Citation Nr: 1307297 Decision Date: 03/04/13 Archive Date: 03/11/13 DOCKET NO. 07-23 204 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUES 1. Entitlement to service connection for a left foot disability. 2. Entitlement to service connection a right foot disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B. Berry, Counsel INTRODUCTION The Veteran served on active duty from September 1973 to November 1973. These matters come to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in October 2005 by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Veteran testified during a hearing before the undersigned Veterans Law Judge in June 2011. A transcript of the hearing is of record. The Board remanded these issues in October 2011 for further development. After accomplishing the requested actions to the extent possible, the RO continued the denial of the claims in the August 2012 supplemental statement of the case (SSOC) and returned these matters to the Board for further appellate consideration. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran's current left foot disability is not related to active military service. 2. The preponderance of the evidence shows that the Veteran's current right foot disability is not related to active military service. CONCLUSIONS OF LAW 1. A left foot disorder was not incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. A right foot disorder was not incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance The Veterans Claims Assistance Act of 2000 (VCAA) imposes a duty on the United States Department of Veterans Affairs (VA) to notify and assist a claimant in developing a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and 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 C.F.R. § 3.159(b). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). With regard to claims for service connection for a disability, the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of the claim: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Thus, upon receipt of an application for a service-connection claim, VA must review the information and the evidence presented with the claim and provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application including notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. After careful review of the claims folder, the Board finds that letters dated in August 2005 and August 2009 satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Specifically, letters advised the Veteran what information and evidence was needed to substantiate his service connection claims for a bilateral foot disability. The letters also requested that the Veteran provide enough information for the RO to request records from any sources of information and evidence identified by the Veteran, as well as what information and evidence would be obtained by VA, namely, records like medical records, employment records and records from other Federal agencies. The August 2009 letter notified the Veteran of how VA will determine the disability rating and effective date if his claim is granted. The August 2005 letter satisfied most of the duty to notify provisions prior to the initial AOJ decision. However, the August 2009 letter satisfied the duty to notify provision with respect to the right foot and how VA determines disability ratings and effective dates subsequent to the initial AOJ decision. The Board finds that this timing error was not prejudicial to the Veteran because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the Veteran been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the AOJ also readjudicated the case by way of the supplemental statement of the case issued in April 2011 after the notice was provided. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). The Veteran will not be prejudiced by the Board proceeding to decide his claim, as the timing error did not affect the essential fairness of the adjudication. Regarding VA's duty to assist, the Board finds that VA has fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The claims file contains the Veteran's service treatment records, VA treatment records, VA examinations dated in March 2011 and November 2011 and a transcript of the June 2011 Board hearing. The November 2011 VA examination report reflects that the examiner conducted a review of the Veteran's claims file in addition to obtaining an oral history from the Veteran and evaluating the Veteran. She discussed the relevant evidence of record and documented the results of the physical evaluation. Following the above, the examiner provided a diagnosis and a nexus opinion with supporting rationale, which appears to be based on the evidence of record. As such, the Board finds the November 2011 VA examination is adequate for rating purposes. In addition, as noted in the Introduction, these claims were previously remanded in October 2011 in order to obtain VA treatment records, obtain any outstanding Social Security disability records and to provide the Veteran with another VA examination and opinion. The claims file contains VA treatment records from the American Lake, Puget Sound and Seattle VA Medical Centers (VAMC) from February 2005 to March 2007 and from the VAMC in Fargo from April 2010 to June 2011. The Social Security Administration informed VA in October 2011 that the agency could not send the medical records requested as the medical records do not exist and any further efforts to obtain them will be futile. VA notified the Veteran in December 2011 that it was unable to obtain his Social Security disability records. The record contains a November 2011 VA examination report that answers the questions raised by the Board and it was supported by an explanation. Accordingly, the Board finds that there has been substantial compliance with the October 2011 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Moreover, the claims file contains the Veteran's statements in support of his claims. The Veteran has not identified, and the record does not otherwise indicate, any existing, pertinent evidence that has not been obtained. The record also presents no basis for further development to create any additional evidence to be considered in connection with the matters currently under consideration. Under these circumstances, the Board finds that the Veteran is not prejudiced by appellate consideration of the claims on appeal at this juncture, without directing or accomplishing any additional notification and/or development action. II. Merits of the Claim for Service Connection The Veteran contends that his current bilateral foot disabilities are related to active military service. Specifically, he asserts that his current right foot disability is related to the documented in-service Morton's neuroma of the right foot and its treatment with multiple steroid injections. The Veteran claims that he also received injections in his left foot during military service and his current left foot disability is related to those injections. He asserts that he has had recurrent foot pain since military service. Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology for specific chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, No. 11-7184 (Fed. Cir. Feb. 21, 2013); Barr v. Nicholson, 21 Vet. App. 303 (2007). Continuity of symptomatology can be demonstrated by showing (1) that a condition was "noted" during service; (2) evidence of continuous symptoms after service; and (3) medical, or in certain circumstances, lay evidence of a nexus between the current disability and the postservice symptoms. Savage v. Gober, 10 Vet. App. 488 (1997). In assessing whether the Veteran is entitled to service connection for a bilateral foot disability, the evidence of record must show that the Veteran currently has that disability. The Board observes a VA treatment record dated in December 2005 shows that the Veteran has a diagnosis of neuroma of the third intermetatarsal space of the left foot. A November 2011 VA examination diagnosed the Veteran with bilateral metatarsalgia. Thus, the medical evidence of record shows that the Veteran has a current diagnosis of a bilateral foot disability. As an initial matter, the Board observes that the Veteran indicated in a July 1973 report of medical history as part of his induction examination that he had a history of broken bones. The physician elaborated that the Veteran reported that he had a fracture of the right foot with no sequelae. The July 1973 examination did not note any residuals from the fracture of the right foot and his feet were evaluated as normal. VA law provides that a Veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C.A. § 1111, 1132, 1137. The presumption of soundness attaches only where there has been an induction examination during which the disability about which the Veteran later complains was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulations provide expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. at (b)(1). In essence, when no preexisting condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service. VAOPGCPREC 3-2003; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The Veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. Id. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. 38 U.S.C.A. § 1153. If this burden is met, then the Veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness under section 1111, the Veteran's claim is one for service connection. This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded. See 38 C.F.R. § 3.322. On the other hand, if a preexisting disorder is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disorder, but the Veteran may bring a claim for service-connected aggravation of that disorder. In that case, section 1153 applies and the burden falls on the Veteran to establish aggravation. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If the presumption of aggravation under section 1153 arises, the burden shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease." 38 U.S.C.A. § 1153; see also 38 C.F.R. § 3.306; Jensen, 19 F.3d at 1417; Wagner, 370 F.3d at 1096. As discussed above, the Veteran reported a history of right foot fracture with no sequelae and the July 1973 enlistment examination reveals that the Veteran's feet were evaluated as normal. The Board notes that under 38. C.F.R. § 3.303(c) that a notation or discovery of healed fractures in service with no evidence of the pertinent antecedent active disease or injury during service the conclusion must be that it preexisted service. In this case, there is no evidence of a diagnosis of a healed right foot fracture in service or any treatment that was related residuals of a right foot fracture during military service. Therefore, the Board concludes that 38. C.F.R. § 3.303(c) does not apply to this situation. Accordingly, a healed right foot fracture was not noted upon entry into service; and, therefore, the Veteran is presumed to have been sound upon entry. As the presumption of soundness applies, the burden shifts to the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service. In general, lay statements by a veteran concerning a preexisting condition are not sufficient to rebut the presumption of soundness. See e.g., Gahman v. West, 13 Vet. App. 148, 150 (1999) (recorded history provided by a lay witness does not constitute competent medical evidence sufficient to overcome the presumption of soundness, even when such is recorded by medical examiners); Crowe v. Brown, 7 Vet. App. 238 (1994) (supporting medical evidence is needed to establish the presence of a preexisting condition). Although the presumption of soundness on entrance cannot be overcome simply based on the representations of the Veteran during the entrance examination or thereafter such statements considered with all other material evidence will be considered in making a determination as to inception. See Miller v. West, 11 Vet. App. 345 (1998) and 38 C.F.R. § 3.304(b)(1). In this case, the Veteran also has reported a history of a fracture to the right foot in 1968 during the November 2011 VA examination. Furthermore, a June 2005 VA treatment record that was based on X-rays conducted in February 2005 and an MRI conducted in May 2011 show that there was evidence of an old healed fracture of the fifth metatarsal. The Board finds that the X-ray and MRI evidence of an old healed fracture is consistent with the Veteran's lay statements of a fracture of the right foot prior to service; however, this evidence together does not show that it was obvious or manifest that the Veteran had a right fracture disability prior to service. Accordingly, the Board finds that the current evidence of record does not rebut the presumption of soundness and the Veteran's service connection claim for a right foot disability is treated as one for service connection. A review of the Veteran's service treatment records show that the Veteran complained of "painful nerve" in the right foot in October 1973. He explained that the pain becomes severe when he stands for long periods of time. The clinician's impression was Morton's neuroma and there was an indication that it was treated with an unspecified injection. The Veteran complained again of a pinched nerve in the right foot four days after the initial complaint. There was no indication of treatment or diagnosis. A notation in the service record dated one day later in October 1973 reveals that the Veteran refused surgery and it was determined that he was unfit for duty and he was referred to the Medical Board. This notation did not specify whether it was due the large right inguinal hernia diagnosed in service or his right foot disability. The Veteran was medically discharged from the military in November 1973, approximately two months after he entered service and it appears that the Veteran was not provided with a separation examination. Although there is evidence of a right foot disorder in service, the competent and credible evidence does not show that the Veteran's current bilateral feet disability is related to his active military service. The first post-service medical evidence of record that show complaints of or treatment for a foot problem was in February 2005, approximately 32 years after military service. A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service that resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board observes that the Veteran testified that he had recurrent feet pain since military service and that it has become worse over time. See Hearing Transcript at 6. As noted above, the Veteran is competent to report observable symptoms, such as pain in his feet. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (lay testimony iterating knowledge and personal observations of witness are competent to prove that claimant exhibited certain symptoms at particular time following service). Therefore, the Veteran's statements that bilateral foot pain began during service and has continued intermittently since service is competent evidence tending to show chronicity and continuity. Nonetheless, the Board finds that the Veteran's statements are not credible as they are inconsistent with other evidence of record. In this respect, the Veteran has provided conflicting statements. A November 2005 VA treatment record reveals that the Veteran reported that he had left foot pain off and on since 1997. During the March 2011 and November 2011 VA examinations, the Veteran reported that after treatment of his right foot in service, it felt fine until approximately 1997. In addition, the first reference to any pain in his feet in the post service medical record is not shown until 2005. Accordingly, the Board finds that the Veteran's assertions regarding chronicity and continuity of symptomatology of a bilateral foot disorder since service are not credible. Additionally, the Veteran has not been diagnosed with Morton's neuroma of the right foot at any time during the current appeal period and the Morton's neuroma of the right foot that was diagnosed during active military service is not listed as a chronic disease under VA regulations. See38 C.F.R. § 3.309(a) (2012). Therefore, utilizing continuity of symptomatology in an effort to establish the second and third elements under 38 C.F.R. § 3.303(b) does not apply in this case. See Walker v. Shinseki, No. 11-7184 (Fed. Cir. Feb. 21, 2013) (holding that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a)). Furthermore, the VA examiner in November 2011 provided the opinion that it was less likely than not that the Veteran's current bilateral foot disorder is caused by the treatment with steroids of the Morton's neuroma in service. She explained that there is no evidence in his service record of multiple injections and therefore she cannot conclude that his current right foot disorder was caused by or aggravated by the one injection, which is possibly a steroid, without resorting to speculation. The examiner further noted that it is unlikely that the Veteran would have been treated with multiple steroid injections in a short period of time on a regular basis, as alleged by the Veteran, as that is not the standard treatment. She also explained that the Veteran mentioned that his current symptoms basically started in the 1997 time frame and he was out of service for more than twenty years at that point. With respect to the left foot, the examiner noted that there is no specific evidence that he was treated for a left foot condition in service. The only evidence in the service record was treatment in 1973 with an injection to the right foot and to follow up in a few weeks for foot pain. Given his short service history, it is unlikely that sprinting for a two month period would result in a permanent left foot condition. As the examiner's opinion is based on a clear rationale after she reviewed the claims file, obtained a history from the Veteran, and conducted a physical evaluation, the Board finds this opinion to be highly probative. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). The Board notes that a VA treatment record dated in February 2005 indicates that a physician assistant determined that the Veteran's bilateral foot disorder may be representing a neuroma or potential bony abnormality/ligamentous abnormality due to superfluous treatment of corticosteroids approximately three decades ago. This opinion is speculative and inconclusive as the physician assistant prefaced his opinion with the word "may" without any other supporting data or evidence. See Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009) (statement that tumor "may well be" connected to Agent Orange exposure was speculative); Bloom v. West, 12 Vet. App. 185, 187 (1999) (term "could" without other rationale or supporting data was speculative); Goss v. Brown, 9 Vet. App. 109, 114 (1996); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (medical evidence which merely indicates that the alleged disorder "may or may not" exist or "may or may not" be related, is too speculative to establish the presence of the claimed disorder or any such relationship). A medical opinion that is speculative, general or inconclusive in nature cannot support a claim. Obert v. Brown, 5 Vet. App. 30, 33 (1993). Accordingly, the Board concludes that this opinion is not probative on the issue of whether the Veteran's current bilateral foot disability is related to active military service. The Board notes that the Veteran contends that his bilateral foot disorder is related to military service to include numerous steroid shots in service. The Veteran is competent as a lay person to report the onset of symptoms and the circumstances surrounding such. See Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991). However, the Veteran is not competent to provide an opinion on a complex question such as the etiology of his metatarsalgia. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). The Veteran is not a qualified health care professional; therefore, the lay evidence offered by the Veteran is not competent medical evidence and does not prove a relationship between the Veteran's current bilateral foot disability and military service. Based on the evidence discussed above, the Board finds that the preponderance of the evidence is against the claims and the benefit of the doubt rule is not for application. See Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001); see also 38 U.S.C.A. § 5107. Accordingly, entitlement to service connection for a bilateral foot disability is not warranted. ORDER 1. Entitlement to service connection for a left foot disability is denied. 2. Entitlement to service connection a right foot disability is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs