimed disabilities. The information and evidence that has been associated with the claims file includes the Veteran's service treatment records from his second period of active service, post-service VA treatment records, records of VA medical evaluations for the claimed disabilities, and the Veteran's personal statements. The RO has been unable to obtain service treatment records from the Veteran's first period of active service in 1997 and 1998, despite multiple requests to the Records Management Center (RMC), the Mississippi Military Department, and the Mississippi Army National Guard. In addition, the RO determined that Social Security Administration (SSA) records pertaining to the Veteran do not exist or are unavailable. When records in the possession of the government cannot be located, VA has a responsibility to continue to search for such records until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified by each Federal department or agency from whom they are sought. 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c)(2)(3). The RO's efforts to assist the Veteran in this regard are documented in the claims file, and the Board finds that any additional attempts would be futile. The Board recognizes that when such records are presumed to have been destroyed or lost, VA has a heightened obligation to assist the Veteran in the development of his case. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The case law does not, however, lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (the Court declined to apply an "adverse presumption" where records have been lost or destroyed while in Government control which would have required VA to disprove a claimant's allegation of injury or disease in service in these particular cases). In addition, the Veteran was afforded VA examinations in April 2007 and March 2012. The Board finds that these examinations were adequate because each examination was performed by a medical professional and was based on a thorough examination, including a review of the record and history as well as the symptomatology provided by the Veteran. Each examiner reported pertinent findings, offered relevant medical opinions, and provided supporting reasons for the medical opinions. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008); see Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). For these reasons, the Board finds that VA has substantially complied with the notice and assistance requirements and that the appellant is not prejudiced by a decision on the claims at this time. Service Connection Laws and Regulations Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 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). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006; however, the new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 71 Fed. Reg. 52744 -47 (Sept. 7, 2006). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995). In the present case, the Veteran is seeking service connection for left foot and right heel disorders, which he contends result from his service-connected left knee chondromalacia. The Board notes that service connection is already in effect for left ankle disability, and service connection for a right foot disorder was denied by a rating decision in February 2008. However, the Veteran has stated that the claimed disorders on appeal are distinct from those disorders that have previously been considered. The available service treatment records reflect that the Veteran complained of bilateral leg and foot pain in March 2006. Although his feet were normal on examination, he was referred for physical therapy. The record contains no other complaints, treatment, or diagnosis in service that pertain to the Veteran's left foot or right heel. Although the Veteran indicated that he had a history of "foot trouble" during his October 2006 separation physical examination, he clarified that the specific problem was stiffness and weakness in his ankles. No left foot or right heel disorders were noted on that examination. The Veteran was afforded a VA orthopedic evaluation in April 2007 during which he stated that he seldom had foot pain. He ranked the pain as 0 out of 10, with flares to 6 out of 10 occurring one or two times per month. He reported that he awoke with the pain, which was also associated with his left ankle disability, and that he was required to stretch for a few minutes to relieve the pain. He did not use pain medications, special footwear, or arch supports. On examination, the Veteran's balance and gait were normal. He was able to stand on his toes and heels and walk on both of them. His rising on toes and heels was also within normal limits. There was no skin or vascular changes and no evidence of abnormal calluses or breakdown. In addition, there was no limitation of standing or walking, no evidence of pain with motion, and no edema or weakness. Range of motion was normal in all toes, and the arches of both feet were within normal limits. There was no pain or tenderness along the tensor fascia, and both heel cords were normal without pain to palpation or pressure. On x-ray, the metatarsophalangeal and interphalangeal joints were well preserved bilaterally, as well as the mid tarsal and subtalar joints. A small osteophyte was seen at the attachment of the tendo Achilles bilaterally. The examiner diagnosed the Veteran with a status post strain and sprain of both feet. VA outpatient treatment records dated between February 2007 and January 2010 do not reflect any complaints, treatment, or diagnosis of left foot or right heel disorders. The Veteran was afforded a VA examination of his feet in March 2012 during which he reported that his foot pain began two to three years earlier. He stated that his left foot had pain along the dorsum of midfoot and that he experienced heel pain when walking, in the right more than the left. He described pain at 3 out of 10 and stated that it feels like his foot will "break off." The Veteran stated that he could not walk more than a quarter of a mile without aggravating his foot pain. On examination, there was bilateral mild tenderness to palpation along the medial arch and the medial plantar heel. Sensation and muscle strength were normal, and heel-toe gait was non-antalgic. X-rays of the feet were normal, and the examiner stated that the Veteran does not have any diagnosis in his feet that is likely caused by a service-connected condition. He noted that the Veteran had a plantar fascial sprain/strain without meeting all symptoms associated with plantar fasciitis. He stated that the Veteran's pain pattern indicated chronic sprain/strain. The examiner reviewed the claims file and concluded that the claimed conditions are less likely than not related to the service-connected left knee condition because there is "no hard data to support the belief that favoring one leg adversely affects the other." He stated that the pain is likely chronic plantar fascial pain associated with hyperpronation and not related to the service-connected condition. After carefully reviewing the relevant evidence, the Board concludes that service connection for the Veteran's claimed left foot and right heel conditions is not warranted. Although the Veteran reported one incident of foot pain in service, no chronic left foot disability, other than an ankle strain, was noted at separation. Thus, the condition had apparently resolved by the time of separation. Furthermore, the Veteran does not contend that his claimed left foot and right heel disorders manifested in service or have existed continuously since service. In fact, during the April 2007 VA examination, he denied having frequent foot pain, and during the March 2012 VA examination, he stated that the pain had begun only two to three years earlier. Thus, the Veteran does not contend and the evidence does not show that the Veteran has a chronic left foot or right heel disorder that began during service or immediately thereafter. Moreover, he has not claimed that the disorders are related to any evident, disease, or injury in service, as he instead asserts that the disorders are related to his service-connected left knee disability. Accordingly, service connection for the claimed disorders is not warranted on a direct basis. In addition, the evidence does not show that the claimed left foot and right heel disorders are related to the Veteran's service-connected left knee chondromalacia. The March 2012 VA examiner reviewed the record and conducted a thorough examination after which he concluded that there is no evidence that either the Veteran's left foot or right heel is adversely affected by his left knee disability. In fact, nothing in the record, other than the Veteran's own statements, suggests that his claimed left foot and right heel disorders are related to his knee disability. The Veteran is certainly competent to describe the symptoms he has experienced that are capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). Furthermore, lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, even assuming that the Veteran is competent and credible to provide such an opinion, such evidence would be outweighed by the more probative opinion of the March 2012 VA examiner, who is a medical physician that provided an opinion based on a review of the claims with a supporting rationale. In summary, the most probative evidence of record demonstrates that the Veteran did not develop a chronic left foot or right heel disorder in service or for many years thereafter and that the claimed disorders are not causally related to his military service, including his service-connected left knee chondromalacia. Accordingly, the claims for service connection for a left foot and a right heel disorder must be denied. ORDER Service connection for a left foot disorder, to include as secondary to service-connected left knee chondromalacia, is denied. Service connection for a right heel disorder, to include as secondary to service-connected left knee chondromalacia, is denied. REMAND In a February 2008 rating decision, the RO granted service connection for right wrist tendonitis and assigned a noncompensable rating effective from December 29, 2006. In March 2006, the Veteran filed a notice of disagreement with the assigned rating, and the RO issued a statement of the case (SOC) in August 2008 continuing that evaluation. In September 2008, the Veteran submitted a substantive appeal and indicated that he wanted a hearing before the Board at the RO. On the substantive appeal form, the Veteran also made reference to claims that were not then on appeal. The RO interpreted the form as a new claim and did not recognize it as a substantive appeal. However, the Veteran repeated his claim for an increased rating for his right wrist disability in February 2009. In response, the RO adjudicated a new claim for the right wrist disability and granted an increased rating of 10 percent effective from February 27, 2009. The Board finds that, although new claims were raised for the first time on the September 2008 substantive appeal form, that form was also a valid and timely substantive appeal as to the issue of an increased rating for right wrist tendonitis. Further, the Veteran's reiteration of his claim for an increased rating for his right wrist disability in February 2009 confirms that he was not satisfied with the original decision and did not intend to terminate his appeal. The RO subsequently granted an increased rating for right wrist tendonitis; however, a Veteran will be presumed to be seeking the maximum rating allowable unless otherwise specified. AB v. Brown, 6 Vet. App. 35, 38 (1993). Thus, the Veteran's appeal for an increased rating for right wrist tendonitis remains on appeal. As previously noted, the Veteran indicated in his September 2008 substantive appeal that he wanted a hearing before the Board at the RO, which has not yet been held. The failure to afford the Veteran a hearing would amount to a denial of due process. See 38 C.F.R. § 20.904(a)(3) (2012). Therefore, a remand is required to the schedule the Veteran for a travel board hearing at the RO in Jackson, Mississippi. The RO should notify the Veteran of the date and time of the hearing, in accordance with 38 C.F.R. § 20.704(b) (2012). Accordingly, the claim is remanded for the following action: The RO should take appropriate steps to schedule the Veteran for a hearing with a Veterans Law Judge of the Board at the local office in accordance with his request. The Veteran should be notified in writing of the date, time, and location of the hearing. After the hearing is conducted, or if the Veteran withdraws the hearing request or fails to report for the scheduled hearing, the claims file should be returned to the Board in accordance with appellate procedures. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs