Citation Nr: 1307705 Decision Date: 03/07/13 Archive Date: 03/11/13 DOCKET NO. 08-36 679 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for a bilateral foot disability. ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from July 1981 to June 1987. This appeal to the Board of Veterans' Appeals (Board) arose from a June 2007 rating decision in which the RO denied the Veteran's claim for service connection for a bilateral foot condition. In a June 2008 notice of disagreement (NOD), the Veteran requested a hearing before a Decision Review Officer (DRO) but thereafter changed this request to one for a hearing before a Veterans Law Judge (VLJ) at the RO. Such a hearing was scheduled for July 2010, however, the hearing notification letter was returned by the U.S. Postal Service as undeliverable. Although the Veteran was rescheduled for another hearing in October 2010, she did not appear for this rescheduled hearing. Her hearing request is therefore deemed to be withdrawn. See 38 C.F.R. § 20.704(d) (2012). In April 2011 and July 2012, the Board, inter alia, remanded the claim for service connection for a bilateral foot disability for further action, to include additional development of the evidence. A review of the Virtual VA claims processing system reveals VA treatment records dated through December 2011; the March 2012 supplemental statement of the case (SSOC) notes review of the Veteran's claims file. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim on appeal have been accomplished. 2. Hammertoes were shown in service, and the competent opinion evidence on the question of whether the Veteran's current bilateral hammertoes and left bunion disabilities are etiologically related to service is, at least, in relative equipoise. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for a bilateral hammertoes and a left bunion are met. 38 U.S.C.A. §§ 1131, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Given the favorable disposition of the claim for service connection on appeal, the Board finds that all notification and development action needed to fairly adjudicate the claim has been accomplished. II. Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in line of duty. See 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder on a direct basis, there must be competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). See also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The determination as to whether elements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). A February 1981 service entrance examination was negative for any relevant abnormalities, and the Veteran denied foot trouble in an accompanying Report of Medical History (RMH). Corns were noted between the fourth and fifth digits of the left foot in July 1981 and in September 1982, while a corn was noted between the toes in September 1981. In October 1982, the Veteran underwent arthroplasty on the fifth toe of her left foot due to hammertoes. In August 1983, the Veteran complained of a callous on her left foot. A January 1984 treatment note reflects an assessment of tinea pedis with secondary infection in the left foot. Left plantar fasciitis was assessed in February 1986. In November 1986, the Veteran underwent a bilateral proximal metaphysectomy of the fourth and fifth toes and excision of the fifth toe extensor tendons due to a history of recurrent soft corns of the fourth and fifth interspaces. On April 1987 service discharge examination, the Veteran's feet were found to be normal. However, in an accompanying RMH, the Veteran reported foot trouble and the examiner noted that her feet had been surgically corrected for hammertoes in 1986. Post-service treatment records document the Veteran's continued complaints of foot pain. In October 2010, the Veteran underwent a bunionectomy, toe arthroplaty and a metatarsal head dorsiflexing wedge osteotomy due to bilateral hammertoes. Turning to the issue of whether the Veteran's current right and left foot disabilities were caused or aggravated by her service, the Board notes that the record contains a several etiological opinions which it must consider and weigh. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (stating that the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). However, when faced with conflicting medical opinions, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). The first of these opinions is reflected in the report of the December 2011 VA podiatry examination. That examiner noted that the Veteran had a number of documented foot concerns during service and that her service discharge examination found her feet to be normal. The examiner opined that the Veteran's current bilateral foot condition did not appear to be related to her in-service foot conditions as such conditions were treated during service (although the actual diagnoses for which this opinion was offered were not specified). The second of these opinions is reflected in a September 2012 VA foot Disability Benefits Questionnaire (DBQ). That examiner noted that the Veteran had an extensive history of multiple foot problems, including recurrent hammertoe deformities and bunions. The examiner also noted that multiple surgeries had been performed to address to the Veteran's hammertoes with no resolution and that the left bunionectomy had resulted in diminished functionality of the first metacarpophalangeal (MPJ). The examiner opined that as the Veteran's multiple foot problems were well-documented in the record and continued to progress since service, it was at least as likely as not that her bilateral hammertoes and left bunion were incurred in or caused by her service. Also of record is the report of the June 2007 VA podiatry examination, which includes a detailed history of the foot symptoms and surgeries, and which reflects various diagnoses; however, no etiological opinion was offered for any diagnosed disability. In addition, in the report of the August 2011 VA podiatry examination and the September 2011 addendum report, the examiner noted that he was unable to provide an etiological opinion as to the Veteran's bilateral foot condition. As these reports reflect no actual etiological opinion, they are considered as weighing neither for nor against the instant claim. In the instant case, the Board can find no reason to accord more probative weight to the December 2011 opinion or to the September 2012 opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the relevant inquiry when assessing the probative value of a medical opinion is whether the opinion reflects application of medical principles to an accurate and complete medical history). In this regard, both opinions were provided by qualified medical professionals. Moreover, each medical opinion reflects consideration of the fact that the Veteran has an in-service history of foot complaints, as well as a post-service history of treatment for foot disabilities. Additionally, each opinion does not simply state that there is a positive or negative nexus; each clinician explains the rationale for the opinion provided. In sum, the record contains an opinion indicating that the Veteran's current right and left foot disabilities, specifically, her bilateral hammertoes and left bunion, were incurred in or caused by her service. There is also one opinion suggesting that the Veteran's bilateral foot condition, which was not specified, was not related to her service. As the medical opinion evidence on the question of nexus between current foot disability and service is, essentially, in relative equipoise, the Board finds that such evidence, collectively, indicates that it is at least as likely as not that the Veteran's current right and left foot disability, specifically bilateral hammertoes and a left bunion, were incurred in or caused by service. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. See 38 C.F.R. § 3.102. See also 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Therefore, given the facts of this case, and resolving all reasonable doubt in the Veteran's favor, the Board concludes that the criteria for service connection for right and left foot disabilities-specifically, hammertoes and a left bunion-are met. ORDER Service connection for bilateral hammertoes and a left bunion is granted. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs