Citation Nr: 1311079 Decision Date: 04/03/13 Archive Date: 04/19/13 DOCKET NO. 03-34 975 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a bilateral foot disorder manifested by pes planus and hallux valgus. REPRESENTATION Appellant represented by: Peter J. Meadows, Attorney ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran served on active duty from July 1974 to August 1977 and from December 1991 to December 1996. He also had periods of National Guard active service in 1981 through 1991. This appeal comes before the Board of Veterans' Appeals (Board) from the St. Petersburg, Florida, Regional Office (RO) of the United States Department of Veterans Affairs (VA). In January 2007, the Board denied service for a bilateral foot disorder. The Veteran appealed that decision to the Veterans Claims Court. In February 2008, the Court Clerk vacated the decision and remanded the issue pursuant to a Joint Motion for Remand (JMR). In April 2009, the Board remanded the case for additional development. The Veteran's claims file was lost, apparently in December 2009, after the Board directed that the file be sent to a VA Medical Center for an outside medical opinion. The additional medical opinion was not obtained, as the claims file was lost within that medical facility. VA then took actions to rebuild the claims file. In cases such as this, where records in the custody of VA have been lost, VA has a heightened duty to assist in the development of the claim. Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005). In February 2012, the Board again remanded the case. The Board instructions included taking additional actions to rebuild the claims file. Following such actions, the Board is satisfied that there has been substantial compliance with the remand directives. The Board will proceed with review. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has reviewed both the Veteran's rebuilt physical claims file and the file on the Virtual VA electronic file system, to ensure a total review of the available evidence. FINDINGS OF FACT 1. No defects of either foot were noted when the Veteran was examined for entry into his 1991 to 1996 period of active service. 2. Bilateral pes planus has variously been found present and absent by clinicians who saw the Veteran before and since his second period of active service. 3. Bilateral hallux valgus was not found earlier than at least two years after the Veteran's latest period of active service. CONCLUSIONS OF LAW 1. It is presumed that the Veteran's feet were in sound condition when he entered his 1991 to 1996 period of active service. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. §§ 3.304(b), 3.306(b) (2012). 2. Bilateral pes planus was not incurred or aggravated in either of the Veteran's periods of active service. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). 3. Bilateral hallux valgus was not incurred or aggravated in either of the Veteran's periods of active service. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). Under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, subsequent manifestations of the same chronic disease or injury at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). This has been interpreted as a three-element test: (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 in or aggravated by service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Another alternative for granting service connection is that certain chronic diseases, including arthritis, may be established based upon a legal presumption by showing that it manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). VA presumes that a veteran was in sound condition upon entry into service, except for any defects noted at the time of examination for entry into service. 38 U.S.C.A. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). The presumption of sound condition can be rebutted when clear and unmistakable evidence demonstrates that an injury or disease existed prior to service and was not aggravated by service. 38 C.F.R. § 3.306(b). A preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2012). Whether a preexisting disorder underwent an increase in severity during service is determined based on evidence of the manifestations of the disorder before, during, and after service. For a disorder to be considered aggravated in service, there must be worsening of the underlying condition, not just temporary or intermittent flare-ups of the symptoms of the condition. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Information in the rebuilt claims file reflects that the original claims file contained the report of a May 1974 examination of the Veteran for entrance into his 1974 to 1977 period of active service. The rebuilt claims file does not contain that examination report. The Board therefore presumes that the Veteran's feet were in sound condition when he entered service in 1974. Medical treatment records from his first period of active service do not reflect any complaints involving either foot. The Veteran had National Guard service between his 1970s and 1990s periods of active service. In a July 1988 medical history completed for National Guard service, he checked "no" for any history of foot trouble. On the report of a July 1988 National Guard medical examination, the examiner reported that the Veteran had moderate pes planus. The examiner indicated that the pes planus was asymptomatic, that the Veteran did not use orthotics, and that he had no problem running, walking, or standing. In a November 1991 medical history completed for entrance into his second period of active service, the Veteran checked "no" for any history of foot trouble. On examination for entrance into his second period of active service, the examiner checked normal for the condition of the Veteran's feet. Records of treatment during his 1991 to 1996 service do not reflect any complaints or findings involving either foot. In a medical history completed in August 1996, a few months before his December 1996 separation from his second period of active service, he checked "no" for any history of foot trouble. On examination in August 1996, the examiner checked normal for the condition of the Veteran's feet. After service, in May 1999, the Veteran sought VA treatment for bilateral foot pain due to bunions. In VA treatment in January 2000, he reported ongoing bunions, and complained that his feet were constantly cold. The VA clinician referred him for a podiatry consultation. In February 2000, he saw a podiatrist. The record of that consultation is not in the rebuilt claims file, but in March 2000, a VA physician recounted the treatment note from that podiatrist. The podiatrist's impression was bilateral bunion and bilateral reflux vasospasm. X-rays showed the congenital absence of the tibial sesamoid bone bilaterally. The podiatrist indicated that such absence might be contributing to bunion formation at a young age. A VA podiatrist prescribed orthotics to prevent further progression of the bunions. In VA treatment in May 2001, the Veteran reported that he had orthotics, but that weightbearing nonetheless aggravated the pain of his bunions. In July 2001, he submitted a claim for service connection for disabilities including bilateral foot disorders. In April 2002, the RO denied the claim and he appealed. In a February 2003 VA podiatry consultation, the Veteran indicated that he had high arches and foot pain, and requested new orthotics. The podiatrist stated that high arches were not seen. The podiatrist observed mild hallux abducto valgus deformity of both feet. The Veteran was fitted with new orthotics. In September 2003, the Veteran had a hearing at the RO before a hearing officer. He reported that he really did not experience any problems with his feet during his first period of active service. He stated that during his second period of service he experienced discomfort in his feet, especially during warm weather and when playing softball. He attributed those problems to wearing combat boots. VA treatment notes from November 2003 reflect that the Veteran had orthotics for his foot pain. Records from 2004 and 2005 reflect ongoing diagnosis of bunion and reports of foot pain. In November 2005, he reported recent onset of aching right heel pain aggravated by walking. A VA podiatrist diagnosed plantar fasciitis in addition to hallux valgus. New orthotics were provided. On VA examination in December 2005, the Veteran reported daily pain in both feet, and fatigability of the feet with excessive walking. He stated that orthotics helped. The examiner observed that the Veteran had bilateral flat feet that were mild without weightbearing and moderate with weightbearing. The examiner found mild hallux valgus with bunion formation bilaterally. There was mild tenderness of both feet on deep palpation. The Veteran did not have limitation of walking and standing during the examination, but stated that he experienced pain and fatigue in his feet if he stood or walked for a long time. The feet appeared normal on X-rays. The assessment was bilateral pes planus with hallux valgus and bunion formation bilaterally. VA treatment notes from 2007 to 2012 reflect that in August 2008 and in May 2012, he requested new orthotics. In a May 2009 feet examination, the examiner reported having reviewed the claims file. The Veteran reported having experienced pain in both feet since the 1990s. He also related having stiffness, fatigability, and lack of endurance in both feet. He indicated that the symptoms were treated with orthotics and medication. The examiner found evidence of painful motion and tenderness in the first metatarsal joint in each foot. There was hallux valgus bilaterally. There were arches present on nonweightbearing and on weightbearing bilaterally. X-rays showed normal arches in both feet. Left foot x-rays showed a mild hallux valgus deformity of the left big toe. Right foot x-rays showed mild osteopenia of the bones and a tiny plantar spur on the calcaneum. The examiner opined that it was less likely than not that the current hallux valgus was due to service. The examiner explained that the service treatment records did not contain documentation of hallux valgus. While the 1988 National Guard service examination contains a finding of moderate pes planus, the examiner found that the pes planus was asymptomatic. No disorder of either foot was noted on examination of the Veteran for entrance into his second, 1991 to 1996, period of active service. Therefore the Board presumes that the Veteran's feet were in sound condition on entry into that service period. While pes planus was found on the 1988 examination and on a 2005 VA examination, VA clinicians who examined the Veteran's arches in 2003 and 2009 did not find pes planus. As there is conflicting evidence as to whether the Veteran had pes planus, and no evidence that he had hallux valgus before entering service in 1991, there is not clear and unmistakable evidence demonstrating that a foot disorder existed prior to his second period of active service and was not aggravated by that service. Therefore the presumption of sound condition stands. The Veteran's service treatment records do not reflect any reports of complaints involving either foot. As the second element (in-service incurrence) is not demonstrated with respect to either foot, the evidence does not support a grant of benefits. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (VA may use silence in the service treatment records as evidence contradictory to a veteran's assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred). Two to three years after service, the Veteran sought treatment for bunions. In his 2003 hearing, he reported that he began to experience discomfort in his feet during his second period of active service and he is competent to recall discomfort. His recollection, however, does not tend to show what if any specific disorder was present, nor whether the discomfort was a precursor or early manifestation of the hallux valgus found after service or the pes planus found by some clinicians after service. Under the guidance in the recently-issued case of Walker v. Shinseki, the Board finds that the issue of continuity under 38 C.F.R. § 3.303(b) is not applicable because neither pes planus nor hallux valgus is among the enumerated disorders under 38 C.F.R. § 3.309(a). On the issue of medical nexus, the VA clinician who examined the Veteran in May 2009 opined that it was less likely than not that the Veteran's post-service hallux valgus was due to service. That examiner is competent to address issues of medical etiology, and that opinion carries significant evidentiary weight. Significantly, there is no contradictory medical evidence of record. Therefore, the greater weight of competent evidence is against service incurrence of the bilateral foot disorders found after service. As the preponderance of evidence is against the claim the appeal is denied. Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants 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, 3.326(a) (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). When VCAA notice is delinquent or erroneous, the "rule of prejudicial error" applies. See 38 U.S.C.A. § 7261(b)(2) (West 2002). In addition, the notice requirements of the VCAA 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. VA provided the Veteran with VCAA notice in letters issued in March 2006, May 2012, and July 2012. Those letters addressed the information and evidence necessary to substantiate claims for service connection, and informed him how VA assigns disability ratings and effective dates. The letters also addressed who was to provide the evidence. The Veteran's rebuilt claims file contains some of his service treatment records, including the records from his 1991 to 1996 period of active service. The paper and Virtual VA records include records of VA medical treatment from 1999 to 2012, and the reports of 2005 and 2009 VA medical examinations. Moreover, VA made reasonable efforts to fulfill the Board's remand instructions. The RO provided the Veteran VCAA notice. The RO obtained records of VA treatment and the Veteran's application for Social Security Administration benefits. The RO asked him to authorize VA to obtain records from a specific podiatry practice and any other relevant medical records but he did not do so. The RO asked him to provide information about when and how he experienced foot symptoms but no additional information was forthcoming. The Board acknowledges VA's duty to rebuild the claims file and VA's heightened duty to assist in the development of the claim after a VA facility lost the original claims file. In this effort, the RO completed all steps feasible. For steps that need the Veteran's cooperation, the RO requested his help, but he has not responded. The Board finds that VA has complied with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claim, as well as the avenues through which he might obtain such evidence, and the allocation of responsibilities between him and VA in obtaining such evidence. He has actively participated in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process, and he has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to have caused injury to the Veteran's interests. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless, and does not prohibit consideration of the claim on the merits. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). ORDER Service connection for a bilateral foot disorder manifested by pes planus and hallux valgus is denied. ______________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs