Citation Nr: 1310467 Decision Date: 03/29/13 Archive Date: 04/09/13 DOCKET NO. 04-43 060 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for ulcers of the feet and legs, to include as due to diabetes mellitus, type II. 2. Entitlement to service connection for status-post amputation of toes on the left foot, to include as due to diabetes mellitus, type II. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran had active service from December 1963 to November 1965. This matter came before the Board of Veterans' Appeals (Board) on appeal from a March 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. These claims were previously remanded by the Board for further evidentiary development in October 2008, September 2010 and July 2011. Such development has now taken place and appellate review may now proceed on these claims. FINDINGS OF FACT 1. Service connection for diabetes mellitus, type II, has not been established. 2. Ulcers of the legs and feet are due to nonservice-connected diabetes mellitus and did not manifest during, or as a result of, the Veteran's active military service. 3. The amputation of toes of the left foot was due to nonservice-connected diabetes mellitus, type 2, and not a result of the Veteran's active military service. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for ulcers of the feet and legs have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 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). 2. The criteria for establishing entitlement to service connection for status-post amputation of toes on the left foot have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 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 CONCLUSIONS VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the Veteran 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 Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). 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 a 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. Previously, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the failure to provide pre-adjudicative notice of any of the necessary duty to notify elements was presumed to create prejudicial error. Sanders v. Nicholson, 487 F.3d 881 (2007). VA was required to show that that the error did not affect the essential fairness of the adjudication, and that to make such a showing the VA had to demonstrate that the defect was cured by actual knowledge on the claimant's part or that a benefit could not have been awarded as a matter of law. Id. However, the United States Supreme Court (Supreme Court) recently held this framework to be inconsistent with the statutory requirement that the CAVC take "due account of the rule of prejudicial error" under 38 U.S.C.A. § 7261(b)(2). Shinseki v. Sanders, 556 U.S. 396 (2009). In reversing the Federal Circuit's decision, the Supreme Court held that the burden is on the claimant to show that prejudice resulted from the error, rather than on VA to rebut a presumed prejudice. Id. Letters sent to the Veteran in June 2004, March 2004 and November 2008 addressed all notice elements listed under 3.159(b)(1). The letters informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. While all necessary notice was not provided to the Veteran until after the initial adjudication of his claims, the claims were subsequently readjudicated, no prejudice has been alleged, and none is apparent from the record. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant 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). Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content. Adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board that complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, to include substantial compliance with the Board Remands. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Therefore, appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment and personnel records; VA outpatient treatment records; and, private treatment records have been associated with the claims folder. The Veteran was afforded a VA examination in November 2010, and an addendum to the November 2010 examination was prepared in August 2011. Neither the Veteran nor his representative have identified any additional existing evidence that is necessary for fair adjudication of the claim that has not yet been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Criteria & Analysis Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). To establish service connection, there must be: (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996)). Service connection may also be granted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Also, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. See 38 C.F.R. § 3.310(b); Libertine v. Brown, 9 Vet. App. 521, 522 (1996); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). An appellant's own conclusion, stated in support of his claim, that his present disability is secondary to his service-connected disability is not competent evidence as to the issue of medical causation. See 38 C.F.R. § 3.159; see also Grivois v. Brown, 6 Vet. App. 136 (1994). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). An evaluation of the feet and lower extremities performed as part of the Veteran's October 1963 enlistment examination was deemed to be normal. The examination report also reflects that aside from elevated audiometric findings, no additional defects were noted. The Veteran also described his health as "good" in his Report of Medical History associated with this examination, and he denied a history of foot trouble or bone, joint or other deformity. According to a June 1965 treatment note, the Veteran was having difficulty with his right small toe overlapping the other toe, causing a blood blister and burning. The blister was drained and moleskin was applied for treatment. A follow-up record reflects a corn on the small right toe. It was noted that the Veteran broke his toe before coming into the Army. However, a July 1965 X-ray of the toe was deemed to be normal. The toe was noted to now be in such a position as to cause excess rubbing and a large corn. The Veteran was diagnosed with dorsal angulation of the little toe of the right foot. It was believed his shoes were too small. An August 1965 treatment record notes that the Veteran still had a callus on the little toe of the right foot. The Veteran was subsequently afforded a separation examination in September 1965. An evaluation of the Veteran's feet and lower extremities was deemed to be normal at this time. The Veteran, again, described his health as "good" in his Report of Medical History associated with this examination, and he denied having foot trouble or bone, joint or other deformity. The record contains a number of private treatment records from the Huntsville Hospital. In September 1998, the Veteran was noted to be suffering from diabetes mellitus, cellulitis with abscess formation of the left foot, and status post laminectomy. The Veteran was noted to have long-standing diabetes mellitus that was under good control. He was seen in the emergency room for a foot ulcer. A December 1998 record reflects an open wound and necrotic toe of the left foot secondary to diabetic foot abscess. The left third toe was amputated as a result. The left second toe was amputated in November 1999 due to a diabetic infection of the left foot. A May 2001 record reflects that the Veteran was treated for diabetic ulceration of the left plantar surface. According to a May 2002 VA treatment record, the Veteran was suffering from diabetes mellitus, type II, with neuropathy and diabetic foot ulcers. He was also status-post amputation of the first, second and third toes of the left foot. The Veteran was afforded a general VA examination in February 2003. The Veteran was noted to be suffering from diabetes mellitus, type II, with peripheral vascular disease, status post-amputation of the left second and third toes secondary to ulcers and foot infections. Diabetic neuropathy was also noted. A May 2004 VA podiatry clinic note reflects fissured skin along the dorsum of the right first MPJ. According to a March 2007 VA podiatry note, the Veteran had a charcot left foot deformity with increased deformity of the left midfoot. He also had diabetes mellitus, type II, with neuropathy lichenification/dermatitis of the right forefoot. A May 2007 VA podiatry note reflects that the Veteran was being treated for diabetes mellitus type 2 with neuropathy and a left midfoot plantar ulcer. The Veteran was afforded a VA examination of the lower extremities in November 2010. The Veteran reported that his foot got infected due to non-healing foot ulcers and had amputation in the left foot of the second and third toes. He also reported that he had been diabetic since the late 1970's or early 1980's. He was told that he was borderline diabetic in 1969. The examiner further noted that the Veteran developed diabetic neuropathy in 1998 with left leg foot ulcers. This was complicated by osteomyelitis and subsequent amputation of the left second and third toes. The examiner opined that the Veteran's foot and leg ulcers and amputation of the left toes were less likely than not caused by or a result of symptomatology or treatment during military service. The examiner explained that the Veteran had a normal entrance and separation examination. The nature and etiology of his current foot ulcers and subsequent amputations of the left toes was due to diabetic neuropathy. There was no evidence of diabetes during his time in service. His separation examination was silent with regards to ongoing right foot problems or any left foot problems. He was treated for a blister and a callus of the right little toe during service, and this was less likely as not the cause of his subsequent foot ulcers and amputation of the toes. An addendum to the November 2010 VA examination was prepared in August 2011. The examiner reviewed the Veteran's service treatment records. It was noted that in June 1965, the Veteran was having difficulty with his right small toe overlapping the other toe, causing a blood blister. A corn was subsequently noted on the small right toe. The examiner noted that the service treatment records reflected that the Veteran broke this toe before joining the Army. However, a fracture performed in July 1965 was interpreted to be normal. It was felt that the Veteran's shoes were too small and that this was aggravating his toe problems. The Veteran returned in August 1965 for a further check of the toe and the service records revealed no further evidence of treatment for this condition. A defect related to the toe was also not noted during the September 1965 separation examination. The examiner opined that the Veteran's left foot and leg ulcers, and, his status post amputations of the left toes, were not caused by or a result of the Veteran entering service with a condition that may have led to his current disorders. The examiner explained that the Veteran fractured the right toe prior to military service. This did not result in left foot ulcers or amputation, since this was caused by the Veteran's diabetic neuropathy. The examiner further opined that the Veteran's small right toe fracture that was a preexisting condition was not permanently aggravated by military service. X-rays of the toe were negative for a remote fracture during military service. The Veteran was treated for blister and callus of his little toe on the right foot that was felt to be due to tight fitting shoes. The Veteran had a transient blister that was treated and resolved. The Veteran served four more years with no further treatment and the separation examination was negative for any right foot problems. Analysis The preponderance of the above evidence demonstrates that service connection is not warranted for ulcers of the feet and legs or amputation of the toes on the left foot. The Board will first address the assertion that the Veteran's disabilities are directly related to military service. While the Veteran was treated for a blister of the right little toe during service, an evaluation of the feet was deemed to be normal upon separation from active duty. Furthermore, the record contains no evidence of any chronic residuals related to the in-service treatment of a right little toe condition. As explained by the August 2011 VA examiner, the Veteran's in-service right little toe symptomatology did not cause his current disabilities of foot ulcers and amputation of the left toes. Finally, there is no evidence of ulceration of the lower extremities during active military service. As such, the preponderance of the evidence of record demonstrates that the Veteran's current disabilities of the lower extremities did not manifest during, or as a result of, active military service. The Veteran's representative argued in a September 2012 statement that the Veteran's right little toe should be service-connected because his preexisting fracture was not noted upon entry. However, as discussed above, the record contains no evidence of any residuals associated with the right toe resulting from military service. The VA examiner explained in August 2011 that the Veteran's present disabilities of the lower extremities were not due to his right toe disability. This condition was treated during military service and resolved. An X-ray also revealed no evidence of a fracture during military service. Rather, his disabilities are a result of his diabetes mellitus - a disability for which service connection has not been established. The Board recognizes that, per the Board's Remands, the VA examiner concluded that the Veteran's right toe injury preexisted military service even though this was not listed on the Veteran's enlistment examination. This conclusion is of little probative value, however. For purposes of basic entitlement to service-connection, 38 U.S.C.A. § 1111 provides that every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 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 preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. at (b)(1). The law further provides that the burden to show no aggravation of a pre-existing disease or disorder during service is an onerous one that lies with the government. See Cotant v. Principi, 17 Vet. App. 116, 131 (2003); Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). Importantly, the VA Office of the General Counsel determined that VA must show by clear and unmistakable evidence that there is a pre-existing disease or disorder and that it was not aggravated during service. See VAOPGCPREC 3-03 (July 16, 2003). The claimant 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 Board must follow the precedent opinions of the General Counsel. 38 U.S.C.A. § 7104(c). Also pertinent is the decision of the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004), issued on June 1, 2004, summarized the effect of 38 U.S.C.A. § 1111 on claims for service-connected disability: 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. 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. § 1153; see also 38 C.F.R. § 3.306; Jensen, 19 F.3d at 1417. Wagner, 370 F. 3d at 1096. In the present case, the examiner did not determine that there was clear and unmistakable evidence of a preexisting injury. Although, the Court has held that, as a matter of law, the presumption of soundness is rebutted by clear and unmistakable evidence consisting of a veteran's own admission of a pre-service history of medical problems during in-service clinical examinations. Doran v. Brown, 6 Vet. App. 283, 286 (1994). In any event, even if the Board were to find that there was clear and unmistakable evidence that the Veteran's right toe injury preexisted service, the fact remains that there is no evidence to relate his current claimed disabilities to this injury. As detailed, the VA examiner concluded that there was no relationship between the Veteran's ulcerations and amputations due to in-service right toe symptomatology. The examiner explained that it was the right foot that was affected during service and that his amputations occurred on the left foot. Furthermore, the examiner explained that there was no association between the in-service right toe symptomatology and the Veteran's ulcerations of the feet and legs, as this was due to diabetes mellitus. Finally, there is no current evidence of any residual related to the Veteran's in-service right toe symptomatology and the examiner explained that the right foot was normal upon separation from active duty. These are the factors that have been considered in denying the Veteran's claims, and the fact that the VA examiner referred to this condition as preexisting military service has no bearing on the Board's current decision. The Board has also considered the Veteran's claim of entitlement to service connection for ulcers of the legs and feet and amputations of toes of the left feet as due to or aggravated by diabetes mellitus. However, service connection for diabetes mellitus was denied in a September 2010 Board decision. This decision is final. 38 U.S.C.A. § 7104. Secondary service connection may not be established based on a disability for which service connection has not been awarded. The Board recognizes that the Veteran believes his disabilities of the lower extremities are related to military service. However, the Veteran has not provided any evidence or lay statements to suggest that his disabilities are in anyway related to his active service. As such, the Veteran's assertion that these conditions are related to military service fails to establish that service connection is warranted. In summary, there is no in-service evidence of ulcerations of the lower extremities or amputations of toes of the left feet. While the Veteran did suffer from right toe symptomatology, the preponderance of the evidence demonstrates that the Veteran suffered no chronic residuals as a result of this symptomatology. The Veteran's present disabilities of ulcerations of the feet and legs and amputation of the toes of the left feet have been related to diabetes mellitus - a disability for which the Veteran is not service-connected. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C.A. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claims of entitlement to service connection for ulcers of the feet and legs and amputation of toes of the left foot, to include as due to diabetes mellitus, must be denied. CONTINUED ON NEXT PAGE... ORDER Service connection for ulcers of the feet and legs is denied. Service connection for status-post amputation of toes on the left foot is denied. ____________________________________________ M.W. KREINDLER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs