Citation Nr: 1310381 Decision Date: 03/27/13 Archive Date: 04/09/13 DOCKET NO. 10-28 721 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a bilateral foot disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Veteran, family members, and friends ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from November 1957 to September 1959. This case comes before the Board of Veterans Appeals (the Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. A hearing was held before the undersigned Veterans Law Judge in March 2012. A transcript of that hearing is in the claims file. The issues of entitlement to service connection for bilateral hearing loss and for a bilateral foot disorder were remanded by the Board in September 2012. In a January 2013 rating decision, the Veteran was granted service connection for bilateral hearing loss. Because the appellant was awarded service connection for this disability, it is no longer on appeal before the Board. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). Regarding the issue of entitlement to service connection for a bilateral foot disorder, additional VA medical treatment records were added to the claims file and considered by the RO. A supplemental statement of the case was also issued in January 2013. Thus, the required development has been completed and this case is appropriately before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Bilateral pes planus, or any other disorder of either foot, was not chronic in service. 2. Symptoms of bilateral foot disorders have not been continuous since service. 3. A current foot disorder of either foot is not related to service. 4. Arthritis of either foot was not diagnosed during service and did not manifest to a compensable degree within one year of service separation. CONCLUSION OF LAW Current bilateral foot disorders were not incurred in service and arthritis not may be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012). For the reasons to be discussed, the Board finds that VA has satisfied its duties to the appellant under the VCAA. A VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) 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. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). VA has made all reasonable efforts to assist the Veteran in the development of his claim, has notified him of the information and evidence necessary to substantiate the claim, and has fully disclosed VA's duties to assist him. In August 2008 and September 2012 letters, the Veteran was notified of the information and evidence needed to substantiate and complete the claims on appeal. Additionally, the August 2008 letter provided him with the general criteria for the assignment of an effective date and initial rating. Id. The Board notes that, in the present case, initial notice was issued prior to the adverse determination on appeal; thus, no timing issue exists with regard to the notice provided the claimant. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board further finds that VA has complied with the duty to assist by aiding the appellant in obtaining evidence. It appears that all known and available records relevant to the pending appeal have been obtained and are associated with the Veteran's claims files. The RO has obtained the Veteran's service treatment records, as well as VA and non-VA medical records. He has also been afforded a VA medical examination in March 2010. The Board notes that the VA medical evidence contains sufficiently specific clinical findings and informed discussion of the pertinent history and clinical features of the disability on appeal and is adequate for purposes of this appeal. The Board is not aware, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received. In March 2012, the Veteran was afforded the opportunity to testify before a Veterans Law Judge. During the hearing, the Veterans Law Judge clarified the issue on appeal and asked about the possibility of forgotten records. Such actions supplement the VCAA and comply with 38 C.F.R. § 3.103. The Board is not aware, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received. During the Veteran's March 2012 hearing, he asserted that his service treatment records may have been destroyed in the 1973 fire at the National Personnel Records Center in St. Louis, Missouri. The Board notes, however, that the Veteran's service treatment records are of record, and appear to be complete. Thus, the Board finds no basis to remand this claim to obtain additional service treatment records by alternative means. Based on the foregoing, the Board finds that the Veteran has not been prejudiced by any failure of VA in its duties to notify and assist him, and that any such violations could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Thus, adjudication of his claim at this time is warranted. Service Connection for Bilateral Foot Disorder The Veteran seeks service connection for a bilateral foot disorder. He contends he developed disorders of both feet during service due to the cold and rainy weather in which he marched as an infantryman. Additionally, he stated that while he was afforded surgery of his feet during service, this treatment did not alleviate his symptoms. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012; 38 C.F.R. § 3.303(a) (2012). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2012). 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) (2012). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as arthritis, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309. In the recent case of Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). Arthritis is recognized as a chronic disorder by 38 C.F.R. § 3.309(a). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). When there is an approximate balance of positive and negative evidence regarding any matter material to the claim, the claimant shall be given the benefit of the doubt. 38 U.S.C.A. § 5107 (West 2002). On examination for service entrance in September 1957, the Veteran denied any history of foot trouble, and no abnormality of either foot was found on objective evaluation. In February 1958, the Veteran sought treatment for complaints of flat feet. The impression was of 3rd degree pes planus, and arch supports were provided him. The service treatment records reflect no further treatment of his feet during service. On service separation medical examination in July 1959, the Veteran's feet were described as normal. Pes planus of either foot was not noted. In March 2010, the Veteran testified before a Decision Review Officer at the RO. The Veteran stated that his feet began hurting him during service; however, he denied seeking any treatment for his feet at that time. When asked by the Decision Review Officer if he had sought medical treatment for his feet during service, the Veteran responded "No, I didn't." At his March 2012 personal hearing before a Veterans Law Judge, the Veteran stated he was hospitalized during service for surgery to both feet. He testified that he was afforded surgery of his feet at a military hospital in Germany, where he was stationed at the time. Review of his service treatment records is negative for any such operations, however. Additionally, when he initially filed a VA compensation claim in June 1960, shortly after his September 1959 service separation, he did report in-service hospitalizations in January and April 1959, but stated these were for mental disturbances only. No mention of a disorder of either foot was made at that time by the Veteran. Also at his March 2012 hearing, the Veteran submitted recent photographs of his feet. These photographs confirm current bilateral abnormalities of the toes of both feet, but are silent regarding the date of onset or etiology of such disorders. On initial VA examination in October 1960, the Veteran also did not report any disorder of either foot. He also stated that his health during service was without "serious illness or injury." Physical examination of his feet was characterized as "normal." The Veteran was hospitalized at the VA medical center in Temple, Texas, in 1969 and again in 1970 for psychiatric symptoms. No problems specific to the Veteran's feet were noted on hospitalization in 1969, but he was provided Desenex for his feet, to be used on an as needed basis. He also reported problems with his feet upon hospitalization in 1970. No diagnosis of a disorder of either feet was rendered at the time of his hospitalization. On hospitalization for psychiatric treatment in January 1991, the Veteran was noted to have hallux valgus bilaterally. Onychomycosis and hyperkeratosis were also present on both feet bilaterally. A VA podiatric examination was afforded the Veteran in March 2010. His claims file, to include his service treatment records, was reviewed in conjunction with his examination. The Veteran reported bilateral foot pain and itching since his initial diagnosis of flat feet in service. He denied wearing special shoes or using shoe inserts at that time. He did report a history of surgery in service while stationed in Germany in 1959. On physical evaluation, the Veteran had tenderness of the soles of both feet. X-rays of the feet confirmed moderate to severe hallux valgus changes with mild degenerative joint disease bilaterally. Mild hypertrophic changes of the first metatarsal phalangeal and distal interphalangeal joints of each foot were also noted. Hammertoes were also suspected due to the persistent flexed position of the toes of both feet, and minimal plantar calcaneal spurs were seen bilaterally. Pes planus was not present for either foot. Thus, because pes planus was not currently present, the examiner found no etiological nexus between the Veteran's pes planus diagnosed in service and any current foot disorder. Regarding the Veteran's other current disorders of the feet, the examiner found it was less likely than not that they were related to service, as they were not noted during service or for many years thereafter. After considering the totality of the record, the Board finds the preponderance of the lay and medical evidence to be against the award of service connection for bilateral foot disorders. While the Veteran did seek treatment for foot pain on at least one occasion during service, and was diagnosed with 3rd degree pes planus, no disorder of either foot was noted at service separation or for many years thereafter, until at least 1969. Upon VA hospitalization that year, he was provided a medicated powder for his feet, and he again reported foot problems in 1970. Nevertheless, these reports represent a gap of over 10 years following service separation. This lengthy period without complaint or treatment is a factor that may be considered regarding whether there has been ongoing symptomatology since service, and weighs heavily against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Additionally, when the Veteran's claim was presented to a competent medical expert in March 2010, the expert found no evidence of an etiological nexus between the Veteran's single incident of bilateral pes planus diagnosed in service and any current disorder of either foot. The expert also did not find that a current diagnosis of pes planus was warranted. The Board also notes that while the Veteran first filed a VA compensation claim in 1960, within a year of service separation, he did not report a disorder of either foot at that time. It is significant that, at the time the Veteran filed a claim for service connection in 1960, he did not claim or even mention any history or symptoms of any bilateral foot disorders. This action suggests to the Board that there was no pertinent symptomatology of the feet at that time. While inaction regarding filing a claim is not necessarily indicative of the absence of symptomatology, where, as here, a veteran takes action regarding other claims, it becomes reasonable to expect that the veteran is presenting all issues for which he is experiencing symptoms that he believes are related to service. In other words, in this case, the Veteran demonstrated that he understood the procedure for filing a claim for VA disability compensation, and he followed that procedure in another instance where he believed he was entitled to those benefits. In such circumstances, it is more reasonable to expect a complete reporting than for certain symptomatology to be omitted. Thus, the Veteran's inaction regarding a claim for a disorder of either foot, when viewed in the context of his action regarding another claim for compensation, may reasonably be interpreted as indicative of the Veteran's belief that he did not sustain a foot disorder in service and did not have such symptomatology at the time he filed the claim for compensation in 1960. Additionally, an October 1960 VA medical examination found his feet to be within normal limits, without complaints of symptomatology of the feet reported by the Veteran or objectively noted by the examiner. Furthermore, the Veteran has reported that he experienced foot pain bilaterally during service which continued after service, and he has submitted lay statements from other family members to that effect. The Board acknowledges that laypersons such as the Veteran and his family are competent to report such observable symptomatology as bilateral foot pain. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Board does not find these reports credible, however, in light of the evidence noted above. As already discussed, the Veteran at first denied seeking any treatment for his feet during service while testifying before a Decision Review Officer in March 2010. In March 2012, however, while testifying before a Veterans Law Judge, he reported surgeries on both feet during service. His service treatment records are negative for any such treatment during service, and no such surgeries were noted on his service separation medical examination or on his post-service medical records. Also, on his initial 1960 claim for VA compensation, he reported he was hospitalized only for psychiatric treatment, and did not report any hospitalization or surgery of either foot at that time. Regarding statements made by various lay family members, the Board notes than none of these parties would have firsthand knowledge of any injury sustained or treatment provided the Veteran's feet during active duty, as he has stated he was surgically treated while stationed in Germany, away from his friends and family. Additionally, these statements lack credibility due to factual inaccuracies contained within. For example, one family member wrote in a July 2007 statement to a member of Congress that the Veteran served in the Korean War. The recognized dates of the Korean conflict are between June 27, 1950, and January 31, 1955. See 38 C.F.R. § 3.2(e). The Veteran's service period was between November 1957 and September 1959, subsequent to the Korean conflict and prior to the Vietnam conflict, and his service personnel records are negative for any type of combat service. Thus, the statement as to service in Korea is incorrect and the assertions in the statement are not credible. For these reasons, the Board finds the lay accounts of the Veteran's in-service surgeries on his feet, and post-service bilateral foot pain to lack credibility, and therefore carry no probative weight. The Board also notes that the March 2010 VA medical examination indicated a current diagnosis of bilateral degenerative joint disease of the feet was warranted. Arthritis is a presumptive disorder for VA purposes, as noted above. The record does not indicate, however, that arthritis manifested either during service or to a compensable degree within a year of service separation. This first diagnosis of degenerative joint disease was rendered approximately 50 years after service separation, and no competent party has stated it manifested during the presumptive period. Therefore, service connection for degenerative joint disease of the feet on a presumptive basis is not warranted. In conclusion, for the reasons discussed above, the Board concludes that the preponderance of the evidence is against the claim for service connection for bilateral foot disorders, and service connection must therefore be denied. The Board also concludes that there is no doubt to be otherwise resolved, and the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for a bilateral foot disorder is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs