Citation Nr: 1308118 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 07-24 236 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for flat feet. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD N. J. Nardone, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1962 to September 1965. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio (RO). This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). FINDING OF FACT Flat feet are not related to the Veteran's active military service. CONCLUSION OF LAW Flat feet were not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Proper notice from VA must inform the claimant of any information and 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The RO's March 2005 and June 2005 letters advised the Veteran of the foregoing elements of the notice requirements. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims, to include the opportunity to present pertinent evidence. Thus, the Board finds that the Veteran has actual knowledge of the information needed to substantiate his claim, and a reasonable person could be expected to understand what was needed. See Dalton v. Nicholson, 21 Vet. App. 23, 34 (2007) (holding that notice error was not prejudicial because the appellant demonstrated actual knowledge of the information and evidence necessary to substantiate his claim by way of the arguments made to the RO); see also Overton v. Nicholson, 20 Vet. App. 427, 438 (2006) (noting that representation is a factor that must be considered when determining whether that appellant has been prejudiced by a notice error). Accordingly, the Board finds no prejudice to the Veteran in proceeding with the issuance of a final decision. In addition, the duty to assist the Veteran has been satisfied in this case. The Veteran's service treatment records, as well as identified private and VA medical treatment records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Pursuant to the Board's December 2010, April 2012, and October 2012 remands, the Veteran was also provided with VA examinations in January 2011, May 2012, and December 2012 in conjunction with the claim on appeal. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159; see McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The December 2012 medical examination was adequate, as it was based upon a complete review of the evidence of record, consideration of the Veteran's lay statements, and clinical examination of the Veteran. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The examiner provided an opinion as to the etiology of the Veteran's flat feet. In this regard, there has been substantial compliance with its prior remands as the RO provided the Veteran with an adequate VA examination. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. 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 the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d). Generally, in order to establish service connection for the claimed disorder, there must be (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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In certain circumstances, lay evidence may also be competent to establish a medical diagnosis or medical etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The determination as to whether these requirements 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). The Veteran is seeking service connection for flat feet. He claims that the onset of this disorder was during his military service. Specifically, he contends that during his basic military training at Fort Knox, he started experiencing discomfort in his feet, for which he used rolled-up socks or rags under his arches to relieve pressure. He further contends that he has continued to experience the same problem since military service. The service treatment records are negative for any complaints, findings, or treatment of flat feet. During the August 1965 separation examination, the Veteran denied a history of foot trouble, and the feet were clinically evaluated as normal at that time. In September 2006, the Veteran submitted statements from several members of his family and a longtime friend in support of a claim for service connection for a skin disorder. These individuals indicated that they witnessed the Veteran experience pain and discomfort in his feet and face continuously since service. In September 2006, the Veteran testified before the RO that his flat feet began to bother him during basic training at Fort Knox when marching. Men showed him how to roll up a sock or rag and put it under the arches of his feet, which he did to relieve the pressure during basic training. The Veteran said that he did not want to complain about anything because he wanted to do everything he could to stay in the service. The Veteran said that the disorder continued and he would treat the disorder with arch supports and "other things." He stated that he first sought treatment for his flat feet about three months after discharge from service, but that the physician he saw was now deceased. The evidence of records includes VA and private medical records beginning in 1999. Although the Veteran was treated and hospitalized for skin disorders on his feet to include tinea pedis, mycosis, and cellulitis, as well as treatment for gout in his feet, there are no complaints reported or findings on multiple examinations of the feet for flat feet. The first evidence of flat feet was on VA examination in January 2011, during which the claims file was reviewed. The examining orthopedist noted that there was no documentation of any flat foot problem, injuries, or other foot problems in service. The Veteran reported that he had foot pain in service and took care of it himself. The Veteran said that over the years he has had a flat foot pain. He stated his feet ached, and were sore and tender, with occasional callouses over the bottom of the feet. The Veteran reported that he used some shoe inserts. Examination of both feet revealed pes planus, and callus on the bottom of the left foot. The diagnosis was of bilateral pes planus. The examiner noted that there is no documentation of any flat foot pain in service. The examiner concluded that consequently, the Veteran's pes planus is not related to service. The Veteran was afforded another VA examination with the January 2011 VA examiner in May 2012, during which the claims file was reviewed. The examiner indicated that the Veteran had flat feet and gout. With regards to history, the examiner indicated that there were no documented problems in service, although the Veteran stated that he had foot problems in the 1960s. After performing a physical examination, the examiner stated that the Veteran's pes planus was not related to service. The examiner indicated that there was no new evidence, the claims file was silent on foot problems, and there was no change in opinion. Pursuant to the Board's October 2012 remand, the Veteran underwent a VA examination with a different examiner in December 2012, during which the claims file was reviewed. The examiner related that the Veteran's service treatment records showed that his feet were normal on his entrance examination in 1962. Thereafter, the Veteran's service treatment records were silent for any complaints, findings, or treatment of any foot disorder. The Veteran's separation examination in 1965, was also negative for any complaints, and the Veteran's feet were normal. The examiner found that the Veteran had mild bilateral pes planus upon examination. Importantly, the examiner stated that pes planus was not a disorder that would have a delayed onset from the initial complaints of pain. Moreover, since the Veteran had a normal foot examination upon entrance and separation from the military, and no orthopedic foot complaints while on active duty, his current bilateral pes planus was not caused by or aggravated by his military service. In so finding, the examiner considered and discussed the Veteran's report that starting during basic training, he would get a sharp pain along the medial longitudinal foot arches, and also on the dorsal surface of both of his feet after marching, prolonged walking, or prolonged standing. The examiner considered the Veteran's statements that he had this same type of pain since service, and that while he was in the service, he would put a rolled up rag or a sponge in his boots to relieve the pain which helped to reduce his foot pains. The Veteran stated that he weighed about 150 to 160 pounds, at most, when he was in the service, and weighed about 116 when he entered basic training. The examiner reported that presently the Veteran weighed about 200 pounds. Nevertheless, the examiner concluded that in the absence of any specific trauma or injury, these historical subjective symptoms do not represent any specific foot disorder, pathology, or diagnosis, and since there was no in-service documentation of any foot disorder, there is no further information or testing that would help to clarify any specific diagnoses or etiologies from the past for the Veteran's subjective bilateral foot complaints. The January 2011 and May 2012 examining orthopedist reviewed the claims file and opined that the Veteran's pes planus was not related to service. However, these opinions are of limited probative value, as they failed to discuss the Veteran's lay statements in forming the opinion. However, based on a review of the evidence, on clinical examination, and with consideration of the Veteran's statements, the December 2012 VA examiner found that the Veteran's current bilateral pes planus was not incurred in his military service. As such, this medical opinion is entitled to the great probative weight. Although the Veteran's statements are competent to state that he had pain in his feet while in service and thereafter, the December 2012 VA examiner stated that the Veteran's "historical subjective symptoms do not represent any specific foot condition, pathology or diagnosis." Moreover, VA and private medical records beginning in 1999 document that the Veteran was treated and hospitalized for skin disorders on his feet to include tinea pedis, mycosis, and cellulitis, as well as treatment for gout in his feet, but there were no complaints reported or findings on multiple foot examinations of flat feet. Accordingly, the evidence shows that although the Veteran has had foot pain since service discharge, it is not shown to be related to flat feet. The Board concludes that the medical findings and opinions on examination are of greater probative value than the Veteran's allegations regarding the relationship between his current flat foot disorder and service. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for flat feet. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Service connection for flat feet is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs