Citation Nr: 1309646 Decision Date: 03/21/13 Archive Date: 04/01/13 DOCKET NO. 08-32 995 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for bilateral hallux valgus deformities, to include as secondary to service-connected limitation of motion of the left second metatarsal, residual of left foot osteotomy. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran served on active duty from June 1982 to September 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied service connection for a left foot disorder. A Travel Board hearing was held in June 2010 with the Veteran in St. Petersburg, Florida, before the undersigned Veterans Law Judge, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case. A transcript of the hearing testimony is in the claims file. The Board then remanded the matter for additional development in July 2010. Specifically, the Board requested development to determine whether the Veteran's diagnosed bilateral hallux valgus deformities were incurred in or otherwise related to service. In a November 2010 rating decision, the RO granted service connection for limitation of motion of the left second metatarsal, and granted a 10 percent disability rating effective January 17, 2008. A supplemental statement of the case (SSOC) was also promulgated in November 2010 and addressed the denial of service connection for bilateral hallux valgus deformities. The Board then denied service connection for bilateral hallux valgus deformities in a March 2011 decision. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Remand (JMR) filed by the parties, the Court remanded the matter back to the Board in May 2012. Specifically, the JMR noted that the Board should have addressed whether the Veteran's bilateral hallux valgus deformities were caused or aggravated by the service-connected limitation of motion of the left second metatarsal. In August 2012, the Board remanded the case to the RO so that an opinion could be provided to address whether the Veteran's hallux valgus deformities were caused or aggravated by her service-connected limitation of motion of the left second metatarsal, residual of left foot osteotomy. The directives of the Board's remand were substantially complied with as an opinion addressing the relevant medical issues was provided in September 2012. The case is now returned to the Board for appellate review. FINDING OF FACT The competent and probative evidence of record shows that the Veteran's bilateral hallux valgus deformities are not related to her service-connected limitation of motion of the left second metatarsal, residual of left foot osteotomy, or any event or injury in service, or that any hallux valgus deformity had its onset in service. CONCLUSION OF LAW The criteria for service connection for bilateral hallux valgus deformities are not met. 38 U.S.C.A. § 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION A. Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2012). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The Board notes that effective May 30, 2008, VA amended its regulations governing VA's duty to provide notice to a claimant regarding the information necessary to substantiate a claim. The new version of 38 C.F.R. § 3.159(b)(1), removes the portion of the regulation which states that VA will request that the claimant provide any evidence in his or her possession that pertains to the claim. See 73 Fed. Reg. 23353 -54 (April 30, 2008). Prior to the initial adjudication of the Veteran's claim, a letter dated in January 2008 was sent to the Veteran in accordance with the duty to notify provisions of the VCAA. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Veteran was notified of the evidence that was needed to substantiate her claim; what information and evidence that VA will seek to provide and what information and evidence the Veteran was expected to provide, and that VA would assist her in obtaining evidence, but that it was her responsibility to provide VA with any evidence pertaining to her claim. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The Veteran was also notified of the criteria for establishing an effective date and disability rating. See Dingess. In that regard, the Veteran received complete notice regarding her claim for service connection. The Veteran's service treatment records, VA treatment records, VA authorized examination reports, lay statements, and hearing transcript have been associated with the claims file. The Board specifically notes that the Veteran was afforded VA examinations with respect to her disabilities. 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). After the case was remanded by the Court, pursuant to a JMR, the Board determined that an additional VA examination was necessary in order to determine whether the Veteran's bilateral hallux valgus deformities were aggravated beyond their natural progression by the Veteran's service-connected limitation of motion of the left second metatarsal. See 38 C.F.R. § 3.159(d) (VA's duty to assist includes the duty to provide a VA examination and obtain an opinion when necessary to decide the claim). An adequate examination addressing all the relevant criteria was provided in September 2012. As set forth in greater detail below, the Board finds that the VA examinations obtained in this case are adequate as they are collectively predicated on a review of the claims file; contain a description of the history of the disabilities at issue; document and consider the relevant medical facts and principles; and provide opinions as to the etiology of the Veteran's diagnosed foot conditions. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c) (4) . VA has provided the Veteran with opportunity to submit evidence and arguments in support of her claim. The Veteran and her representative have not made the Board aware of any additional evidence that needs to be obtained prior to appellate review. The record is complete and the case is ready for review. B. Law and Analysis Service connection is established where a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). 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. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). A veteran may be granted service connection for any disease initially diagnosed after discharge, but only if 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 granted for a disability proximately due to or the result of a service-connected disability and where aggravation of a nonservice-connected disorder is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Further, effective October 10, 2006, 38 C.F.R. § 3.310 was amended to codify the Court's holding in Allen, which relates to secondary service connection on the basis of aggravation of a nonservice-connected disorder by a service-connected disability. See 38 C.F.R. § 3.310(b). The amendment essentially requires that a baseline level of severity of the nonservice-connected disease or injury must be established by medical evidence created before the onset of aggravation. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this regard, the Board must assess the credibility and probative value of evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wood v. Derwinski, 1 Vet. App. 190 (1991). While the Board is not free to ignore the opinion of a treating physician, it is free to discount the credibility of that physician's statement. See Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993); Sanden v. Derwinski, 2 Vet. App. 97, 101 (1992). The Veteran underwent an enlistment examination in March 1982. No relevant abnormalities were noted, and the Veteran denied a history of foot trouble in an accompanying Report of Medical History. In January 1985, the Veteran complained of a painful callous on the second submetatarsal of her left foot. She indicated that the condition became symptomatic during basic training and had progressively worsened since that time. She was diagnosed with a lesion secondary to biomechanical abnormality. She underwent an elevational V osteotomy on that area of her left foot in February 1985. During her August 1986 separation examination, no relevant abnormalities were noted, and the Veteran indicated she was in "good health." After service, VA treatment records dated August 2007 reflect that the Veteran sought treatment for calluses and bunions on the bilateral feet. X-rays revealed a hallux valgus deformity with soft tissue bunion changes along the medial aspect of the first metatarsal head of the right foot, and a similar deformity noted medially on the left foot. In February 2008, the Veteran complained of left bunion pain that had been present for a couple of years. Recently, the pain had become more severe. She was diagnosed with a hallux valgus deformity on the second digit of the left foot. The Veteran was afforded a VA examination in March 2008. The claims file was reviewed by the examiner, who noted the Veteran's surgical treatment in service. The Veteran presently complained of bunion pain on her left great toe that had been present for a couple of years. The Veteran reported no other significant symptoms. On examination of the left foot, there was tenderness localized to the first metatarsophalangeal joint. The first metatarsal joint had some subluxation causing overlap of the second toe over the first toe, which caused a hallux valgus deformity. There was a mild bursa accompanying the bunion on the first metatarsal joint. The second toe was normal with no tenderness. Examination of the right foot also revealed a hallux valgus deformity caused by mild subluxation of the first metatarsal joint. The examiner concluded that there was no residual from the Veteran's surgery in service on her second metatarsal. Moreover, the bunion on the first metatarsal of the bilateral feet was not caused by surgical correction performed in service. The Veteran testified at a Travel Board hearing in June 2010. She stated that she had developed calluses on her foot during basic training. Initially, she did not seek treatment, but eventually had surgery to correct the problem. She was able to complete the remainder of her service. She did not have any trouble with her foot immediately after service, but had recently developed problems with it. She had pain and discomfort, particularly with certain types of shoes. She was advised by her current doctors that she could be treated surgically or with special shoes. She believed her current condition was related to her condition and treatment in service because she had no difficulties with her right foot. The Veteran was afforded an additional VA examination in November 2010. The claims file was reviewed by the examiner, who noted the Veteran's documented treatment during and after service. The Veteran first noticed development of hallux valgus deformities in the late 1990's, worse on the left than the right. She had pain in the first and second metatarsal and phalangeal joints of her left foot. She denied any symptoms in her right foot. On examination of the left foot, there was tenderness over the hallux valgus deformity, as well as callosities indicative of abnormal weight bearing. The great toe underlapped the second toe, resulting in limitation of motion. Examination of the right foot revealed a hallux valgus deformity with no other significant symptoms. The examiner diagnosed the Veteran with bilateral hallux valgus deformities, but concluded that they were less likely than not related to service, as she did not develop the hallux valgus deformities until the late 1990's. Moreover, the deformities were bilateral. Therefore, they were less likely than not related to service, including the osteotomy performed in service. The Veteran was granted service connection for limitation of motion of the left second metatarsal, claimed as a residual of osteotomy, in a November 2010 rating decision. In denying the Veteran's claim in March 2011, the Board found that the Veteran's bilateral hallux valgus deformities were not etiologically related to service, including the osteotomy performed in service. As noted in the JMR, however, the Board did not address whether the Veteran's hallux valgus disabilities were aggravated by the osteotomy residuals for which she was granted service connection in November 2010. The Veteran subsequently underwent another VA examination in September 2012. The examiner noted that the Veteran reported that after basic training she developed a callous on the bottom of her left toe from her shoes. She had surgery in 1984-1985 to have it removed. There were no complications after the surgery but she developed unbearable pain that would wake her up at night, located on the left great toe medial side. Then she noted that the big toe started to turn in under the second toe that was repositioned during surgery to relieve the pressure. Over the years she reported that the deformity progressed and she still had pain. She reported that the toe continued to turn in and the bone on the medial side of the big toe continued to grow out. When she walked the second toe would put pressure onto the great toe of the left foot. This caused an imbalance at times and any shoes other than tennis shoes caused discomfort/pain. She denied any complaints with the right foot and could move the toes freely with the right foot. On physical examination it was noted that the left great toe underlapped the second toe with dorsiflexion limited to 30 degrees and metatarsophalangeal joint angulation of 20 degrees. There was no evidence of painful motion, swelling, instability, or weakness. On the right foot there also was no evidence of painful motion, swelling, tenderness, instability, weakness, or abnormal weight-bearing. There were degenerative changes at the first metatarsophalangeal joint bilaterally with bilateral hallux valgus deformities, much more pronounced on the left. The examiner noted a review of the claims file, service treatment records, and VA medical records and documented pertinent findings in the record. The examiner found that the Veteran's hallux valgus deformities were less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected condition. The rationale for the opinion was that acquired hallux valgus had not been known to occur due to or be aggravated by limitation of motion of the left second metatarsal and more so of the opposite side. These were two separate conditions. The fact that the Veteran had bilateral hallux valgus showed that the etiology of the hallux valgus was generalized or systemic or biochemical. Acquired bilateral hallux valgus was generally caused by conditions such as arthritis; excessive pronation at the midtarsal and subtalar joints would compensate for these factors throughout the gait cycle. Ill-fitting shoes could aggravate the hallux valgus condition, as well. Thus, it was determined that the Veteran's bilateral hallux valgus deformities were not proximately due to or aggravated by the Veteran's service-connected limitation of motion of the left second metatarsal, residual of osteotomy. The examiner further noted that a temporal causation between the bilateral hallux valgus deformities and the service-connected limitation of motion of the second metatarsal could not be established. Based on the foregoing, the Board finds that the preponderance of the evidence shows that the Veteran's bilateral hallux valgus is not related to her service-connected limitation of motion of the left second metatarsal, residual of left foot osteotomy, or any event in service. In making this determination, the Board finds it significant that the only evidence of record indicating a possible nexus between any current bilateral hallux deformity and her service-connected limitation of motion of the left second metatarsal, residual of left foot osteotomy, or service, are the Veteran's assertions. The Board acknowledges that the Veteran is competent to report that she has continued to experience symptoms in her feet (left worse than right) since the 1990s. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). The Veteran is also competent to report that she underwent surgery to her left metatarsal in service and developed pain in the left foot after service. See Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that a Veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge). Competent testimony is limited to that which the witness has actually observed and is within the realm of his personal knowledge; such knowledge comes to a witness through use of his senses-that which is heard, felt, seen, smelled, or tasted. Layno v. Brown, 6 Vet. App. 465 (1994). It was within the Veteran's realm of personal knowledge whether she was treated for her left metatarsal in service and that she began to experience pain and was diagnosed with hallux valgus after service in the 1990s. The Veteran's statements also are credible as they have been consistent throughout the record, and are internally consistent with the medical evidence of record, which reflects surgery to the left metatarsal in service and post-service findings of hallux valgus deformities. The Veteran contends that her current hallux valgus deformities are related to the left metatarsal surgery in service, or alternatively secondarily related to the service-connected limitation of motion of the left second metatarsal; however, there is no competent medical evidence or opinion to corroborate these contentions. See 38 C.F.R. § 3.159(a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements, or opinions). The Veteran's opinions are insufficient to provide the requisite nexus between the in-service injury and/or service-connected limitation of motion of the left metatarsal and her current hallux valgus deformities because, as a lay person, she is not competent to establish a medical etiology merely by her own assertions; such matters require medical expertise. See 38 C.F.R. § 3.159(a)(1); Duenas v. Principi, 18 Vet. App. 512, 520 (2004); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) (holding that a layperson is generally not capable of providing opinions on matters requiring medical knowledge, such as the condition causing or aggravating the symptoms); see also Bostain v. West, 11 Vet. App. 124, 127 (1998); Stadin v. Brown, 8 Vet. App. 280, 284 (1995); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). While the Veteran reports working as a nursing assistant and has asserted that her hallux valgus deformities are the result of left foot surgery in service, she has not demonstrated the medical knowledge required to establish an etiological nexus between her current condition and in-service surgical treatment. Therefore, although the statements of the Veteran offered in support of her claim have been given full consideration by the Board, they are not considered competent medical evidence and do not serve to establish a medical nexus between these claimed disorders and the Veteran's period of service. As such, her statements regarding the etiology of any hallux valgus deformities are merely speculation as to a possible cause as she is not medically qualified to prove a matter requiring medical expertise, such as an opinion as to medical causation. The Board finds the VA medical opinions in November 2010 and September 2012 to be more probative as to the etiology of the hallux valgus deformities. The November 2010 examiner reviewed the claims file and examined the Veteran and found that her current hallux valgus deformities were not related to her military service as they developed after her military in service. The examiner also noted that the Veteran only had left foot problems in service, but developed bilateral hallux valgus deformities after service. There are no other competent medical opinions in the record to refute the conclusions of the VA examiner, or to otherwise suggest that bilateral hallux valgus deformities were incurred in service. The September 2012 VA examiner also acknowledged that the Veteran has degenerative changes at the first metatarsophalangeal joint bilaterally with bilateral hallux valgus deformities, much more pronounced on the left, but determined that based on a review of the claims file, service treatment records, and VA medical records and documented pertinent findings in the record, that the Veteran's hallux valgus deformities were less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected limitation of motion of the left metatarsal. The examiner provided the rationale that there was no causal connection, as acquired hallux valgus had not been known to occur due to limitation of motion of the left second metatarsal and more so of the opposite side. Also, the fact that the Veteran had bilateral hallux valgus showed that the etiology of the hallux valgus was generalized or systemic or biochemical. The examiner further noted that acquired bilateral hallux valgus was generally caused by conditions such as arthritis, and that excessive pronation at the midtarsal and subtalar joints compensate for these factors throughout the gait cycle. With respect to the issue of aggravation, the examiner noted that ill-fitting shoes could aggravate the hallux valgus condition, but that the bilateral hallux valgus deformities were not known to be aggravated by limitation of motion of the left second metatarsal, residual of osteotomy. The examiner made this determination with specific knowledge that the Veteran's hallux valgus deformities had been noted to be worse on the left foot with the residuals of left foot osteotomy. Thus, the examiner was fully informed of the pertinent medical history of the case, including the Veteran's assertions of worse symptoms in her left foot; the examiner provided a fully articulated opinion; and the opinion was supported by a reasoned analysis. Therefore, the Board assigns a high probative value to the September 2012 medical opinion, as well as the opinion provided in November 2010. See Nieves-Rodriguez, 22 Vet. App. 295, 303-04 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."); McLendon v. Nicholson, 20 Vet. App. 79 (2006). There are no other medical opinions of record addressing the etiology of the Veteran's bilateral hallux valgus deformities. As such, after weighing and balancing the evidence of record, the Board finds that the preponderance of the evidence of record is against a finding that the Veteran's current bilateral hallux valgus deformities are related to the Veteran' service-connected limitation of motion of the left second metatarsal, or had their onset during active service or are related to any in-service disease, event, or injury. See 38 U.S.C.A. § 1131. Accordingly, the Board finds that the criteria for service connection for bilateral hallux valgus deformities are not met and the claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. See 38 U.S.C.A. § 5107(b). However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). ORDER Entitlement to service connection for bilateral hallux valgus deformities, to include as secondary to service-connected limitation of motion of the left second metatarsal, residual of left foot osteotomy, is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs